H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

In the Supreme Court sitting as the High Court of Justice.

[July 20, 1951]

Before: Smoira P., Dunkelblum J., Cheshin J., Agranat J., and Silberg J.

 

 

 

            Administration of Justice - Limits of judicial power - Failure by President of State to perform statutory duty as to formation of new Government - Not justiciable - Mandamus - Application for order nisi - Intervension by Attorney-General.

           

                The High Court will not issue an order of mandamus against the President of the State directing him as to the method of carrying out his duties under section 9 of the Law of Transition, 1949. Such a matter is not justiciable.

               

                By section 11(d) of the above-mentioned Law "The Government which receives a vote of no-confidence from the Knesset, or which has decided to resign, shall immediately tender its resignation to the President of the State, but it shall continue to exercise its functions pending the constitution of a new Government in accordance with the provisions of this Law." Section 9 provides that "after consultation with representatives of the party groups in the Knesset, the President of the State shall entrust a member of the Knesset with the task of forming a Government." The Government having resigned on February 14, 1951, following upon a vote of no confidence, the President held consultations with the representatives of the parties and entrusted the Prime Minister with the task of forming a new government. When the latter declined to do so, the President notified the Speaker of the Knesset that as a result thereof and of the consultations he had held, he had reached the conclusion that pursuant to section 11(d) of the Law of Transition the Government which had resigned must remain in office until the formation of a new Government after general elections.

 

                The petitioners, members of the Knesset, contended that under section 9 it was the duty of the President, once one member had declined to accept the task of forming a new government, to entrust it to any other of the remaining 119 members of the Knesset, before concluding that it was necessary to hold general elections. They applied for an order of mandamus.

               

                Held: The President although in a sense the highest public officer in the State, is not semble a "public officer" for the purposes of that part of section 7 of the Courts Ordinance, 19401), which empowers the Supreme Court. sitting as a High Court of Justice to give orders to public officers in connection with the execution of their duties. Notwithstanding that the jurisdiction of the High Court under Article 43 of the Palestine Order in Council, 19222), "to hear... matters necessary to be decided for the administration of justice", is wider than that conferred by section 7, it does not extend to the subject of the petition, which raises a matter that is not amenable to judicial determination and decision, but is one affecting the executive and political, and not the ministerial, powers of the President.

 

                Joint Anti-Fascist Committee v. Attorney-General of the United States (71 S. Ct. 673) referred to.

               

                The Attorney-General appeared at the hearing of the petition to object to the issue of the order nisi by virtue of his powers under section 6 of the Law of Procedure (Amendment) Ordinance, 1934, which gives him the right to intervene in any matter pending before "any civil or criminal court" if it appears to him that the rights of the Government of Israel are involved or that it is necessary to do so in the public interest.

               

                Held, overruling an objection to his appearance, that the High Court is a "civil court" within the meaning of section 6, and that rule 4 of the High Court Rules, 1947, which provides that an application for an order nisi will be heard ex parte, does not bind the court to hear the application in the presence of the petitioners alone. The very nature of the petition justified the intervention of the Attorney-General at the present stage in the proceedings.

 

English case referred to:

(1)        The Parlement Belge; (1879-80), 5 P.D. 197.

 

American cases referred to:

(2)        U.S. v. Aaron Burr; (1807), Robertson's Rep., I, 121.

(3)        Bandini Petroleum Co. v. Superior Court; 52 S. Ct. 103.

(4)        Allen-Bradley Local No. 1111 ect. v. Wisconsin E. R. Board; 62 S. Ct. 820.

(5)        Tennessee Pub. Co. v. American National Bank; 57 S.Ct. 85.

(6)   Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States; 71 S. Ct. 673.

(7)        Aetna Life Ins. Co. of Hartford, Conn. v. Haworth; 57 S. Ct. 461.

(8)        David Muskrat v. United States; 1911, 31 S. Ct. 250.

(9)        Mississippi v. Johnson; (1867), 4 Wall. 475, L. ed. 437.

(10)      McCulloch v. Maryland; (1819), 4 Wheat. 316, 4 L. ed. 579.

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

H. H. Cohn, Attorney-General (with Naomi Salomon) intervening.

 

SMOIRA P., giving the judgment of the court.

 

            This is an application for an order nisi against the President of the State, requiring him to appear and show cause why he should not call upon a member of the First Knesset1) to form a new government and, if he fail, why one member after another should not be called upon until one of them finally succeeds in constituting a government which will enjoy the confidence of the Knesset. The petition is based upon an expression of no-confidence by the Knesset on February 14, 1951, in the government headed by Mr. Ben-Gurion, and upon the submission to the President of the government's resignation on the same day.

            The following facts are set out in the petition.

           

            The Prime Minister submitted the resignation of the government to the President on February 14, 1951, and on February 18 and 19, 1951, the President held consultations with the representatives of the various parties in the Knesset. On February 21, 1951, the Prime Minister visited the President and on February 25, 1951, the President sent a letter to the Prime Minister which concluded as follows:

           

            "...I have decided, before invoking the final remedy - the remedy of elections - to request you to make a further effort to reach a stable and satisfactory solution, within the framework of the present Knesset, and to form a new government which will enjoy the support of the majority of its members.

           

            I know that this will not be easy to achieve in the present situation, but I am convinced that it is my duty to request it of you.

           

            I would ask you to inform the other parties with whom you will consult of my request, and to convey to them my hope that they will cooperate with you so that a stable and satisfactory arrangement may be reached. I pray that you may succeed."

 

            The Prime Minister, in his reply to the President's letter of February 27, 1951, wrote:

           

            "If, Mr. President, you see any prospect of the formation of a government which will enjoy the confidence of a majority of the Knesset, it is for you to approach the representatives of any of the parties which voted against the present government. If any one of them succeed in forming a government, I shall gladly hand over my office to him with my sincere good wishes for success in his task.

           

            If this should not be possible and the majority of Mapam Herut. the United Religious Front, the Communists and the General Zionists1) who voted against the government, are unable to form a government, even for a period of transition, then section 11(d) of the Law of Transition, 1949, will come into operation. This obliges the present government, of which I have the honor to be the head, to remain in office until the formation of a new government, after elections."

 

            On March 5, 1951, the President sent a note to Mr. Yosef Sprinzak, the Speaker of the Knesset, in which he wrote, inter alia : -

           

            "After reading the reply of Mr. Ben-Gurion and as a result of the consultations with representatives of the parties in the Knesset, I have reached the conclusion that the government which resigned should remain in office in accordance with the Law of Transition until the formation of a new government after the elections."

 

            On March 21, 1951, the petitioners requested an interview with the President. They were informed that his state of health did not permit him to receive them and on March 28, 1951, the petitioner, Eri Jabotinsky, sent a letter to the President's private secretary in these terms: -

           

            "We wished to try and convince the President that it is his duty to impose upon one of the members of the Knesset the task of forming a government which would function until the convening of the Second Knesset but which would in the meantime enjoy the confidence of the present Knesset. I do not think there is any point in stating my grounds to the President here. The majority of them are known from the debates in the Knesset and from the press - in particular Ha’aretz. The Law of Transition lays down the President's duty in this matter in clear terms. The letters of the President to Mr. Ben-Gurion and to the Speaker of the Knesset also show clearly that the President has not yet imposed the task of forming a government upon any member of the Knesset and that after his failure with Mr. Ben-Gurion, he discontinued his efforts. These points are all well known. As far as the political arguments which we wished to raise in our conversation with the President are concerned, his state of health will no doubt prevent him from considering them in the period permitted by the present circumstances.

 

            In view of the impossibility of discussing the matter fully with the President I am now considering bringing the case at the beginning of next week before the Supreme Court - the only body which can determine the legality of the position. I would ask you to convey to Dr. Weizmann that, in so doing, I have no intention of offending him personally in any way whatsoever. I have long been of opinion that our Supreme Court should gradually become the final arbiter in constitutional questions affecting the State. The seriousness of the matter now in issue and the need for its legal clarification create the opportunity for the Supreme Court to enter upon this task."

 

            On April 16, 1951, the petitioners lodged this application. They submit that the President of the State had no authority to approach the Knesset directly on a political or legal-constitutional question. Their main contention is that the President has contravened the provisions of section 9 of the Law of Transition, 1949, in that for a lengthy period of more than two months he has failed to discharge his legal and constitutional duty of imposing upon one of the members of the Knesset the task of forming a new government.

 

            The petition also contains the following submissions:

           

            The President infringed the rights of the Knesset when, without first finding out whether the member whom he called upon would accept the task, he charged that member of the Knesset with the task of forming a new government and did not see fit to charge any of the other 119 members of the Knesset with the same task.

           

            In consequence of the failure of the President to fulfill his duty, a situation has been created which is inconsistent with the law of the State. In addition, the government which has resigned - which is in fact continuing to function without enjoying the confidence of the First Knesset - is an illegal government. It is the duty of the President, no matter what the consequences may be, to bring about the formation of a new government which will enjoy the confidence of the Knesset. The present situation destroys parliamentary and democratic rule and violates the principle of the collective responsibility of the government towards the Knesset. If the same government in which the Knesset has no confidence, continue functioning, then the Knesset will he given no opportunity of expressing again its lack of confidence. It has done so once and no new vote will add anything. As a result, the government which has resigned has in fact the full power of doing what it likes, untrammeled by law or the opinion of the Knesset.

           

            The petitioners do not see a remedy for the situation in the fact that July 30, 1951, has been fixed by law as the date for the elections to the Second Knesset. They submit that for a period of approximately five months - until the formation of a new government after the elections and the convening of the Second Knesset - an illegal situation will continue.

           

            The Knesset cannot force the President to discharge his legal and constitutional duty. It is only the Supreme Court, sitting as the High Court of Justice, which can order the President to charge a member of the Knesset with constituting a new government.

           

            This is a summary of the petition.

           

            The Attorney-General, having learned of the presentation of this petition, appeared on the day of the hearing and asked leave, in terms of section 6 of the Law of Procedure (Amendment) Ordinance, 1934, to submit his arguments in the matter since it appeared to him that the rights of the Government of Israel were involved and it might be injurious to the public interest to hear the petition in his absence.

           

            He raised the preliminary point that no petition of any kind against the President of the State could be entertained by this court. Mr. Nohimovsky objected to the appearance of the Attorney-General at this stage - namely, before the issue of an order nisi. He submitted that although the Supreme Court, sitting as the High Court of Justice, is a "civil court" within the meaning of Article 38 of the Palestine Order in Council1), it is not a civil court within the meaning of section 6 above, where the expression is employed in contradistinction to a "criminal court." He further submitted that in terms of rule 4 of the High Court Rule, 1937, a petition for an order nisi is to be heard ex parte.

           

            The court rejects these arguments of Mr. Nohimovsky for two reasons.

           

            (a) Section 6 referred to above speaks of "any civil or criminal court," and there is no reason for excluding the High Court of Justice from the expression "civil court" in the comprehensive sense in which it is used in Article 38 of the Order in Council. In our opinion, the very nature of the petition brought before this court requires that the Attorney-General should be afforded the right of intervention, even at this stage.

           

            (b) It is true that the Rules of 1937 provide that an application for an order nisi should, as a general rule, be made ex parte. They do not, however, bind the court to hear such au application in the presence of the petitioner alone.

           

            The Attorney-General submitted two arguments: -

           

            (1) That this court will not entertain an application against the President of the State;

           

            (2) That this court has no jurisdiction to hear the petition.

           

            The first argument is that the President of the State enjoys general immunity and cannot be brought before the courts. The second argument is that in accordance with the existing law, this court has no jurisdiction to deal with the present petition.

 

(In the course of his argument counsel here referred to the Bible, the Talmud, and the works of Maimonides, but the court, holding that these sources were not relevant in the case, continued:)

 

            In passing to more mundane sources, the Attorney-General compared the position of the King of England and his immunity from all claims before the courts with that of our President. As authority for this proposition he relied upon Blackstone, as quoted in the case of the Parletment Belge (1). We there find statements such as these: "Our king", says Blackstone, "owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him ...authority to try would be vain and idle without an authority to redress, and the sentence of a court would be contemptible unless the court had power to command the execution of it, but who shall command the king?" And in the same judgment Brett L.J., relying upon Blackstone, states that the real principle upon which the immunity is based is that the exercise of such jurisdiction would be incompatible with the king's regal dignity. The Attorney-General also wished to deduce from Article 46 of the Palestine Order in Council that the principle, precluding the bringing of the king before the courts as incompatible with his dignity, also applies to the President of the State of Israel and that this court may not therefore enquire into the actions of the President.

           

            These arguments moved Mr. Fishelev, counsel for the petitioners, to contend that these principles apply to an absolute monarchy and have no place in the democratic regime of the State of Israel.

           

            We too are of the opinion that the writings of Blackstone on the position of the King of England have no relevance here. An apt answer to this approach was given in the year 1807 by Chief Justice Marshall of the United States in his judgment in the case of United States v. Aaron Burr (2). The question that arose in that case was whether it was possible to summon the President of the United States as a witness for the defence and to order that he appear. Marshall C.J. said, inter alia: -

           

            "Although he (the King) may, perhaps, give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the First Magistrate in England and the First Magistrate in the United States, in respect to the personal dignity conferred upon them by the constitutions of their respective nations, the court will only mention two. (1) It is a principle of the English Constitution that the King can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the Constitution of the United States the President, as well as every other officer of the government, may be impeached and may be removed from office on high crimes and misdemeanors. (2) By the Constitution of Great Britain the Crown is hereditary and the monarch can never be a subject. By that of the United States, the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again. How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the executive chief, will be perceived by every one."

 

            I shall not add any comments of my own to these dicta of the distinguished Chief Justice of the United States. Every one will appreciate that in regard to the question of immunity before the courts, the position in this country is analogous to that in the United States and not to that in England.

           

            Whether the President is to enjoy immunity is not to be gathered by reference to the immunity of a monarch. In view, however, of the decision which we have reached on the question of jurisdiction, we need not decide in this case whether the President enjoys immunity or not.

           

            As I have said, the Attorney-General, in the course of his argument, placed the emphasis upon this court's lack of jurisdiction to deal with the petition and grant a mandamus against the President and it is, in our opinion, the answer to the question whether this court has jurisdiction which determines the fate of this petition.

           

            On this question too, lengthy arguments were addressed to us, and points raised which are irrelevant. It is our first task, therefore, to limit the scope of our consideration. The matter before us is a constitutional one. It is an accepted rule, as laid down also in the United States, that "Constitutional questions are not to be dealt with abstractly", Bandini Petroleum Co. v. Superior Court; (3), at p. 108. "It is a familiar rule that the court will not anticipate the decision of a constitutional question upon a record which does not appropriately present it", Tennessee Pub. Co. v. American National Bank; (5), at p. 87.

           

            In the light of this principle we shall confine our discussion:

           

            (a) to the subject-matter of the case, namely, the alleged contravention of section 9 of the Law of Transition, as argued by the petitioners;

           

            (b) to the prayer, namely, the granting of a writ of mandamus against the President.

           

            The basic provision defining the jurisdiction of this court in the matter before us is section 17 of the Law and Administration Ordinance, 1948, which lays down that: -

           

            "So long as no new law concerning law courts has been enacted, the law courts existing in the territory of the State shall continue to function within the scope of the powers conferred upon them by law."

           

            It follows that, in the absence of a law extending its jurisdiction, the High Court of Justice in the State of Israel has no wider powers than those which were enjoyed by it in the time of the Mandate. Counsel for the petitioners emphasised, in fact, that they do not ask us to assume powers wider than these, but they request that we exercise the jurisdiction conferred upon us by law. Their submission, so they say, is de lege lata.

           

            The law relating to the jurisdiction of this court is to be found in Articles 38 and 43 of the Order in Council of 1922 and section 7 of the Courts Ordinance of 1940. Nothing relevant to the present case can be learned regarding jurisdiction from Article 38, which merely provides that the courts "hereinafter described shall exercise jurisdiction in all matters and over all persons" in the country. This jurisdiction is defined, however, in Article 43 of the Order in Council and in section 7 of the Ordinance.

           

            As I shall explain later there is no necessity for us to determine the extent of our jurisdiction under section 7(b) of the Courts Ordinance. 1940, which confers jurisdiction upon this court to issue orders of mandamus and injunctions against public officers and public bodies. We are in fact of the opinion that the President of the State is not a "public officer" within the meaning of the definition in the Interpretation Ordinance of 1945, though he is, in a wider sense, the highest public officer in the State.

           

            As I have said, however, there is no need for us to determine our jurisdiction under section 7(b) of the Courts Ordinance since this court has decided on numerous occasions that the limits of its jurisdiction under Article 43 of the Order in Council are wider than the limits laid down in section 7 of the Ordinance.

 

            I agree with the submission of counsel for the petitioners that we must decide the question of our jurisdiction de lege lata. With this, however, we put an end to all their submissions based upon the constitutions of other countries. The doctrine of impeachment, in the various forms which it assumes in different countries, has no relevance for us in this case. It is inconceivable that this court would assume to itself a power such as that of impeachment without a specific provision in the law to that effect. Counsel for the petitioners conceded, moreover, that the purpose of impeachment is to remove the head of the State from his office by reason of the commission of an offence such us treason or some other serious offence. This is stated expressly in the constitution of the United States, and this is the interpretation given to the expression "haute trahison" in the French constitution. And the petitioners have stated repeatedly that they do not seek the removal of the President but an order of mandamus.

           

            We return to the only question before us, namely, whether this court has jurisdiction to issue a mandamus against the President of the State in respect of his alleged failure to act in accordance with section 9 of the Law of Transition, 1949. We can decide this question de lege lata only on the basis of Article 43 of the Order in Council. We do not accept the contention that us the President is not mentioned in the Law and Administration Ordinance of 1948, for that reason alone we have no jurisdiction to deal with the petition. The whole force of statute law - which provides for the norm and not for exceptions - lies in its power to create machinery for dealing with situations which do not yet exist when the law is promulgated. Section 11 of the Law and Administration Ordinance, 1948, provides expressly, moreover, that the existing law shall remain in force subject to such modifications as may result from the establishment of the State and its authorities. The fact, therefore, that the high office of President of the State did not actually exist when the Law and Administration Ordinance was enacted does not stand in the way of our applying the law today to the President. Had the petition on its merits fallen within the provisions of Article 43 of the Order in Council of 1922 it would have been possible and necessary to entertain it.

           

            The field of enquiry is narrowed down to this: is the subject-matter of the petition and the prayer among the "matters necessary to be decided for the administration of justice?" Is the present petition a matter which calls for judicial decision? Some assistance in clarifying this problem may be derived from an examination of authorities in the Supreme Court of the United States .

 

            In terms of Title 3 Section 2 of the American Constitution, "cases and controversies" are made amenable to judicial decision, and these expressions - and the limits of judicial power in general - have been defined in a long list of cases. The most recent judgment is that of Justice Frankfurter of April 30, 1951, in the case of Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States (6). Let me cite some extracts from this judgment: -

           

            "...in a case raising delicate constitutional questions it is particularly incumbent first, to satisfy the threshold enquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination’?” Aetna Life Ins. Co. of Hartford , Conn. v. Haworth, (7).

 

            At first sight there is a distinction between the language of the American Constitution which makes "cases and controversies" amenable to judicial determination, and the language of Article 43 which employs the expression "matters." But it has been held in the United States that the expression "cases" is wider than the expression "controversies". See David Muskrat v. United States (8) at p. 954.

           

            "The judicial article of the Constitution mentions cases and controversies. The term "controversies", if distinguishable from "cases", is so in that it is less comprehensive than the latter, and includes only suits of a civil nature."

 

            Mr. Nohimovsky, counsel for the petitioner, emphasised the wide term "matters", from which he sought to derive our jurisdiction. Even if we assume that the term "matters" is wider than "cases and controversies" we have still to enquire what are the matters which are submitted to our jurisdiction. They are only those "matters... necessary to be decided for the administration of justice." By the addition of these words the legislature has set limits to the area of "matters" in the ordinary meaning of that expression. In regard to this it was submitted by counsel for the petitioners that we must interpret the expression "justice" by reference to philosophical, religious and moral sources. We are not prepared to adopt this system of interpretation which is completely unlimited in scope and obscures the limits of judicial power.

           

            Justice Frankfurter said the following in connection with this problem in his judgment referred to above: -

           

            "Limitation on 'the Judicial Power of the United States' is expressed by the requirement that a litigant roust have 'standing to sue', or more comprehensively, that a Federal Court may entertain a controversy only if it is 'justiciable'. Both characterizations mean that a court Grill not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was generally speaking the business of the Colonial Courts and the Courts of Westminster when the Constitution was framed. The jurisdiction of the Federal Courts can be invoked only under circumstances which to the expert feel of lawyers constitute 'a case or controversy'. The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously.''

 

            With all respect to the learned judge, I find in these remarks an excellent definition of the limits of judicial power. The reply to the question what are the matters which are necessary to be decided for the administration of justice cannot be drawn from the wide sea of philosophical, religious and moral relationships. To do w would be to widen those limits so as to include every matter necessary for human progress. On the other hand such limits cannot be defined by a purely geometrical formula. In leaving the matter to be decided by "the expert feel of lawyers" the learned judge readily concedes the intellectual impossibility of an accurate and absolute definition. We, as judges, must find the answer to the question whether the matter, in the language of the United States judgment, is "appropriate for judicial determination" or, in the language of our Article 43, is "necessary to be decided for the administration of justice", by bringing to bear our legal and judicial understanding.

           

            We also attach importance to the words of Justice Frankfurter relating to the "business of the Colonial Courts and the Courts of Westminster". We find in this remark the connecting link between the language of the American Constitution and that of Article 43 of the Order in Council.

           

            The question before us, therefore, is whether the petitioners have placed before the court a matter which is justiciable, a matter which is proper for judicial determination.

           

            The complaint of the petitioners is that the President of the State has failed to comply with section 9 of the Law of Transition or, at the least, that he has not exhausted the possibilities envisaged in that section by making repeated attempts to impose the task of forming a new government upon one of the remaining 119 members of the Knesset after the first member upon whom that task was imposed failed in his attempt. The petitioners ask us to order the President to continue imposing the task of forming a government upon members of the Knesset until one of them who undertakes this mission succeeds in forming a new government which enjoys the confidence of the Knesset.

 

            According to the reasoning which underlies the petition it will be the duty of this court to examine and determine whether, in his first or second or third attempt to do what is requested of him, the President of the State has discharged the duty imposed upon him by section 9 of the Law of Transition, or whether he must continue in his attempts. In order to decide the matter this court will have to consider the effectiveness of the imposition of the task in question upon one or other of the members of the Knesset. It is sufficient to point out the consequences of such a process in order to show that the present petition falls completely outside the limits of judicial determination.

           

            If the "expert feel of lawyers" is to be invoked, it may be said generally that the whole subject of the duty of forming a government in accordance with section 9 of the Law of Transition is non-justiciable and beyond the scope of judicial determination. The relationships involved are in their very nature outside the field of judicial enquiry; they are relationships between the President of the State, the government and the Knesset, that is to say, the executive and parliamentary authorities. If the question of a failure to comply with section 9 should arise, the remedy must be found through parliamentary means, that is to say, in the reaction of the Knesset to a government which, in its opinion, does not even possess the right to exist in transition in accordance with section 11(d) of the Law of Transition. That section provides that the government, after its resignation, shall continue in office until the formation of a new government in accordance with the provisions of that Law.

           

            It is highly significant that counsel for the petitioners did not cite a single authority from other countries in which a court directed the President of the State, in any form whatsoever, to follow a particular course in the discharge of his executive functions.

           

            We have reached the conclusion that the matter before us is not one which is amenable to judicial determination and decision. We point with satisfaction to the accord between our decision and those of the Supreme Court of the United States which, as is well known, has considerable experience in examining the boundaries between the respective functions of the three authorities of the State. Counsel for the petitioners invited us to follow in the footsteps of the Supreme Court of the United States, and strongly relied upon a saying that that court is in fact the Constitution. Just because of that, however, it is desirable to point to the care taken by the American Supreme Court not to overstep the boundary. Here are some examples.

 

            In the case of Mississippi v. Johnson (9), the court was asked to issue an injunction against the President of the United States restraining him from enforcing a law passed by Congress relating to the administration of the State of Mississippi. It was argued by the petitioners that the law in question was ultra vires the Constitution of the United States.

           

            Chief Justice Chase drew a distinction in his judgment between the ministerial and the executive and political duties of the President of the United States, and said:-

           

            "An attempt on the part of the judicial department of the Government to enforce the performance of such (executive and political) duties by the President might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance' . . . It was admitted in the argument that the application now made to us is without a precedent and this is of much weight against it . . . The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained."

 

            I may mention incidentally that there is in the last sentence quoted a hint of the conception mentioned by Justice Frankfurter in his recent judgment in which he speaks of the "expert feel of lawyers". In his judgment in the case of M'Culloch v. Maryland (10), Chief Justice Marshall deals with the boundaries between the functions of the legislative authority and the judicial authority, and we may say, following him, that were we to accede to the request of the petitioners in this case, we would exceed the limits of judicial authority and trespass upon the preserves of the political and executive authorities. In the language of Chief Justice Marshall, "this court disclaims all pretensions to such a power. ' '

           

            The question brought before us is one affecting the executive and political powers of the President, and is beyond the scope of judicial authority.

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.

H.C.J  73/53

H.C.J  87/53

 

"KOL HA'AM" COMPANY LIMITED

v.

MINISTER OF THE INTERIOR

H.C.J 73/53

 

 

"AL-ITTIHAD" NEWSPAPER

v.

MINISTER OF THE INTERIOR

H.C.J 87/53

 

 

In the Supreme Court sitting as the High Court of Justice.

[October 16, 1953]

Before: Agranat J., Sussman J., and Landau J.

 

 

 

Newspaper - Press Ordinance, s. 19(2) (a) - Suspension of newspaper by Minister of Interior - Probability that publication danger to public peace -  Freedom of expression.

 

            Two communist newspapers, respectively owned by the petitioners, published articles containing material which, in the opinion of the Minister of the Interior, was likely to endanger the public peace, and acting under s. 19(2) (a) of the Press Ordinance1) the Minister suspended both the newspapers for periods of ten and fifteen days respectively. On the return to orders nisi calling upon the Minister to show cause why the orders of suspension should not be set aside,

           

            Held : In exercising his power of suspension under s. 19(2) (a) of the Press Ordinance, the guiding principle is that the Minister must consider whether it is probable that as a consequence of the publication a danger to the public peace has been disclosed. A mere tendency to endanger the public peace will not suffice to fulfil that requirement Even if he is satisfied that the public peace is likely to be endangered by the publication, the Minister must nevertheless consider whether that danger is so grave as to justify the use of so drastic a power as suspension of a newspaper. Although the court will not interfere with the discretion of the Minister when properly exercised, the Minister in this case had not considered the probability of the public peace being endangered, but had acted in the belief that a mere tendency in this direction was sufficient.

           

            In the circumstances the orders of suspension had been wrongly issued and should be set aside.

 

Israel cases referred to:

(1)        Cr. A. 95, 99/51; Podamski and Others v. Attorney-General; (1952), 6 P.D. 341.

(2)        Cr. A. 24/50; Gorali v. Attorney-General; (1951), 5 P.D. 1145 .

(3)   H.C. 10/48; Zeev v. Gubernik, District Commissioner, Urban District of Tell Aviv and Another; (1948), 1 P.D. 85.

 

English cases referred to:

(4)        R. v. Secretary of State for Home Affairs, ex parte O'Brien (1923) 2 K.B. 361.

(5)        R. v. Cuthell, (1799), 27 How. St. Tr. 642.

(6)        Ronnfeldt v. Phillips, (1918), 35 T.L.R. 46.

(7)        Attorney-General v. De Keyser's Royal Hotel, Limited (1920) A.C. 508.

(8)        John Drakard's Trial : (1811), 31 How St. Tr. 495.

(9)        Leigh Hunt's Trial : (1811), 31 How St. Tr. 367.

(10)      R. v. Muir, (1793) 23 How. St. Tr. 117.

(11)      Wilkes v. Wood, (1763), 19 How. St. Tr. 1167.

 

American cases referred to:

(12)      Abrams et al. v. United States, (1919), 40 S. Ct. Rep. 17.

(13)      United States v. Associated Press, 52 Federal Supplement 362 (S.D.N.Y. 1943).

(14)      Whitney v. People of the State of California, (1926) 47 S.Ct. Rep. 641.

(15)      Schenck v. United States, Baer v. Same; (1918), 39 S.Ct. Rep. 247.

(16) Schaefer v. United States, Vogel v. Same, Werner v. Same, Darkow v. Same, Lemke v. Same; (1919), 40 S.Ct. Rep. 259.

(17)      Dennis et al. v. United States; (1951), 71 S. Ct. Rep. 857.

(18)      Cantwell et al. v. State of Connecticut; (1939) 60 S.Ct. Rep. 900.

(19)      Near v. State of Minnesota ex. rel. Olson Co. Atty.; (1930) 51 S. Ct. Rep. 625.

(20)      Gitlow v. People of the State of New York; (1924), 45 S. Ct. Rep. 625.

 

Weitzner for the petitioner Kol Ha'am Company Limited.

Nakkara for the petitioner Al-Ittihad.

H. H. Cohn, Attorney-General, for the respondent.

 

AGRANAT J., giving the judgment of the court.

            Section 19(2) (a) of the Press Ordinance, as amended, provides as follows :-

           

            ''(2) The High Commissioner either with or without having caused the proprietor or editor of a newspaper to be warned under subsection (1) hereof, may

    (a) if any matter appearing in a newspaper is, in the opinion of the High Commissioner in Council, likely to endanger the public peace,

            ………………………………….

by order in council suspend the publication of the newspaper for such period as he may think fit and shall state in the said order the period of such suspension."

 

The Minister of the Interior now takes the place of the High Commissioner.

 

            Relying on the provision I have cited the respondent, on May 22, 1953, ordered the suspension of the publication of the newspaper "Kol Ha'am" (which belongs to the petitioner in file No. H.C. 73/53) for a period of ten days, and, on April 14, 1953, ordered the suspension of the publication of the newspaper "Al-Ittihad" (the petitioner in file No. H.C. 87/53) for a period of 15 days. The immediate reason that led the Minister of Interior to make the orders for suspending the publication of the aforementioned newspapers was the printing in each one of them of a leading article, namely in "Kol Ha'am" on March 18, 1953, under the title "Let Abba Eban Go and Fight Alone..." and in "Al-Ittihad" on March 20, under the title "The People will not Permit Speculation in the Blood of its Sons". The ground for the criticism that was voiced in both of the articles was a news item published in the newspaper "Ha-aretz" on March 9, 1953, in these words :

           

            "Mr. Henry Morgenthau stated that Georgei Malenkov was obviously worse than Stalin, and when the fatal hour came, Israel would place 200,000 soldiers at the side of the United States.

 

            "Israel's Ambassador, Mr. Abba Eban, expressed his agreement with Mr. Henry Morgenthau's statement that Israel could place 200,000 soldiers at the side of the United States in the event of war, and added that Mr. Morgenthau did not sufficiently appreciate Israel's recruiting capacity".

           

            The authors of the two articles regarded this news item as a typical sign of the "anti-Soviet policy" of the Government of Israel, as at present constituted, that is to say, of the policy of readiness "to fight at the side of the United States in the event of war against the Soviet Union"; and each of them warned against this policy in the manner described below. Copies of the full contents of the said articles are appended as a supplement to this judgment, and we shall therefore confine ourselves at this point to quoting certain passages in order to learn, on the one hand, in what form the authors voiced their protest against the matters contained in the news item published in Ha'aretz" and in order to ascertain, on the other hand, the attitude of the Minister of the Interior, who was of the opinion that each of the two articles contained material likely to endanger the public peace.

 

            The article in "Kol Ha'am" concludes with these three paragraphs:

           

            "Despite the anti-Soviet incitement, the masses in Israel know that the Soviet Union is faithful to the policy of the brotherhood of peoples and peace. The speeches of Comrades Malenkov, Beria and Molotov have once more confirmed that. If Abba Eban or anyone else wants to go and fight on the side of the American warmongers, let him go, but go alone. The masses want peace and national independence, and are not prepared to give up the Negev in return for joining the 'Middle East Command'.

           

            "Let us increase our struggle against the anti-national policy of the Ben-Gurion Government, which is speculating in the blood of Israel youth.

           

            "Let us increase our struggle for the peace and independence of Israel".

           

            In the course of the evidence he gave on behalf of the respondent, Mr. Moyal (the Director General of the Ministry of the Interior) declared, that it was mainly the second paragraph that constituted the basis for the Minister of the Interior's decision concerning the suspension of the publication of the newspaper "Kol Ha'am". The article in the newspaper "Al-Ittihad" concluded (according to the translation from the Arabic original) with the following two paragraphs :

           

            "And so all forms of surrender by the Ben Gurion Government, and all her demonstrations of faithfulness, will not avail her with her American masters; moreover, her economic, political and state bankruptcy, internal and external, are beginning to be revealed to the masses, who have started to understand whither this Government is dragging them - not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine, whilst those masses do not want that fate and will demonstrate their refusal.

 

            "If Ben-Gurion and Abba Eban want to fight and die in the service of their masters, let them go and fight by themselves. The masses want bread, work, independence and peace, will increase their struggle             for those objectives, and will prove to Ben-Gurion and his henchmen that they will not allow them to speculate in the blood of their sons in order to satisfy the will of their masters."

 

            In the body of the order that was issued for the suspension of that newspaper, the ground given - and repeated by Mr. Moyal in his evidence before us - was that, essentially, it was the matter contained in the first paragraph that moved the Minister of the Interior to order the temporary suspension of the newspaper in the Arabic language.

           

            For the sake of completeness, it should be noted that, on March 23, 1953, the Prime Minister announced in the Knesset, in reply to a question that had been put to him, that the news item published in the newspaper "Ha'aretz" was a "piece of journalistic imagination", and that all that the Israel Ambassador had declared on the occasion in question was:

           

"The Governments of the free world are well aware of the declared purpose of Israel to defend its borders and its form of government against revolution and attack" ("Divrei Haknesset", Second Session, Issue No. 19, p. 1096).

 

            From time to time, a case reaches this court which raises some fundamental problem, demanding the reconsideration of ancient and well-worn principles. The two cases in question here belong to that group, and we are called upon to define the relationship that exists between the right to freedom of the press on the one hand, and on the other, the power held by the authorities, by virtue of the said section 19 (2) (a), to place a limit on the use of that right. We regard the freedom of the press as one specific form of the freedom of expression, and we shall not hereafter, for the purpose of our judgment, distinguish between two concepts.

           

A. The principle of freedom of expression is closely bound up with the democratic process. In an autocratic regime, the ruler is looked upon as a superman and as one who knows, therefore, what is good and what is bad for his subjects. Accordingly, it is forbidden openly to criticise the political acts of the ruler, and whoever desires to draw his attention to some mistake he has made has to do so by way of direct application to him, always showing an attitude of respect towards him. Meanwhile, whether the ruler has erred or not, no one is permitted to voice any criticism of him in public, since that is liable to injure his right to demand obedience. The historian of the criminal law in England teaches us that, in the light of that approach until the end of the 18th century, every act of criticism in writing of persons performing public functions in England, concerning their conduct in such capacity, or of the laws and institutions of that State, was regarded as falling within the scope of the offence of "sedition" (Stephen, Criminal Law, Volume II, p. 348). On the other hand, in a state with a democratic regime - that is, government by the "will of the people" - the "rulers" are looked upon as agents and representatives of the people who elected them, and the latter are entitled, therefore, at any time, to scrutinize their political acts, whether with the object of correcting those acts and making new arrangements in the state, or with the object of bringing about the immediate dismissal of the "rulers", or their replacement as a result of elections.

 

            This simple understanding of the democratic regime inevitably leads, therefore, to the enforcement of the principle of freedom of expression in every state where such a form of government exists; that is to say, that it embraces a logical justification for the application of that principle. But anyone who confines himself to that notion alone and pursues it to its logical extreme must, whether he likes it or not, come to the conclusion, as Stephen notes (ibid., p. 300), that in accordance therewith, there remains in fact no possibility of imposing any prohibition on any criticism of the government in power, except perhaps to prohibit incitement calculated to result in the immediate injury to the life, limb or property of another. In other words, such a definition of the character of the democratic regime does not provide us with any serious contribution to the solution of the problem with which we are faced - a problem which is fundamentally one of placing proper limits - having regard to the general good and the interests of the state - on the wrongful exploitation by the individual citizen of the right of freedom of expression. So, in order to find such a solution, we must first of all consider the values involved in the exercise of that important right. It is important that we should previously acquaint ourselves with the interests that that right is designed to protect. But, for that purpose, we must necessarily arrive at a deeper understanding of the nature of the democratic regime than that which we described above.

           

            Democracy consists, first and foremost, of government by consent, the opposite of government maintained by the power of the mailed fist; and the democratic process, therefore, is one of selection of the common aims of the people and the means of achieving them, through the public form of negotiation and discussion, that is to say, by open debate and the free exchange of ideas on matters of public interest (see Reflections on Government, by E. Barker, p. 36). "Public opinion" plays a vital part in that discussion, carried on through the political institutions of the state, such as parties, general elections and debates in the legislature - and it plays that part not only when the citizen goes to the polls, but at all times and in all seasons. To the sensible statesman, it is evident - as that learned author, Lindsay, explains (see his book, The Modern Democratic State, Volume 1, p. 270) - that he must take public opinion into account from day to day, since it is the ordinary citizen who feels it when statutes are incompatible with his needs; he is the one who knows whether "the shoe pinches" too much, and where it pinches. "The public, it is true, is not acquainted with details", notes Prof. Roth, in Chapter I, "Government of the People by the People" (p. 19). "He only knows, for example, that war disturbs him or that the price of essential commodities is greater than his financial capacity. A very important part of the tasks of democracy is to make it possible for those feelings to come out into the open and be solved in a legal way fixed in advance, and the feelings are plain enough even to the ordinary man, even though he is not expert in the scientific analysis of the causes and their solution. 'A man's heart feels the bitterness of his own soul'; and if the ordinary man does not know how to put things right, he certainly knows what it is that needs putting right." There exists, in fact, not only the perpetual process of clarification of public opinion, but also its shaping. There is considerable educational value for the ordinary citizen in that system of public discussion and general negotiation. By following, to a greater or lesser extent, in the press the speeches and debates conducted in the legislature, for example, he learns what he needs and is thus assisted in determining his attitude (Roth, ibid., p. 39).

 

            Basically, the whole of the aforementioned process is none other than a process of investigating the truth, in order that the state may learn how to reach the most satisfactory objective and know how to select the line of action most calculated to bring about the achievement of that objective in the most efficient manner. Now, the principle of freedom of expression serves as a means and an instrument for the purpose of investigating that truth, since only by considering 'all' points of view and a free exchange of 'all' opinions is that 'truth' likely to be arrived at. In his famous judgment in the case of Abrams v. U.S., (12), Justice Holmes said:

           

"But when men have realized that time has upset many fighting faiths, they may come to believe... that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be safely carried out."

           

            Another American judge expressed a similar idea when he noted that freedom of expression is founded on the assumption that "right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection" (from the observations of Learned Hand J. in the case of U.S. v. Associated Press, (13)).

 

            Even if that last view seems too extreme, it is at least true that the process of "free discussion" is more likely to serve as "a better ally of truth than of falsehood" (see article, "Freedom of Expression," in Harvard Law Review, Vol. 65, pp. 1, 2; and this approach is of importance and of great value not only for the purpose of investigating questions arising in the political sphere, to which the subject dealt with in both of the articles above mentioned belongs, but also of the problems calling for solution in every other sphere of life in which there exists a need for a free choice between different and opposing views.

           

            Finally, we have hitherto considered the social interest which the principle of the freedom of expression is designed to protect, when we come to search for the truth. Whereas the importance of the principle also lies in the security that it gives to the most thoroughly private interest, namely, the interest of every man, as such, in giving expression to his personal characteristics and capabilities; to nurture and develop his ego to the fullest extent possible; to express his opinion on every subject that he regards as vital to him; in short, to state his mind, in order that life may appear to him to be worthwhile (see Barker, ibid., pp. 14-19; also, Laski, Grammar of Politics, pp. 102, 143, 144). In fact viewed from the object of maintaining this special interest, the right to freedom of expression serves not only as a means and instrument, but also as an aim in itself, seeing that the internal need that everyone feels to give open expression to his thoughts is one of the fundamental characteristics of man. Furthermore, although we have attached the epithet "private" to the latter interest, in point of fact, the state too has an interest in preserving it, since as Justice Brandeis once observed, in the case of Whitney v. California (14), "the final end, inter alia, of the state was to make men free to develop their faculties." Accordingly, even if someone makes a remark of no direct value for society or the state, the specific observation may be important from the point of view of the aim of ensuring independent expression.

           

B. If we have dealt at some length on the values that are the object of the right to freedom of expression, we have done so only in order to emphasize the decisive importance of that superior right which, together with the similar right to freedom of conscience, constitutes the pre-requisite to the realisation of almost all the other freedoms. "Give me the liberty", wrote the poet Milton, in 1644, in his famous pamphlet in favour of freedom of expression, "to know, to utter, and to argue freely according to conscience, above all liberties."

 

            Nearly two centuries later, the philosopher, J. S. Mill, also exclaimed: "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he if he had the power. would be justified in silencing man kind". ("On Liberty" Chapter 2). In our age, Scrutton L. J. held : "You really believe in freedom of speech, if you are willing to allow it to men whose opinions seem to you wrong and even dangerous" (Ex parte O'Brien, (4)). Therefore, whatever may be the difference in the value of different statements people make, the supreme value contained in freedom of expression remains permanent and unalterable.

 

C. Nevertheless, the right to freedom of expression does not mean that a person is entitled to proclaim, by word of mouth or in writing, in the ears and eyes of others, whatever he feels like saying. There is a difference between freedom and licence. In Podamski v. Attorney-General (1), we explained that, side by side with the rights to freedom (and that, in effect, is their legal significance), there are restrictions imposed by the law, and we demonstrated this idea as follows: "Everyone has the right to freedom of speech and freedom of expression, but the use of that right is subject to the restriction of the law" (ibid., p. 355); and in Gorali v. Attorney-General (2), we stated: "The object of the local criminal law in making the uttering of slander and the publishing of libel offences is to restrict that fundamental right whenever a person abuses it" (p. 1160). That is to say, that just as the right to freedom of action in other fields does not extend to the use of a man's profession, business or property in a manner injurious to others, so also the right to freedom of speech and the press does not entail the abuse of the power of the tongue or the pen. "The liberty of the press is dear to England", Lord Kenyon once said, in R. v. Cuthell (5), "The licentiousness of the press is odious to England". That is to say, that certain interests also require protection and for the sake of these it is essential to place clear limits on the right to freedom of expression. One interest of this kind was previously hinted at: the need for protecting the good name of the citizen (Criminal Code Ordinance, 1936, sections 201 and 202). Other kinds of interests requiring the raising of a barrier against the effect of statements by word of mouth and written publications are: the securing of a fair trial and the doing of justice to parties before the courts (ibid., sections 126 and 127), the prevention of outrage to religious feelings (ibid., section 149) and the prohibition of obscene publications which offend against moral values (ibid., section 179). We do not intend to exhaust the list of those interests, and we shall mention only the most important of them, namely, the interest included under the heading, "state security". Here we are concerned indeed with a composite and broad concept, but generally speaking, it may be said that it refers to all that is involved in avoiding the danger of invasion by the enemy from without; in suppressing any attempt at the forcible overthrow of the existing regime by hostile factors from within; in maintaining public order and securing the public peace. It is quite obvious that the object of reinforcing state security, too, requires some limit to the freedom of expression on certain terms, for were that not so, a situation might be created in which the state would be unable to achieve its aim or to conduct its affairs in a proper manner; everyone would be deprived of his freedom, including the freedom of speech and the press, and instead of freedom of liberty, anarchy and chaos would reign in the state.

 

D. The upshot of all this is that the right to freedom of expression is not an absolute and unlimited right, but a relative right, subject to restriction and control in the light of the object of maintaining important interests of the state and society, which are regarded, in certain conditions, as taking precedence over those secured by the principle of freedom of expression. In order to set limits on the use of the right to freedom of speech and the press, we weigh various competing interests in the balance and, after reflection, select those which, in the circumstances, predominate. We observed such a process in Gorali v. Attorney-General (2). We stressed there, that notwithstanding that the law imposes a prohibition on the publishing of statements of a defamatory nature against another person, it also recognises that "in certain circumstances and in certain conditions, the general good requires - in order that the fundamental right (of freedom of expression) ...shall not become an empty phrase - that a person shall not be punished for uttering statements containing abuse, since the injury caused to the public from excessive restriction of the freedom of speech and the freedom of writing is graver in the eyes of the law than the causing of any private damage." In fact, the tests that the law lays down for preferring the social interest, one of the foundations of which is the principle of freedom of expression, to the private damage caused on account of the uttering of words of abuse about another are, relatively speaking, clear and defined; for those tests are the several defences set out in sections 205 and 207 of the Criminal Code Ordinance, 19361). But in speaking of the "balancing" of the interests involved in maintaining state security on the one hand, and preserving the principle of freedom of expression on the other, this process of weighing up competing interests becomes more complicated.

           

            The complication arises in the main from the phenomenon that, here, there exist two competing kinds of interest, each one of which possesses a politico-social importance of the first order. While the vital importance of the aim of maintaining public security is self-apparent, it has also been demonstrated that the high value of the principle of ensuring free discussion and the investigation of truth constitutes a function of politico-social progress in every state which calls itself a democracy. It is true that today all are agreed that, in moments of supreme urgency - when, for example, the state is at war or is undergoing a grave national crisis - greater weight (according to the particular circumstances of each case) will be given to state security. Scrutton L. J. once more gave extreme but apt expression to this idea, when he stated, in the case of Ronnfeldt v. Phillips (6), that "A war could not be carried on according to the principles of Magna Carta." Justices Holmes and Brandeis, too, at the time when they were labouring to establish the standard principles underlying the rule of freedom of expression in the case-law of the United States, agreed that:

 

"When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right" (from the observations of Justice Holmes, in the case of Schenck v. U.S., (15)); "Only an emergency can justify repression (of the freedom of expression). Such must be the rule if authority is to be reconciled with freedom." (from the observations of Justice Brandeis, in the case of Whitney (14).)

 

            Indeed, the concern for preserving the security of the state in time of emergency is so liable to becloud all other considerations, that the authorities will be inclined, by dint of that concern, to prohibit or punish the making of statements or their written publication even at a time when they constitute no danger to the peace of the state or the nation. "Experience... must have taught us all", said Lord Sumner, in the De Keyser Case, (7), "that many things are done in the name of the Executive in such times purporting to be for the common good, which Englishmen have been too patriotic to control." The author of the article on freedom of expression in the Encyclopaedia of Social Science (Volume 6-7, p. 455) touched on this question in a more specific manner, when he stated:

           

            "The problem lies in framing these limits as ultimate safeguards (for the freedom of expression) because of the tendency of legislators and judges, especially in times of stress, to regard ideas of which they disapprove as dangerous to the public welfare."

           

            It was not without reason, therefore, that Justice Brandeis also warned, in the case of Schaefer v. U.S., (16), of the necessity for judging "in calmness" the question of the danger comprised in the publications.

           

            Finally, the same concern for preserving the security of the state is liable to have an injurious effect on the right to freedom of expression equally by reason of the mistaken approach that it protects only the individual interest of the citizen, wherefore that interest ought, as it were, to be disregarded whenever it comes into conflict with the social interest embodied in the security of the state. In this way, the authorities are liable unwittingly to overlook the great social value which the principle of freedom of expression adds to the efficacy of the democratic process, and they are liable to do so where the expected damage that the publication is likely to cause to the state is not so great as to justify doing away with the right. In his important book, Freedom of Speech in the U.S.A., Professor Chafee severely criticises the Federal Courts in the United States for being led away into such error when interpreting the Espionage Act during the First World War (loc. cit., 1942 edition, p. 34). Even such an experienced expert as Sir William Haley, the director of the British Broadcasting Corporation, expostulated in 1950 against the danger involved in not paying proper attention to the value of the principle I have mentioned. On the assumption that "We have to face up to the fact that there are powerful forces in the world today misusing the privileges of liberty in order to destroy it", he warned that, nevertheless, "it would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion and so brought us down to their own level." (These observations are quoted in Justice Frankfurter's judgment in the case of Dennis v. U.S. (17).)

           

E. So far, we have dealt with the problem in a general way, and have established that the solution must come by weighing the interests of state security on the one hand against freedom of expression on the other; that the great social value of the principle which protects the latter interests is worthy of particular attention; and that preferring that former interest is justifiable only when the situation definitely calls for it. It is clear that this approach by itself does not amount to a mathematical formula which can be accurately adapted to every single occasion. The legislator does, in point of fact, sometimes do the work of weighing and balancing by himself, that is, he himself determines in advance the kind of material that is not to be published, or the terms on which its publication is to prohibited by considerations based on state security. This he did, for example, in the Official Secrets Ordinance. But sometimes the legislator leaves the discretion in this field in the hands of others, such as the Executive. In the last group of cases, the question must inevitably arise (particularly because that approach does embody a concise, narrow formula), as to what is the rational principle that ought to guide the Executive when engaged in the aforementioned process, in order to settle the question in favour of one or other of the two interests. If we consider this latest question in the light of section 19(2)(a) of the Press Ordinance, as we propose now to do, and if we bear in mind the interest of "public peace" instead of "state security", then it would be right to state the question in this form: what is the test which the Minister of the Interior should apply when he comes to decide whether the material that has been published is "likely to endanger the public peace" to the degree which justifies the suspension for a certain time of the newspaper in which it has been published ? In fact, the moment we are successful in finding a definition suitable to the expression, "endangers the public peace", the question will become confined to the interpretation we ought to give to the term "likely".

 

            So what do we mean by "endangers the public peace"? Once more we are dealing with a broad and complex notion. In the case of Cantwell v. Connecticut (18). Justice Roberts (of the Supreme Court of the United States), considered the offence of "breach of the peace", as understood in the common law, and after noting that it embodies "a concept of the most general and undefined nature", added: "The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts and words likely to produce violence in others." It may well be that, in fact, the offence of "breach of the peace", as so understood, was what was in the mind of the legislator when he limited the use of the power mentioned in section 19(2) in the way he did. We do not propose to lay down any hard and fast rules in this respect, nor shall we try to mark the outer limits of the concept, "endangers the public peace", but for the purpose of the present discussion, it will be sufficient to hold that any publication leading to the use of violence by others, to the overthrow by force of the government in power or of the existing regime, to the breach of the law, to the causing of riots or fighting in public or to the disturbance of order, endangers the public peace.

           

            But section 19(2)(a) says, "likely to endanger". What is the purport of the term "likely". The answer to that question depends on the choice of one of two possible approaches. According to one approach it is sufficient, in order to satisfy the condition stated in the section in question that the publication reveals only a tendency - even a slight or remote tendency - in the direction of one of the consequences that we included in the notion, "endangers the public peace"; while according to the other approach, the Minister of Interior must be convinced beforehand that there has been created, having regard to the circumstances in which it takes place, a link between the publication and the possibility of one of the said consequences occurring, which must lead to the inference that the occurrence of that consequence is probable. We think that the second approach represents the intention of the legislator in section 19(2)(a).

 

            First, there is no doubt that the other approach - the one which takes the view that the suspension of a newspaper is justifiable, simply because it may disclose a tendency to endanger the public peace - originates in the way of thinking that created the offence of incitement to rebellion in the old common law. It will be recalled that, according to that definition, all criticism directed against the members of the Government concerning their conduct in that capacity, against the laws themselves and against the institutions established under those laws, was forbidden. The directions given by an English judge to the jury in 1811 in the case of John Drakard's Trial (8), who was convicted of the offence of incitement to rebellion only because he printed an article in which the writer roundly criticised the practice of flogging soldiers, in use at that time in the British Army for disciplinary purposes, testify to the complete identity between the mode of thought in which that definition is grounded and the view of "a mere tendency". In those directions Baron Wood stated thus :

           

"... You will consider whether (the article) contains a fair discussion - whether it has not a manifest tendency to create disaffection in the country and prevent men enlisting into the army - whether it does not tend to induce the soldier to desert from the service of his country. And what considerations can be more awful than these...?

 

"...The House of Parliament is the proper place for the discussion of subjects of this nature ...It is said that we have a right to discuss the acts of our legislature. That would be a large permission indeed. Is there, gentlemen, to be a power in the people to counteract the acts of the parliament, and is the libeller to come and make the people dissatisfied with the government under which he lives? This is not to be permitted to any man - it is unconstitutional and seditious."

 

            In the trial that took place against the writer of that article. (Leigh Hunt's Trial (9) - who, as it so happens, was acquitted Lord Ellenborough directed the jury on the law in a similar vein:

           

            "Can you conceive that the exhibition of the words "One thousand Lashes", with strokes underneath to attract attention, could be for any other purpose than to excite disaffection? Could it have any tendency than that of preventing men from entering the army?"

 

(Those two passages are taken from the above mentioned book by Chafee (pp. 25 and 26), who quoted them from the collection of judgments known as Howell's State Trials, Vol. 31, pp. 367, 495).

 

            In the Scottish case of R. v. Muir (10), in which in the year 1793 a man by the name of Muir was prosecuted, once again for incitement to rebellion, for advocating, in pamphlets and articles that he had disseminated, parliamentary reform which was designed to abolish the system of elections through "rotten boroughs" that was practised at that time in Britain, the following direction was given to the jury.

           

            "As Mr. Muir has brought many witnesses to prove his general good behaviour, and his recommending peaceable measures and petitions to parliament, it is your business to judge how far this should operate in his favour, in opposition to the evidence on the other side. Mr. Muir might have known that no attention could be paid to such a rabble. What right had they to representation?.. The tendency of such conduct was certainly to promote a spirit of revolt, and if what was demanded should be refused to take it by force."

 

(Quoted from Howell's State Trials, Vol. 23, p. 229, by Professor Sutherland, in his article published in the Cornell Law Quarterly, Vol. 34, pp. 303, 314).

 

            It is easy to discern that this approach of "a bad tendency" means - as Stephen once commented in his analysis of the offence of incitement to rebellion in its original form - a refusal of the right of serious political discussion ("History of the Criminal Law in England", Volume II, p. 359). "And the most powerful weapon in their hands (i.e., of those who oppose freedom of the press)", Professor Chafee once stressed, "is this doctrine of indirect causation, under which words can be punished for a supposed bad tendency long before there is any probability that they will break out into unlawful acts." (See the book above mentioned, p. 24).

           

            To sum up: The approach of "a bad tendency" is perhaps suitable to a political system employed in a state based on an autocratic or totalitarian regime, but it obstructs, or at least renders inefficient, the use of that process which constitutes the very essence of any democratic regime, namely, the process of investigating the truth.

           

            The system of laws under which the political institutions in Israel have been established and function are witness to the first that this is indeed a state founded on democracy. Moreover, the matters set forth in the Declaration of Independence, especially as regards the basing of the State "on the foundations of freedom" and the securing of freedom of conscience, mean that Israel is a freedom-loving State. It is true that the Declaration "does not consist of any constitutional law laying down in first any rule regarding the maintaining or repeal of any ordinances or laws" (Zeev. v. Gubernik (3)), but insofar as it "expresses the vision of the people and its faith" (ibid.), we are bound to pay attention to the matters set forth in it when we come to interpret and give meaning to the laws of the State, including the provisions of a law made in the time of the Mandate and adopted by the State after its establishment, through the channel of section 11 of the Law and Administration Ordinance, 1948;1 for it is a well-known axiom that the law of a people must be studied in the light of its national way of life. Thus, here we have a first sign indicating that we must interpret the term "likely", when we read it together with the other matters stated in section 19(2)(a), in the sense of "probability" rather than in the spirit of the view which favours the doctrine of the "bad tendency" and "indirect causation".

           

            As for the second sign, which goes hand-in-hand with the first: the procedural means available for suppressing or restricting the freedom of the press are of two kinds. One measure is to punish the objectionable publication after it has taken place. The other measure is preventive, that is, by way of taking steps directed to obstructing the publication of the improper material in advance or to prevent the continued appearance of the newspaper in which that material has been published. In the last instance, too, which is the present case, we are concerned with a preventive measure, which bears no criminal character in the regularly understood sense, seeing that its primary and immediate purpose is to secure the non-publication of the newspaper, because it is likely to contain similar improper: material in the future.

           

            Indeed, it has long been recognised that that same "preventive" measure - which is, after all is said and done, nothing more than censorship, pure and simple - is the most powerful of the two measures that have been mentioned. "The censor", says Chafee, "is the most dangerous of all the enemies of the liberty of the press, and ought not to exist in this country unless made necessary by extraordinary perils." The history of many peoples, and of the people of Israel first and foremost, is full of examples without number, of men who have dared and ventured, without being deterred by the fear of punishment, to publish what their conscience dictated, notwithstanding its prohibition on the part of the ruling authorities. However, it is clear that such display of courage has never been, nor is it today, any sufficient guarantee against the effective stay, by preventive measures, of disseminating views or thoughts that are entirely novel. What endows the use of a measure of the preventive kind with its powerful and drastic character is the general acknowledgement, "that no official yet born on this earth is wise enough or generous enough to separate good ideas from bad ideas, good beliefs from bad beliefs" (ibid., p. 61). Accordingly, even during the period in which the rule of incitement to rebellion in its original form was still in force in England, the common law recognised the principle that the Executive ought to be slow in making use of measures preventing the publication of the forbidden material in advance, and that its sole alternative was the bringing of the offender to trial after the act for having disseminated the inflammatory remarks in public. Blackstone, at the end of the 18th century, put the rule in this way:

 

            "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity." (Commentaries, Volume 4, pp. 151, 152.)

 

            Only in two periods, in which England was engaged in wars of world-wide range, has the English legislator departed - on security grounds alone - from that important principle, and even then the authorities made use of their "suspensive" power in very rare instances (see Chafee, pp. 105-106, and Ridge's Constitutional Law, p. 386).

           

            The application of this limitation has been extended in the United States, in consequence of the guarantee of freedom of the press in the Federal Constitution, to the power to make laws, permitting staying or preventive measures. So, for example, the American Supreme Court, in the case of Near v. Minnesota (19), invalidated an Act enabling the authorities to obtain an injunction from the court, suspending a newspaper in which material insulting or defamatory of public officials in connection with the performance of their official duties has appeared. "The securing of the freedom of the press", said Chief Justice Hughes, "requires that it should be exempt not only from previous restraint by the Executive ...but from legislative restraint also" (loc. cit., p. 630), the reason being that putting such a power into the hands of the legislature means that "the Legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends and restrain publication accordingly", and then "it would be but a step to a complete system of censorship" (ibid., p. 633). Finally, the American judge, too, recognised the non-application of that limitation in extraordinary instances, such as in time of War, when there exists a need for preventing the obstruction of recruiting for military service, the publication of the sailing dates of transports or the disclosure of the number and location of troops; and also, at all times, when we must defend ourselves against the publication of matters inciting to acts of violence or the overthrow by force of the lawful regime (ibid., p. 631).

 

            We have dealt at some length with this Anglo-American understanding of the use of preventive measures, because it vividly shows that, from the point of view of protecting the interest of freedom of expression, it is indeed the severest and most powerful means there is. If, for all that, the Israel legislator saw fit to leave the power defined in section 19(2)(a) unaltered, it means that it did so because of the state of emergency to which the State has been subjected ever since its establishment. But, on the other hand, and especially having regard to the drastic character of that power, one should not attribute to the Israel legislator an intention to authorise the body in charge of exercising that power, to order the suspension of a newspaper only because the matters published seem to it to disclose a mere tendency to endanger the public peace, although in fact there is no direct incitement or even any advocating at all of a line of conduct which in the circumstances seriously increases the likelihood of such a result. To attribute such intention is quite out of the question since, on the one hand, Israel is a State which, as we have seen, is based on the fundamentals of democracy and freedom; and on the other hand, the establishing of an abstract and undefined standard of "bad tendency" alone must of necessity open the way to the introduction of the private opinions of the person in whose hands that power is invested, however exalted that person's aims may be, in estimating the danger allegedly anticipated to the public peace in consequence of the publication in question. What Jefferson wrote 170 years ago is no less true today, namely that:

           

            "To suffer the civil Magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy ...because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own." (Chafee, ibid., p. 29.)

           

            It follows from what has been said, that there is in fact no choice but to interpret the term "likely" according to the notion of "probability", as distinct from a "bare tendency".

           

            The third support for the interpretation which we favour, follows from the dictionary definition of the original term, "likely". The Shorter Oxford Dictionary (Third Edition, Volume II, p. 1143), explains the fact term as follows:

           

"seeming as if it would happen ...probable ...giving promise of success ...come near to do or be..."

           

            The expression "probable" is explained in the same dictionary (ibid., Volume II, p. 1689) as:

 

            "...that may reasonably be expected to happen..."

           

            Are not those definitions to be regarded as clear evidence of the legislator's intention that the standard by which the Minister of Interior must exercise his discretion regarding the existence of the condition stated in section 19(2)(a) is once more the standard of "probability" : that be is bound to be satisfied, before ordering the suspension of any newspaper, that, having regard to the circumstances in which it is published, the publication of the material in question will logically create a likelihood of the occurrence of one of the consequences comprised in the notion, "danger to the public peace", in its aforementioned meaning. In other words: is it not to be understood from those definitions, that it is not absolute certainty with regard to the occurrence of the result that the legislator desired to prevent that constitutes the condition for applying the said power, but that, on the other hand, the disclosure of a bare tendency in that direction in the matter published is, in its turn, insufficient for that purpose; that, in fact, the standard in question is a kind of "golden mean" between the other two possibilities, namely, that it is probable that that is what will happen as a result of the improper publication?

           

F. It is desirable that we should further clarify the nature of the test of "probability" and the manner in which it should be employed.

           

            (1) When we established that it is better to prefer this test to the test of the "bad tendency", we were not referring to any slender or hairsplitting distinction, but to a clear, rational principle, namely, the principle that, on the one hand, does not disown the objective of preventing danger to the public peace, at which the legislator is aiming, and on the other hand, also secures that proper attention is paid to the supreme value of the public interest which is protected by the freedom of the press. As we have already hinted, everyone agrees that even the men in power, being only flesh and blood, are not free from error; nevertheless, they are inevitably entitled to assume that their views are right, when they come to perform any actions within the scope of the exercise of their official duties. Such an approach on their part would only be logical and practical. But that does not mean that it is right or proper that the people in power should make the same assumption only in order to suppress the opposing opinion of others. "There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation" (quoted from J. S. Mill in his book above referred to, Chapter 2; see also Chafee, ibid., p. 138).

 

            According to a similar way of thinking, it ought to be agreed that the aforesaid assumption (that their opinions are correct) may very well serve to supply the men in power with a justification for suppressing the acts - even where they are only acts of publication that are in question - of those seeking to enforce their views on the state by way of incitement to a change of policy by physical force, instead of by vote in the legislature and in calm elections, or, as it is usually put, by "breaking heads instead of counting them". As the former President of Harvard University wrote :- "The power to carry out its will under such conditions must to some extent be inherent in every government" (see Public Opinion and Public Government, by A. L. Lowell, p. 11). Whereas the sine qua non for applying the drastic power of suppressing the views of others, in such circumstances, is once again the conviction of the men in power that the matters published disclose something more than the expression of an opposing opinion and even something more than creating a tendency that might "endanger the public peace" : in short, that the matters embody not only the idea that is likely to create, in consequence of its advocacy, a remote possibility that it might indirectly cause one of the unfortunate results referred to above. It is true that from a narrow point of view, "every idea is an incitement", since "it offers itself for belief and if believed it is acted on unless some other belief outweighs it" (Justice Holmes, in the case of Gitlow v. N.Y. (20)): Whereas, only when the publication has left the framework of the mere explanation of an idea and takes on the form of advocacy, which, having regard to the circumstances, creates at least a proximate possibility of the commission of acts endangering the public peace, will there be room for the intervention of the authorities in order to suppress the publication or to prevent its recurrence in the future.

           

            If no exact definition is made of such a boundary between publications that merely consist of a disclosure of certain thoughts and publications that, in the circumstances surrounding them, may be regarded as of inflammatory content in its aforesaid meaning; if we are not continually on guard against the blurring of that dividing line - the vital value of the interest involved in the freedom of expression is likely to be completely eliminated. Indeed, that concrete and rational principle of "probability" as distinct from the abstract and undefined notion of "bad tendency" is calculated to secure to a great extent (if it be properly understood and resorted to) that, on the one hand, the suppression of the views of others will not occur only by reason of their being opposed to those held by the people in authority, and on the other hand, that the objective of preventing danger to public peace, at which the legislator was aiming, will be achieved.

 

            (2) It must indeed be admitted that even the test of "probability" does not constitute a precise formula that can be easily or certainly adapted to every single case. We mean by that, that when he makes his decision regarding the exercise of the power given him by section 19(2)(a), the Minister of Interior is not expected to forecast With absolute certainty that one of the consequences contained in the definition of "endangering the public peace" is bound to occur by reason of the act of publication in question, if he does nothing to prevent it. The most that is demanded of him is only an estimation that that is how things are likely to turn out, that is to say, an estimation that a proximate (and not necessarily a certain) result will follow if he does not make prompt use of his said powers. Now, the estimation means, as we have already suggested more than once in the course of our remarks, an estimation made according to the circumstances surrounding the act of publication. Just as the establishing of the real character of each act depends on the circumstances in which it is done, so the estimation of the nature of the matters published depends on the circumstances accompanying the publication. The standard by which the Minister of Interior must guide himself is, therefore, the standard of "the probable", according to what seems reasonable in the circumstances of the case That is, of course, in each case a question of degree. For example, if, at this time, a newspaper were to publish an article severely criticising the conduct of a certain battle in the War of Independence, it would not thereby create a ground justifying its suspension (assuming that it does not reveal any defence secrets); whereas, if it were to publish an article casting aspersions on the ability of a certain commanding officer, at a moment when the men under his command were about to go into battle, there would most certainly be room for making use of the power vested in the Minister.

           

            Sometimes the matters that are published are, from the point of view of the possibility of endangering the public peace, "colourless", or "innocent", but what lends them their dangerous character are the circumstances that existed at the time of their publication, as in the previous example. By way of further example, there is nothing objectionable in the use of the word "fire" in an article published in a newspaper in the course of describing a case in which a certain house had, on some previous day, gone up in flames. But even those who favour the most pedantic safeguarding of freedom of expression would regard it as unthinkable to extend it to a person who, knowing that there is no truth in it, shouts "fire" in a theatre full to the gallery, and in so doing causes a panic among the spectators (see the case of Schenck v. U.S. (15), p. 244). On the other hand, it may happen that the inflammatory content of the words published in itself creates the probability of danger to the public peace - that is, without any particular or extra reference to the circumstances in which the publication took place, as in the case in which an article that appeared in a newspaper advocated the breach of a law imposing a certain tax by those on whom the tax fell, saying that they should resist its collection by force.

 

            But even in the last example, the "circumstances" do also have some influence - for instance, that that newspaper has a wide circulation. So we perceive that the test to be applied always consists in some pre-estimation, according to the degree of logic, as to whether, as the result of the inter-action of publication and circumstances, a probability is created that the public peace will be adversely affected.

           

            (3) It is important to stress that the circumstances which the Minister of Interior is entitled to take into account are liable to be varied and of different nuances. For instance, he must consider not only the immediate external facts, that is, that a direct connection has been created between the circumstances and the publication, but also the general background, such as the state of emergency existing in the country at the time of publication or the tension prevailing in international relations at the moment. It is indeed obvious that, since life is continually in a state of development, there is no point in our trying to exhaust or classify the circumstances referred to or in our making hard-and-fast rules concerning the possible effect of one or other of these circumstances. As stated, that effect is liable to alter from case to case, and what is always of importance is the estimation of the combined effect of the circumstances in each individual instance. Nevertheless, it is worthwhile our adding - for the sake of guidance only, and without setting up any strict rules - the following observations:

           

            First, generally speaking, there will be no need to consider the bad intention of those responsible for the publication in question. For you have your choice: either the contents of the matters published are true, in which case, it makes no difference what the author or publisher had in mind; or they are untrue, in which case only the possible effect of the published matters themselves on the public peace is of importance, and not the disclosed intention of those who have caused their dissemination. True, this will not apply in every case, since in certain conditions, the intention formed in the mind of the author or publisher may be of great assistance in estimating the danger that will probably result from the publication. For example, where the matters published may be understood in different ways, the discovery of that intention is likely to throw light on the real meaning to be given them, on their dangerous character and on the objectionable purport lying behind them.

 

            Moreover, in certain circumstances and in certain conditions, it would not be out of place to take into consideration the strong tone, the offensive language and the emotional tinge in which the contents of the article or the piece of information published have been clothed. But we should not exaggerate this, since without being able to connect the form of the writing with other facts which might endanger the public peace, it would not be right to regard the form of language as a factor likely to affect the public peace; for if you hold otherwise, you are in fact disowning the principle which safeguards the freedom of expression and which recognises that discussion in the sphere of politics, at all events, cannot be restricted to polite criticism. As Chafee stated: "The greater the grievance the more likely men are to get excited about it, and the more urgent the need of hearing what they have to say" (loc. cit., p. 43).

            Finally, it will not, generally speaking, be right for the Minister of Interior to take into account, among his considerations, the personality or character of those responsible for the improper publications. The observations of Lord Chatham when supporting the struggle of John Wilkes (11), a person of the most dubious past, for the freedom of the press in England, are most enlightening on this point: "In his person though the worst of men, I contend for the safety and security of the best". (Chafee, p. 242, et seq.)

           

            (4) We must, in this connection, make one more point clear. The test of "probability" which we favour does not mean that the Minister of Interior must be satisfied in every case that the danger to the public peace is likely to occur shortly after the matters are published in the newspaper in question. A finding of "probability" does not necessarily mean a finding of proximity of the danger, in the sense of proximity in time. Indeed, the consideration that, as a consequence of the publication, an imminent danger has been created to the public peace strengthens the estimation that that danger is probable, just as the consideration that the publication is likely to show signs of its effect on the public peace only after a certain lapse of time reduces the likelihood of their being any such danger at all. But if the Minister of Interior becomes aware, in the light of circumstances, that the publication makes it possible, amounting almost to a certainty, that serious harm will be caused to the public peace, then there is nothing to prevent him from exercising the power given him by section 19(2)(a), even where he estimates that it is not a case where harm will be caused forthwith.

 

            It should be noted that in the United States, when Justices Holmes and Brandeis were defining the guarantee to freedom of speech and the press that is to be found in the American Constitution, they held as an essential condition to the restriction of that freedom, that the publication in question must be liable to cause serious and immediate harm to the interests that the legislator was seeking to safeguard. "The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree". (See Schenck v. U.S. (15), at p. 249; Abrams v. U.S. (12), at p. 22; Whitney v. California (14), at p. 649; see also the judgments collected on this point in the addendum to the judgment of Justice Frankfurter, in the case of Dennis v. U.S. (17), at p. 891; cf. the new approach of the majority opinion in the last-mentioned case). Now, it is very evident, in view of the approach we have indicated above, that we cannot go to the extreme of demanding that the Minister of the Interior be satisfied, before ordering the paper to be suspended, that the danger to the public peace created in consequence of the publication is also proximate in time. The dictionary definition, at the very least, of the term "likely" in section 19(2)(a), the meaning of which is, as stated, the presence of a probability that the effect on the public peace must take place at some time in the future, and not necessarily the immediate future, prevents us from so doing. However, we take the view that, in weighing the interests involved in securing the public peace on the one hand, and the safeguarding of the freedom of the press on the other, the Minister of the Interior would do well to pay attention to the general directions that the aforementioned judges employed in shaping the rule of law and of some of which we have already made mention in an earlier part of our judgment. Those directions - which we quote here not, once again, as hard-and-fast rules, but as guiding principles only - are:

           

            (a) As a general rule, there is a good chance that truth, in the end, will prevail; so that, if only there is enough time to spare, it is better to act through discussion, education and counter-explanation, in order to cancel out the effect of the false information published in the newspaper in question or in the article for which space was found. "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence" (per Justice Brandeis, in the case of Whitney (14), at p. 649). Accordingly, it would be advisable to reflect, for example, whether instead of suspending the newspaper for publishing the incorrect information, it would not be preferable to oblige the editor, in accordance with section 17 of the Press Ordinance, to publish a denial.

 

            (b) It often happens that the very act of oppression - the actual suspension of the newspaper in which the matters objected to have been published - endows them with an exaggerated value in the eyes of the public. Where "the enemies of liberty are met with a denial of liberty, many men of goodwill will come to suspect that there is something in the proscribed doctrine after all. Erroneous doctrines thrive on being expunged. They die if exposed". From the observations of Haley, quoted in the case of Dennis v. U.S. (17), sup., at p. 889; see also the observations of Justice Holmes in Abrams v. U.S. (12), at p. 22).

           

            (c) Finally, in cases in which there exists no danger of causing immediate, or even probable, harm to the public peace, it would be best to weigh very carefully the gravity of the danger which the Minister of Interior sees in the offing as a result of the publication in question. The current view is that in any case any act of suppression of the appearance of a newspaper of itself occasions harm to the public interest, that is, to the important interest connected with the freedom of expression. The point is that every such act of suppression of necessity fills, not only the owner of the newspaper that has been suspended and its editor, but others as well, with fear and apprehension; that that fear and apprehension in turn contribute to the imposition of a self-censorship on the part of the latter; and in that way, those very arguments that ought in particular to see the light of day for the purpose of investigating the truth and advancing the democratic process, are silenced (see Chafee, p. 561; Harvard Law Review, p. 6). On the other hand, since we are concerned only with the estimation of a potential danger, that is to say, one which is probable, but as regards which there is no assurance that it will necessarily occur - and at all events, there is no fear of its occuring in the near future - it is possible (even assuming that the possibility is a distant one) that the public peace will not suffer on account of the objectionable publication. In which case, it is important to consider whether the gravity of the danger that the Minister of Interior foresees as the result of the publication of the matters objected to, is indeed so great as to be comparable to the public harm to the other public interest, that is, the harm to the interest of freedom of expression, which the suspension of the newspaper is in any event likely to cause.

 

G. The rule to be applied in the present case may be, therefore, summed up as follows : -

 

            The use of the power stated in the said section 19(2)(a) calls, on the part of the Minister of Interior, for the Weighing of the interests involved in the public peace on the one hand, and in the freedom of the press on the other, and preferring the former interest only after full weight has been given to the public need for freedom of expression. The guiding principle ought always to be: is it probable that as a consequence of the publication, a danger to the public peace has been disclosed; the bare tendency in that direction in the matter published will not suffice to fulfil that requirement. Moreover, the Minister of Interior is bound to estimate the effect of the matter published on the public peace only according to the standard of what is reasonable in the light of the surrounding circumstances: and in that estimation, the length of time likely to pass between the publication and the consequential event which constitutes the harm to the public peace is liable to be an important factor, though not necessarily a decisive one. Finally, even if the Minister is satisfied that the danger caused by the publication is "probable", he ought carefully to consider whether it is so grave as to justify the use of the drastic power of suspending the newspaper or whether effective action is not available for the purpose of canceling out the undesirable effect consequent upon the publication. by less stringent means, such as discussion, denial and counter-explanation.

 

            We would like to add to our summary of the rule a word about the phrase, "in the opinion of the Minister of Interior", in paragraph (a) of section 19(2). We must hold that the estimation of the effect of matters published on the public peace, in the light of the circumstances, is always within the sole jurisdiction of the Minister of Interior, so that the High Court of Justice will not interfere with the latter's discretion unless, in making that estimation, he has departed from the test of "probability", having regard to the meaning of the notion "endangering the public peace" ; unless he has paid no consideration or, at all events has paid mere cursory consideration - to the important interest connected with the freedom of the press; or unless he has erred in the exercise of his discretion in some other manner, having been misled by considerations that are devoid of any relevance, or are untenable or absurd.

           

            In the light of that rule, our view is that each of the two orders issued by the respondent for the suspension of the two newspapers in question for a period of ten days and fifteen days respectively, are of somewhat dubious validity.

            "Kol Ha'am" : In order to appreciate the considerations that weighed with the Minister of Interior when he estimated the effect of the article that was published in this newspaper on March 18, 1953, in the way he did, we shall quote here part of the evidence given by Mr. Moyal in cross-examination, which we regard as reflecting the respondent's approach also. Now, he testified as follows:-

 

"...Had the first paragraph of the article in question appeared by itself, I would not have had the paper closed - nor on account of the second paragraph. Regarding the third paragraph, I should have drawn the attention of the Minister of Interior and asked whether it endangers the public peace - he has to decide ...In the fourth paragraph, I observe a charge that the Government maintains a policy of obsequiousness towards the United States - it is impossible to divide the article up, sentence by sentence, and to look at each sentence by itself for a statement that amounts to (endangering) the public peace - when reading the article as a whole - it does constitute a certain endangering of the public peace - I passed the article to the Minister of Interior - he read it all and came to the conclusion that it endangers the public peace - the fifth and sixth paragraphs by themselves do not endanger the public peace - but if it stated that the Government of Israel was giving way to the dictates of a foreign government against the interests of Israel - endangering the public peace - in the seventh paragraph also there is no endangering of the public peace - what is written in the eighth paragraph is a conclusion from what is stated beforehand and a slogan - that paragraph testifies to an intention to struggle against the Government of Israel for speculating in the blood of Israel, and I expressed the view to the Minister of Interior that that amounts to a very strong foundation - on the strength of that paragraph and on the strength of the article as a whole, the Minister of Interior recognised that there exist elements justifying the use of section 19."

 

            If we recall that in the article in question, the author inferred from a certain pronouncement that the Israel Ambassador in Washington was alleged at the time to have made, that the Government of Israel had agreed to place 200,000 troops on the side of the United States in the event of war breaking out between her and the Soviet Union, and that he devoted the remainder of the article mainly to the criticism of this imaginary policy, it will be quite apparent that that estimation of the article made by the Minister - namely, that on account of its publication, sufficient foundation has been laid on which to exercise the power set out in section 19(2)(a) - is defective.

 

            Can the publicly declared description of that policy as self-humiliation before a foreign state and surrender of the interests of Israel to the latter's will (however much that description may be mistaken) be regarded as creating at least a proximate possibility of "danger to the public peace", within the meaning I have given to that phrase? Would the article have such an effect, even if we consider the state of emergency in which our country finds itself at the moment when no permanent peace treaty has been signed with our neighbours, the Arab States? Would it be right to interpret the matters published as incitement to the use of violent means in order to bring about a change in that supposed policy of the Government? Does there exist any sufficient foundation for inferring that they are advocating non-enlistment for service in the Israel Defence Forces within the framework of the Defence Service Law? It is quite obvious that we must give negative answers to each one of those questions.

           

            If, for all that, the respondent arrived at a different conclusion, there can be no doubt that the reason therefore - as can be seen most clearly from the evidence of Mr. Moyal - is that he made the mistake of approaching the matter from the point of view of the "bare tendency" in the contents of the article, instead of examining whether the achievement of one of the aforementioned results, in consequence of its publication, is within the bounds of probability. Let us take as an example the paragraph which was selected by the learned Attorney-General:

           

"If Abba Eban or anyone else wants to go and fight on the side of the American warmongers, let him go, but go alone. The masses want peace and national independence, and are not prepared to give up the Negev in return for joining the 'Middle East Command'."

 

            It is very obvious to us that anyone, unwilling to enter into a pointless discussion whether the matters stated in that paragraph evince a "tendency" towards weakening the will of the citizen to carry out the duty imposed by the Defence Service Law should war break out between the two foreign States, will unhesitatingly agree that their proper construction is that the writer is opposed, in a strong and emotional form, to the "policy" of the present Government as therein described, and no more.

           

            The same applies to the penultimate paragraph, on which Mr. Moyal laid particular stress in the evidence he gave before us, and the contents of which were quoted in the first part of our judgment. As the witness admitted, the statements in that paragraph constitute nothing more than a conclusion arising out of what the author had written in the previous paragraphs, namely, that the agreement to place a large number of troops at the disposal of the United States as aid in the war liable to break out in the future between her and the Soviet Union meant the sacrifice of Israel youth for the objectionable purpose, in return for the chance of obtaining money from the United States, and that, in order to obtain the reversal of that policy, it must be fought. Now, whatever our view may be as to the correctness of the conclusion drawn, expressing opposition to that imaginary policy and advocating a fight for its reversal, can in no wise be regarded as likely in the future to endanger the public peace in any shape or form.

 

            I admit that even in that paragraph the conclusion was expressed in pungent tones, and not only that, but was even accompanied by language (we are referring to the words, "speculating in the blood of Israel youth") bordering on what is truly defamatory. But, aside from the fact that there are provisions in the criminal code and in the law of civil wrongs for punishing or compensating for the publication of matter defamatory of or insulting to any persons, whether in their capacity as representatives of the public or as private individuals, the fact that the opinion expressed in that paragraph is clothed in strong, emotional and insulting language is not sufficient - without connecting that objectionable style to other circumstances endangering public peace - to invest the matters published with an influence so great as to create a proximate danger to the public peace, within the meaning defined in this judgment. Now, Mr. Moyal did not even so much as hint at any such special circumstances, either in the affidavit lodged in support of the respondent's reply, or in the evidence that he gave before us.

            To sum up: if we do not wish to put obstacles in the way of discussion and free investigation in the political sphere and in that way divest ourselves of all interest involved in the freedom of the press, and if we do not also desire utterly to depart from the test which requires that the negative effect of published matter on the public peace be regarded in the circumstances as at least probable, then we shall have no alternative but to decide that, in making the order for the suspension of the newspaper "Kol Ha'am", for a period of ten days, for having published the article referred to, the respondent gravely exceeded his jurisdiction.

 

            "Al-Ittihad": The same applies to the order made by the respondent for the suspension of the other newspaper for a period of fifteen days. In this connection, it ought to be noted that the article published on March 20, 1953, basically resembles the contents of the article that had appeared in "Kol Ha'am" two days before. It is true that the objection to what the author of the article (which was written in Arabic) regarded as the declared policy of the Government of Israel was this time drafted in a stronger, more emotional and even more insulting style than the one in which the article that served as the occasion for suspending the other newspaper was written, and it may therefore be that it was this fact that moved Mr. Moyal to hold, in the evidence that he gave before as in the second case, that "the whole article endangers the public peace" : that is to say, that effect flows not only from what is written in the penultimate paragraph, which was stressed in particular in the affidavit that Mr. Moyal lodged in this case, but from the article as a whole. We are, however, of the opinion, for the reasons given above, that this feature (of the style of the article in such a form) is not of itself calculated to create a proximate possibility that the matters published in "Al-Ittihad" will result in the citizen refusing to carry out his duty of enlistment imposed by the Defence Service Law, or in any of the other consequences contained in the notion "endangering the public peace".

 

            As for the matters in the penultimate paragraph - which Mr. Moyal, according to the evidence that he gave in the second case, regarded as "incitement against the Government of Israel, based on the falsehood that the Government of Israel is speculating in the blood of its sons", and "incitement of the masses to act against the State and its Government" - we are once more concerned with the expression of a conclusion by the author of the article, similar in spirit to that which was arrived at in the article published in "Kol Ha'am".

           

            That conclusion is, as will be recalled, that that "policy", which the author regarded as the declared policy of the Government of Israel, meant that the lives of Israel citizens were to be sacrificed for the objectionable purpose, in return for the receipt of money for the country from the United States, in that that "policy" is dragging them "not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine". To this, was added the "makeweight", that "those masses do not want that fate and will demonstrate their refusal."

           

            As was suggested, if we disallow, for one moment, the addition of the "makeweight", then we are once more obliged to hold - for reasons we gave when we denied the possibility of the publication of a similar conclusion in the Hebrew newspaper being likely to harm the public peace - that the parallel estimation regarding the "dangerous effect" made by the respondent in relation to the conclusion expressed in the Hebrew newspaper is, too, devoid of any logical foundation. Can the addition of the words, "and will demonstrate their refusal", alter the situation?

 

            The Attorney-General argues that, at all events, in the last words, and in the similar remarks with which the article concludes ("and will prove to Ben-Gurion and his henchmen that they will not allow them to speculate in the blood of their sons", etc.), there is apparent an obvious call to the use of violent means for the purpose of bringing about a change in what the author regards as the Government's policy, or at least, that the words in each of the two said paragraphs are like incitement to disobedience to the law by refusing to carry out the duty of enlistment for military service. On the other hand, counsel for the petitioner contended that the intention behind those remarks was that the citizens of the State express their disagreement with that "policy" in a lawful and quiet manner - for example, by voting in a certain direction in the general elections shortly to take place.

           

            We have no doubt, having regard to the pungent and emotional manner in which the article as a whole is composed, that the words at the end of each of the two paragraphs in question bear a double meaning; that is, they may be interpreted in each of the ways stated. For that reason, and seeing that the decision as to the possible effect of those remarks is first and foremost a matter for the discretion of the respondent, we feel ourselves bound by his recognition that the interpretation indicated by the Attorney-General is the one likely to be accepted by the readers of that article. However, our employing that approach does not necessarily mean that the fate of this case has been completely settled, since the question still remains whether, in the light of all the circumstances in existence at the time of the publication, there was in fact created a logical basis which would enable one to conclude that, in view of the said meaning of those words, one of the "dangerous" consequences that the Attorney-General suggested was likely to ensue.

           

            As for this last question, the circumstances rather point in the opposite direction. For what do we observe? First of all, it turns out that that article was based wholly on the assumption that the news item published in "Ha'aretz" on March 9, 1953. concerning the content of the declaration alleged to have been made by Mr. Abba Eban in Washington regarding the official policy of the State of Israel, was true; that is to say, that that is in fact the policy that the author of the article was protesting against and which led him to advocate what he did. Secondly, it appears that five days after the publication of the article, the Prime Minister announced in the Knesset that the news item was none other than "a piece of journalistic imagination", and that, moreover, the official policy of Israel was "to defend its borders and its form of government against revolution and attack”

 

            In those circumstances - when, on the one hand, the very essence of the view advocated in the two passages cited is dependent on that news item of March 9, 1953, being an accurate reflection of the official policy of the present Government of Israel and, on the other hand, it became clear, only a few days after the publication of the article, that that news item was incorrect and without any foundation in fact, so that the condition above-mentioned does not exist at all - in those circumstances, can it logically be estimated that that appeal would have the effect of endangering the public peace? Could anyone really imagine that, after reading what was written in the article in question, "the masses" might at some time arise and employ violent means or refuse to carry out their lawful duty of enlisting for military service, just in order to bring about the reversal of the policy which, as it appears, was not in any wise declared by those qualified to do so to be the official policy of the Government of Israel at this time? Thus, we can give a negative answer - and a negative one alone - to those questions. And if it be said that the day may come when Israel's policy will turn into the policy against which the author of the stated article was agitating, that the readers will then recall the matters written therein and that, as a result thereof, they will act in the manner they were called upon to act by the author, so that the public peace will be seriously endangered, we would reply that that approach is none other than the approach of the "bad tendency" and "indirect causation" that we disapproved of as a standard proper to be employed by the Minister of Interior when deciding whether to exercise the power stated in the said section 19(2)(a).

 

            It follows that in making the order for the suspension of the newspaper "Al-Ittihad", too, for a period of fifteen days, the respondent exceeded his jurisdiction.

           

            For these reasons, we have decided to make absolute the orders nisi given in each of these two cases.

           

                                                                              Orders nisi made absolute.

                                                                              Judgment given on October 16, 1953.

 

APPENDICES

 

The Article in "Kol Ha'am" - Appendix A

 

"Topic of the Day

                                                                                    Let Abba Eban Go and fight Alone...

                                             

       The Ben-Gurion-Bernstein Government has not reacted in any way to Abba Eban's announcement concerning his readiness to provide 200,000 Israel troops in the war against the Soviet Union. The official silence can only be interpreted as complete agreement with the remarks of A. Eban. More than that. The Ambassador of the Ben-Gurion-Bernstein Government cannot be assumed to have made his pronouncement in his own name and not in the name of the Government as a whole.

      

       A. Eban's pronouncement is exceptional, even in the Atlantic camp, since every government, within the aggressor Atlantic bloc is endeavouring, with all its might, to place as few troops as possible at the disposal of the American generals. The confirmation of the war pacts of Bonn and Paris has so far met with great difficulties. Many countries in Asia and Europe, Britain and India among them, are seriously criticising the policy of Eisenhower-Dulles.

      

       It seems, therefore, that the Ben-Gurion Government is pushing its way into the front ranks of the warmongers' camp; it is prompter than any other government, even within the aggressor Atlantic bloc.

      

       The finance bosses of America do not feel obliged to take into account the "war effort" of Ben-Gurion, Sharett and Abba Eban. The Lebanese newspaper, "Az-Zaman", has quoted American officials as stating that john Foster Dulles, the American Foreign Minister, and Anthony Eden have reached agreement on a common policv which calls for the consent of Israel 'to the annexation of the Negev to jordan, in order that the British army stationed in the Suez Canal Zone can transfer to the Negev' and their consent to other concessions, such as the transfer of Haifa port to the Atlantic command, etc.

      

       The White House is trying very hard indeed to increase the arms race in the Middle East, and the dispatch of American weapons to the value of 11 million dollars leaves no doubt as to that. And that is not all. The State Department has delivered an ultimatum to the Ben-Gurion Government regarding the evacuation of the grounds of the Arab College in Jerusalem. The Ben-Gurion Government has obeyed the ultimatum without a murmur.

      

       The anti-Soviet policy of the Ben-Gurion-Bernstein Government resembles the policy of the Polish reactionaries, Beck and Ridz-Smigly, who out of blindness and anti-Communist hatred brought national disaster on their country.

       Despite the anti-Soviet provocation, the masses in Israel know that the Soviet Union is faithful to the policy of the brotherhood of peoples and peace. The speeches of Comrades Malenkov, Beria and Molotov have once more confirmed that. If Abba Eban or anyone else wants to go and fight on the side of the American warmongers, let him go, but go alone. The masses want peace and national independence, and are not prepared to give up the Negev in return for joining the Middle East Command.

      

       Let us increase our struggle against the anti-national policy of the Ben-Gurion Government, which is speculating in the blood of Israel youth.

      

       Let us increase our struggle for the peace and independence of Israel."

      

 

The Article in "AI-Ittihad" - Appendix B

 

"The People Will not Permit Speculation in the Blood of its Sons.

 

       At the opening of the 'Independence' Bonds Conference last week in New York. Abba Eban. Ben-Gurion's Ambassador in the United States, declared that the Government of Israel was prepared to supply two hundred thousand Israel troops to fight on the side of the United States in the event of war against the Soviet Union.

      

       To this day, no reply has appeared on behalf of the Ben-Gurion-Bernstein Government to this grave pronouncement by its Ambassador and representative in New York. If that silence means anything at all. it means that the Government expresses full agreement with that pronouncement. that that pronouncement was not made save at its behest, that no official representative of anv Government can express in his speeches and declarations other than the opinions and policy of his government.

      

            This self-humiliation before the gates of American imperialists is not new on tile part of the Ben-Gurion Government, its diplomats and representatives. This Government has become accustomed to running as fast as it can before the chariot of American imperialism, in its endeavours to overtake all of its satellites and to express its faithfulness to its masters and warmongering supporters, and to prove to them by every form of compliance that it is the faithful servant whose services cannot be dispensed with, that it hopes to win a glance of satisfaction from it. At a time when American imperialism is meeting with many difficulties in carrying out its programmes in each of these satellite states, and at a time when those governments are trying to squirm and manoeuvre and even dare at times to criticise the Eisenhower-Dulles policy, and at a time when a government like that of Naguib in Egypt and Shishakli in Syria are still afraid of binding themselves to any Kind of guarantee to join the Mediterranean bloc, we see that the Ben-Gurion Government is crawling on all fours and asking and begging to be received into that bloc, and promising to hand over bases, ports, airfields and cannon-fodder to the American war machine. But it seems that the lords of Wall Street and their representatives in the White House do not yet appreciate this Ben-Gurionic service given with such 'generosity' and do not see any need for giving a friendly glance at their Israeli lackeys for being in their 'pocket', after breaking off relations with the Soviet Union, and after becoming completely dependent, from the political and economic point of view, on the "kindness" of American imperialism. Thus we see that rulers of America are trying to make up to Naguib, Shishakli and lbn-Saud, and are no longer interested in Ben-Gurion and his offers. This week, the Lebanese newspaper, 'Az-Zaman', wrote that Foster Dulles, at present on a visit to the Mfiddle East, is carrying in his pocket a programme for peace between Israel and tile Arab countries, which includes stripping Israel of the Negev and annexing it to Transjordan, in order that the British troops evacuating the Suez Canal can be transferred there.

 

          And so all forms of surrender by the Ben-Gurion Government, and all her demonstrations of faithfulness, will not avail her with her American masters; moreover, her economic, political and state bankruptcy, internal and external, are beginning to be revealed to the masses, who have started to understand whither this Government is dragging them - not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine, whilst those masses do not want that fate and will demonstrate their refusal.

         

          If Ben-Gurion and Abba Jeban want to fight and die in the service of their masters, let them go and fight by themselves. The masses want bread, work, independence and peace, will increase their struggle for those objectives, and will prove to Ben-Gurion and his henchmen that they will not allow them to speculate in the blood of their sons in order to satisfy the will of their masters."

         

 

 

CA 10085/08 and

Counter Appeal

CA 6339/09

CA 7607/09

 

Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel

 

v.

 

1. Estate of the late Tufik Raabi

2.  Israeli Consumer Council

 

 

The Supreme Court sitting as the Court for Civil Appeals

[29 November 2010]

 

Before Justices E. Hayut, U. Vogelman,  Y. Amit

 

 

Israeli Legislation  Cited

Class Actions Law, 5766-2006, ss. 20, 22, 23

Restrictive Trade Practices Law,  5748-1988

Banking  (Service for Customer) Law, 5741-1981

Equal Rights for Disabled Persons Law, 5758 – 1998, ss. 19 (54)   - 19 (64)

Male and Female Workers Equal Pay Law 5756- 1996, s. 11

Standards Law 5713-1953, ss. 9(a), 17 (a) (1), 17 (b)

 

 

Israeli Supreme Court Decisions Cited

 

[1]        CA 1338/97  Tenuva Central Cooperative for the Marketing of Agricultural Produce in Israel Ltd v. Raabi,  IsrSC 57 (4) 673 [2003]

[2]        CA 1977/97 Barazani v. Bezeq Israel Telecommunications Company Ltd, IsrSC 55 (4)  584 (2001);

[3]        FHC 5712/01 Barazani v. Bezeq Israel Telecommunications Company Ltd, IsrSC 57 (6)  385 (2003);

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

[5]          LCA 3126/00 State of Israel v. E.S.T. Project Management and Manpower Ltd, IsrSC 57 (3), 220 (2003)

[6]        FHC 5161/03  E.S.T   Project Management and Manpower Ltd v. State of Israel, IsrSC  60 (2) 196 (2005)

[7]        CA. 8430/99 Analyst I.M.S. Trust Funds Management (1986) v. Ard Industrial Investment and Development, 256  IsrSC 56 (2)

[8]        LCA 4556/94 Tetzet v. Zilbershatz, IsrSC 49(5) 774 (1996);  

 

[9]        CA 345/03 Reichart v. Raabi Moshe Shemesh Heirs  (not yet reported) 7.6.2007)

 

[10]      CA 3506/09 Zaig v. Waxelman, Waxelman Accountants (not yet reported)( 4.4.2011)

 

[11]      CA 3613 Ezov v Jerusalem Municipality  IsrSC 56 (2) 787 (2002).

 

[12]      LCA 8733/96 Langbert v. State of Israel – Israel Lands Administration, IsrSC 55 (1) 168  (1999).

 

[13]      CA 7028/00 A.B.A. Trust Funds Management Ltd v. Elsynth Ltd (not yet reported, 14.12.2006)

 

[14]      HCJ 2171/06 Cohen v. Knesset Speaker (not yet reported, 29.8.2011)).

 

[15]      CA 10262/05 Aviv Legal Services Ltd v. Hapoalim Bank, Head Management  (not yet reported, 11.12.2008)

 

[16]      CA 3901/96 Local Planning and Building Committee v. Horowitz, IsrSC 56 (4) 913, 328 (2002)

 

[17]      CA 4576/08 Ben-Zvi v. Prof. His  (not yet reported, 7.7.2011)

 

[18]      CA 8126/07 Estate of the Late Bruria Zvi  v. Bikkur Holim Hospital (not yet reported, 3.1.2010);

[19]      CA 9590/05 Rahman Nuni v. Bank Leumi LeIsrael Ltd , (not yet reported  10.7.2007)

 

[20]      CA 6153/97 Shtendal v. Prof. Yaakov Sadeh , IsrSC 56 (4) 746 (2002)

 

[21]      CA 9936/07 Ben David v. Dr. Entebbe (22.2. 2011)

 

[22]      CA 9817/02 Weinstein v. Dr. Bergman, (not yet published, 16.6. 2005)

 

[23]      LCA 9670/07 Anon v. Anon (not yet reported,6.7.2009)

 

[24]      CA 2967/95 Hanan Vakshet Ltd v. Tempo Beer Industries Ltd,  IsrSC 51 (2), 312 (1997)

 

 [25]     FHC 4693/05 Carmel Haifa Hospital v. Malul  (not yet reported, 29.8.2010)

 

[26]      355/80 Anisimov Ltd v. Tirat Bat-Sheva Hotel. IsrSC 35 (2) 800 (1981)

 

[27]      CA 4022/08 Agbaba v. Y.S. Company Ltd],(21 October 2010 paras 10 – 24; 

 

[28]      C.A. 754/05 Levi v. Share Zedek Hospital) (2007) IsLR 2007  131

 

[29]      CA Reznik v. Nir National Cooperative Association for Workers Settlement [not yet published]   (20.7 2010]

[30]      CA  1509/04 Danush v  Chrysler Corporation (not yet published, 22.11.2007)

[31]       CA 9134/05  Adv. Eliezer Levit v. Kav Of Zafon, Cooperative Association for Services Ltd  [not yet reported, 7.2.2008)

[32]      AAA 2395/07  Accadia Software Systems Ltd v. State of Israel – Director of Tax and Stamp Duty 27.12.2010)

[33]      CA 7094/09 Borozovsky  Conveyancing Ltd v. Ichurn Itur Veshlita Ltd (14.12.2010) 

           

 

American Cases

 

[34]Affiliated Ute Citizens of Utah v. United States 406 U.S. 128, 153-154 (1972) ;

 

[35 ]Binder v. Gillespie 184 F.3d 1059, 1063-1064 (9th Cir. 1999)

 

[36]; Poulos v. Caesars World Inc. 379 F.3d 654, 666 (9th Cir. 2004

 

[37] Kennedy v. Jackson National Life Insurance Company, 2010 U.S. Dist. Lexis 63604, 25-28 (N.D.Cal 2010)

 

[ 38]  Negrete v. Allianz Life Insurance Company of North America 238 F.R.D 482, 491-492 (C.D. Cal. 2006)[.

 

[39]Klay v. Humana, Inc.382 F.3d 1241, 1259 (11th Cir. 2004)

 

[40] Johnson v. The Goodyear Tire & Rubber Company, Synthetic Rubber Plant, 491 F.2d 1364, 1379-1380 (5th Cir. 1974);

 

[41]Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972)

 

[42]Allison v. Citgo Petroleum Corp., 151 F.3d 402, 417 (5th Cir. 1998);

 

[43 ]Reeb v. Ohio Department of Rehabilitation and Correction, 435 F.3d 639, 650-651 (6th Cir. 2006);

 

[44] Fuhrman v. California Satellite Systems, 179 Cal. App. 3d 408, 424-425 (1986);

[45] Altman v. Manhattan Savings Bank, 83 Cal. App. 3d 761, 767-769 (1978);

 

[46] Stilson v. Reader's Digest Association, Inc., 28 Cal. App. 3d 270, 273-274 (1972);

 

[47] Birnbaum v. United States, 436 F. Supp. 967, 986 (1977).

 

[48] Bates v. UPS 204 F.R.D. 440, 449 (N.D. Cal. 2001)

 

[49]  Olden v. LaFarge Corp. 383 F.3d 495, 509 (6th Cir. 2004)-

 

[50] Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767, 782-787 (9th Cir. 1996)

 

[51 ] Wal-Mart Stores, Inc. v Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011)

 

[52] Midwestern Machinery v. Northwest Airlines 211 F.R.D. 562, 572 (D. Mn. 2001)

 

[53 ] McLaughlin v. American Tobacco Co.

 

[54 ]: Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974);

 

[55] Stewart v. General Motors, 542 F.2d 445 (7th Cir. 1976);

 

[56]  Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th Cir. 1973); 

 

[57] United States v. Wood, Wire & Metal Lathers Int. Union, Local Union 46, 328 F.

 

[58]Hood v. Eli Lilly & Company 671 F. Supp 2d  397, 434-453 (E.D.N.Y. 2009)

 

[59] Long v. Trans World Airlines, Inc., 761 F. Supp. 1320 (N.D. Ill. 1991))

 

[60] Allison v. Citgo Petroleum, 151 F.3d 402, 414-415 (5th Cir. 1998);

[61] Lemon v. Int'l Union of Operating Engineers, Local No. 139, AFL-CIO 216 F.3d 577 (7th Cir. 2000);

[62] Jefferson v. Ingersoll Int'l, Inc. 195 F.3d 894 (7th Cir. 2001); 

[63] Reeb v. Ohio Department of Rehabilitation and Correction, 435 F.3d 639 (6th Cir. 2006).

[64]  Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990).

 

[65]  Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977)

 

[66]  Redish; Powell v. Georgia-Pacific Corporation, 119 F.3d 703, 706 (8th Cir. 1997)

 

[67]  Airline Ticket Commission Antitrust Litig, 268 F.3d 619, 625 (8th Cir 2001)

 

[68] Folding Carton Antitrust Litig. 744 F.2d 1252 (7th Cir. 1984)

 

[69]  Houck v. Folding Carton Admin. Comm., 881 F.2d 494 (7th Cir. 1989)

 

[70]  Cuisinart Food Processor Antitrust Litig38 Fed. R. Serv. 2d (Callaghan) 446 (D. Conn.1983).

 

[71] Democratic Cent. Comm. v. Washington Metro. Area Transit Comm'n

 

[72]  Domestic Air. Transp. Antitrust Litig

 

 

 

For the petitioners — T. Feldman, Y. Elam, F. El-Ajou, H. Jabarin.

For the respondents — A. Helman, A. Segal-Elad, H. Gorni.

 

 

JUDGMENT

 

Justice E. Hayut

 The decision forming the subject of the appeals before us was given in a consumer class action that was approved for filing against Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel Ltd (hereinafter – “Tnuva”).  The suit concerns the misleading of the consumer public and the production of a dairy product in contravention of the official standard in force on the dates relevant to the suit, by reason of the addition of silicon to  long lasting low fat (1%) milk, that was manufactured and marketed by Tnuva, without making any mention of the silicon component on the product.

Factual Background and the Process of Approving the Suit as a Class Action

     1. At the end of 1993 a problem of over-frothing arose in the process of mixing long lasting milk containing 1% fat (hereinafter: “the milk”) as a result of a problem in one of the machines on the production line. Given the high cost of the malfunctioning machine (about 300 – 400 thousand  U.S dollars) the personnel of the Rehovot dairies decided to solve the problem of  frothing  by adding a chemical substance known as “Polydimethyilsiloxane” , the trademark for which is E-900, to the milk.  This substance is known as “silicon” and was purchased by the dairy in Rehovot, from Amgal Production of Chemicals (1989) Ltd (hereinafter: "Amgal")  without informing the central management of Tnuva.  The Amgal company purchased the silicon from an English company. The aforementioned addition of the silicon to the milk continued from 25 January 1994 until 6 September 1995, just after the affair was exposed. During that period the Tnuva dairy in Rehovot produced and marketed to the public an overall amount of 13 million liters of milk.

The addition of the silicon to the milk was first exposed in the media on 30 August, 1995 and Tnuva's initial reaction consisted of a sweeping denial  of the allegation against it.  This was the case both in an interview of the director of the  Tnuva Milk department, Mr. Yosef Yudovitz and in the official press releases on behalf of Tnuva published in a number of papers on 31 August, 1995, in which it stated that the Tnuva long life milk was free of the silicon supplement and that independent laboratory tests verified this (similar pronouncements also appeared on  1 September, 1995).  The Tnuva representatives continued to deny the addition of silicon in a hearing conducted in the Knesset Economic Committee on 5 September 1995, but soon after that, on 10 September 1995 an internal commission of inquiry appointed in the wake of the publication determined that indeed a silicon supplement had been added to the long life milk that contained 1% fat, in the Tnuva dairy of Rehovot, and the commission's conclusions were published in the media. In the wake of these conclusions, Tnuva recalled all of the cartons of 1% long life milk from the shelves of the stores, to which it was feared that the silicon had been added, and the manager of the Rehovot dairy was suspended from his position.   The National Food Service of the Ministry of Health likewise decided  that Tnuva would have to destroy all of the milk containing silicon and it was prohibited to use it, even as food for animals.  It was further decided on 12 September 1995 to revoke the permit that had been given to Tnuva confirming appropriate conditions of production. Tnuva on its part decided on the same day to establish a commission to investigate the affair, which would give recommendations on "lessons to be learnt and conclusions to be drawn in each and every area that it found appropriate, including personal conclusions"  The committee  headed by Prof. Yehuda Danon, and after it had heard the testimonies and examined the documents,  it published the "Committee's Report on the Examination of Long Life Milk" (hereinafter: the Danon Committee Report"). In the framework of the Report criticism was leveled against senior workers in the Tnuva dairy, against the senior management of Tnuva by reason of the absence of supervision and inspection in the Tnuva dairy, and even against the Food Service in the Ministry of Health, and the Institute for Inspection and Quality in the Trade and Industry Office that was supposed to have conducted supervision and inspection of the quality of the food.

2.    The state on its part on 30 January, 1996 filed an indictment against Tnuva in the Magistrates Court of Rehovot, and against  its CEO and against the manager of the Milk Department and the manager of the dairy for offences of misleading in an advertisement, pursuant to ss. 2(a), 7 (a)(1), 23 and 27 of the Consumer Protection Law 5741-1981 (hereinafter:
"Consumer Protection Law") and against Tnuva and the manager of its dairy in Rehovot for the offences of failing to comply with an official standard pursuant to ss.  9(a), 17 (a)(1) and 17 (b) of the Standards Law 5713-1953 (hereinafter:"Standards Law"). On 4 March 1997 the defendants were convicted by force of their confessions for the offences that were ascribed to them, and the Court accepted the plea bargain that was reached between them and the state, in accordance with which a financial penalty was imposed on Tnuva and the other defendants  (the financial penalty imposed on Tnuva was for the sum of NIS 28,000).

Another proceeding instituted against Tnuva was the present proceeding, which began in a suit filed in the Tel-Aviv Jaffa District Court  on 14 September, 1995 by the late Tufik Raabi (hereinafter:  "Raaabi") along with an application for the certification of the suit as a class action (CF 1372/95, Mot. 11141/95. In his (amended) suit, Raabi claimed that he had consumed long lasting low fat (1%) milk during the relevant period and that the silicon was not specified as one of the ingredients on the packaging of the product, and as such Tnuva had violated the provisions of sections 2,4, and 17 of the Consumer Protection Law.  Raabi further alleged a infringement of an “unwritten contract” with him and with the consumer public in its entirety and negligence on the part of Tnuva in all of the stages involved in “production, supervision, marketing and advertising of the facts related to the addition of the prohibited material to the milk and the fact of the reasonable probability of a real and/or potential health hazard in the product that it marketed”.  In his petition Raabi requested restitution of the sums he had paid in consideration for the milk that he had purchased in the relevant period and compensation for the mental anguish caused to him by the addition of the silicon and by reason of the “misleading and contemptuous” conduct of Tnuva. Raabi’s request for his suit to be recognized as a collective action relied on Chapter F’1 of the Consumer Protection Law, which at that time included an arrangement for the filing of a collective action based on the grounds specified therein. 

3.    The Tel-Aviv District Court (the late Honorable Judge M. Telgam), on 13 June 1996 certified Raabi’s request to file a class action in the name of all of the milk consumers during the relevant period, but the court stressed that in this case it would not certify the remedy of restitution because Raabi had already consumed the milk and had not claimed that any real damage had been caused by its consumption, and he further stressed that even though there was nothing to prevent Raabi from proving that his health had been damaged thereby,  he was not permitted to represent the members of the group regarding “future bodily damage”.

An appeal and a counter appeal against the certification decision were filed by the parties to the Supreme Court (CA 1338/97 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel Ltd v. Raabi  [1]  (hereinafter: Decision on the Certification Request)). Tnuva challenged the certification of the suit as a class action and Raabi challenged the determination that the class action would not include the remedy of restitution, and the fact that there was no award for legal fees in his favor. The Israeli Consumer Council joined as a party to the hearing (Raabi and the Israeli Consumer Council will hereinafter be referred to as “the representative plaintiffs”), and in the Attorney General joined as a party in the appeal proceedings, in support of the confirmation of the class action

4.    On 19 May, 2003 in a majority decision, this Court rejected the aforementioned appeals filed by the parties and left the decision of the District Court intact in the sense of certifying the filing of a class action. Regarding this, Justice M. Naor held that the damages claim by Raabi concerns the  non-pecuniary damage that was caused to him by negative feelings, and feelings of disgust, which stem from the consumption of milk that contains silicon “with all of the associations attendant thereto” and that damage of this kind was prima facie “remunerable damage”. The justice further ruled that the addition of the silicon supplement to the milk in defiance of the standard constitutes an  infringement of individual autonomy, and that under the circumstance this not a “trivial matter) (de minimis), and that despite the fact that the Consumer Protection Law does not contain a provision that enables a compensatory award for the benefit of the public or the benefit of a group (all or in part) the court is permitted to award this kind of remedy in a suit under the Consumer Protection Law in appropriate cases in which there is a structural difficulty in locating the consumers. All the same, Justice Naor ruled that the Court would not intervene with the District Court’s decision not to award restitution in this case. Regarding the plaintiffs’ group Justice Naor ruled that it would include all those who had consumed  long life milk of 1% to which silicon was added  during the period between 23 October 1994 and September 1995”, having regard for the fact that the provision in the Consumer Protection Law that allowed the filing of a collective action came into effect on the 23 October 1994 and the fact that in the month of September 1995 the dairy products containing silicon were removed from the shelves.

Deputy President, S. Levin concurred with the ruling of Justice Naor (subject to the issue of awarding a remedy to the public being left as requiring further consideration), and Justice Proccaccia ruled in her minority opinion that the suit should not be recognized as a class action.  She held that the chances of Raabi’s personal suit succeeding are not “self evident” and in her view, "the claim concerning the injury as a result of the inclusion of the supplement in the food product, in deviation from the standard, but without having caused any damage to health, does not dictate, "self evidently" that damage flows naturally in the regular course of events".  Justice Proccaccia added that she would also have refrained from approving the suit as a class action in accordance with the discretion conferred to the court in this matter  (s. 35A of the Consumer Protection Law), inter alia given the fact that the nature of the alleged damage  is not necessarily common to the entire consumer public, and "it is connected to the individual health threshold of each consumer and significantly dependent upon it."

The Class Action Proceedings

5.    Once the suit was certified as a class action, the District Court (Judge Dr, E. Benyamini)  ordered the publication of a notification to the public and the filing of amended claim sheets in accordance with the prescribed conditions of the certification. In the amended statement of claim that they filed, the representative plaintiffs claimed that the approximate number of members in the plaintiff group was estimated at about 43% of the population, which constitutes over two million consumers, and that the members of the group should be compensated for infringement of their autonomy and negative feelings occasioned by inter alia deception, contempt, mental anguish, nausea, aversion to essential food products, fear and anxiety.  According to the representative plaintiffs, the members of the group in their entirety should receive compensation of NIS 8000 for each consumer included in the plaintiff group.  Tnuva on its part argued that the claim relating to the infringement of individual autonomy should be rejected, because no such infringement was actually  caused, and if caused, it was minor and peripheral, in the category of de minimis.  In this context Tnuva stressed,  inter alia  that the addition of silicon to the milk  did not harm the consumers and that silicon was a recognized, approved, and frequently used food supplement all over the world.

6.    The first stage of preliminary proceedings in the Lower Court was intended,  inter alia to crystallize the proceedings for the hearing and the means of proving the suit. In this framework the Lower Court  ruled that the evidentiary stage would not be divided into separate hearings for the question of responsibility and the question of damage.  The court further rejected Tnuva's request to establish a system for proving the non-pecuniary damage on an individual basis, ruling that already at the preliminary stage  "it was clear that the only way of proving damage in this case, if at all, in the absence of any method for locating the purchasers of the milk, is by way of market surveys for the entire consumer public, or even a few sample affidavits of milk consumers, along with the affidavit of [Raabi]” (para. 14 of the decision). On the other hand, the court left open the question of whether it was possible to award general compensation to the entire plaintiff group based on this form of proof.  In addition the court ruled that insofar as in accordance with the standard silicon was prohibited for the use of cows'  milk for drinking, there was no need to rule on the question of whether its use constitutes a health hazard, but it added that when examining the non-pecuniary damage caused by an infringement of autonomy and negative feelings, importance attached to the question of whether there are studies that show the possibility of damage to health as a result of the use of silicon and the question of the quantity necessary to cause such a risk. The reason for this is that if there are experts who contend that there is a possibility of damage to health, then it becomes necessary to address the question of  the consumer’s right “to decide whether he was interested in refraining from taking any risk involved in the consumption of the  milk”. The court further ruled that to the extent that there was proof for the ground of the claim and the alleged damage, and it was determined that compensation should be ruled for the benefit of the group or the public, it would consider the appointment of an expert- examiner and Tnuva would be obligated to supply him with the required economic data.

On 13 October, 2004 the Court actually appointed an expert-examiner in accordance with Regulation 124 of the Civil Procedure Regulations, 5744-1984  (Prof. Yechezkel Ofir, an expert in economic and marketing (hereinafter – Ofir)), and in its decision of 17 March, 2005  the Court further ruled that “the relevant population for this claim is, essentially, the people who actually purchased the milk” and that the intention was to those who purchased the milk in Israel (para. 16 of the decision). All the same, in that decision the Court ruled that the plaintiff group would also include persons who had consumed the milk in hotels, restaurants, and cafes (as distinct from those who consumed it at places of work and who did not actually purchase the milk that was consumed), notwithstanding that with respect to them it would be difficult to prove an infringement of autonomy because they did not choose the category of milk that they had drunk..

 

The Partial  Decision of the District Court

7.    In its partial decision of 7 October 2008 the District Court ruled that the class action suit should be accepted.  In its opening comments the Court noted that the Class Action Law, 5766-2006 (hereinafter – “the Law” or the “Class Action Law”) which was enacted and came into force after the certification of the suit as a class action, would also apply to suits pending at the time of its publication, and hence would also be applicable to this particular class action suit. Even so, the Court ruled that “regarding the ground of claim and the plaintiff group, a decision would be given in accordance with the Consumer Protection Law, which as stated, only applies to the a “consumer” as defined in the law”, while also pointing out that with the enactment of the Class Actions Law, the representative plaintiffs had not petitioned to amend the statement of claim and broaden the scope of the group in accordance with the broadened grounds of claim for which a class action can be filed under the Law.

In the partial decision the Court conducted an extensive survey of the evidentiary material submitted to it, including, inter alia, the Report of the Danon Committee, an expert opinion and public opinion surveys. Regarding the criminal proceedings, the Court held that for purposes of the class action it was not possible to base "factual findings" on the holdings of the Court in the criminal proceedings, inter alia because in that proceeding, witnesses were not heard and evidence was not submitted. Still, the Court ruled that Tnuva's admission to the commission of the offences and the convicting verdict also constitute evidence against it in the proceeding at hand ( whether by force of an admission of a litigant or by force of the provision of section 42A of the Evidence Ordinance [New Version] 5731-1971).  

As a preliminary remark, with implications for both the grounds of the suit and the proof of damage, the Court ruled that it was not required to rule on the "scientific question" pertaining to the existence of a health risk in the drinking of milk containing silicon, and that for purposes of the suit it was sufficient to examine the question of whether it was possible to rule out the possibility of such a health hazard. The Court determined that based on the evidentiary material presented, it could rule that even if there was no proof that the drinking of milk containing silicon caused, or was liable to cause immediate health damage to the consumers, it was not possible to rule out the existence of a health hazard in the long term, especially for children. The Court added that according to its approach, the consumers were entitled to know that the milk contained silicon  in defiance of the law and the relevant standard,  and that in these particular circumstances it was not possible to rule out the health risk involved its consumption, and it also added that had it been required to rule on the aforementioned scientific question  it would answered it in the affirmative, given  the existence of a standard which was presumably based on considerations of  public health and which would transfer the onus of proving the absence of a health hazard to the party in breach, and Tnuva, had not discharged that onus.

8.    In adopting Raabi's version, which was that he purchased within the State of Israel (and not within the areas of Judea and Samaria) as claimed by Tnuva, low fat long life mile of Tnuva which was produced in the Tnuva dairy in Rehovot in the period relevant to the suit, the Court held that Raabi has a personal ground of claim against Tnuva. The Court likewise held that even had its conclusion been different it would not have determined the fate of the class action, inasmuch as following the certification, the suit was that of all of the members of the group, and at all events, it was possible to replace a representative plaintiff who lacked a person grounds of claim, by force of s.8(c) (2) of the Class Actions Law

Regarding the existence of the ground of misleading, the Court noted that in fact it was not disputed that Tnuva misled its consumers and added that "misleading" is too delicate a word to describe Tnuva's conduct, which bordered on consumer fraud". This act of misleading, he added ,was done intentionally with respect to matters that were most definitely essential from the consumers' perspective, because it was an act of misleading regarding the essence and nature of the product (s. 2(a)(1) of the Consumer Protection Law), its components (section 2(a) (2) of the Consumer Protection Law), the risks involved in its use (s. 2(a)(4) of the Consumer Protection Law), and relating to its compliance with the standard (2(a) (11) of the Consumer Protection Law). The Court stressed in this context that the milk was a product that was supposed to be "as pure and natural as possible" and that to a large degree it was consumed by a relatively vulnerable population. It should also be added that the misleading in this case was compounded with the breaching of the obligations imposed on Tnuva by force of the Standards Law, and in this context the Court addressed the fact that the Israel Standard relating to drinking milk which prohibited the addition of silicon to milk is a binding official standard which also involves (as opposed to the "general" Israeli standard) "significant obligations", and it is prohibited to produce or to trade in a product that does not comply with its conditions.  By the same token, Tnuva did not indicate the existence of the silicon supplement on the packaging, and in doing so breached its disclosure duties pursuant to section 4(a) of the Consumer Protection Law, because the product that did not meet the requirements of the standard and was substantively defective and in accordance with section 17 (a) of the Consumer Protection Law.  The Court further held that once it was proved that Tnuva as a dealer had made a misleading representation, the assumption should be that the consumers were exposed to the representation and acted upon it, and the Court emphasized that misleading with respect to the Consumer Protection law can also take place by way of failure to make proper disclosure. In this context the Court further ruled that it was not necessary to prove what exactly each consumer knew and the presumption was that the consumer placed his trust in the dealer and there were no grounds for imposing a duty upon the consumer to clarify whether the product he had purchased complied with the requirements of the Law or the standard.  In view of this the Court ruled that in the case before us the foundation of misleading was fulfilled.

9.    In referring to the rule established in CA 1977/97 Barazani v. Bezeq Israel Telecommunications Company Ltd, [2] at p. 584 (hereinafter "Barazani"); and FHC 5712/01 Barazani v. Bezeq Israel Telecommunications Company Ltd [3] at p. 386  (2003) (hereinafter Further Hearing Barazani the Court noted that the misleading of a consumer constitutes a grounds in tort, by force of the provision of s. 31 (a) of the Consumer Protection Law, and that as such, it was subject to the "doctrinal first principles of the Tort Ordinance [New Version]. The Court further added that even if it was a conduct based grounds (as opposed to consequential) for the purposes of the receiving compensation it was necessary to prove damage and a causal connection between the act of misleading and the damage, as wall as the consumer's awareness of the misleading picture and his reliance thereupon. In our case, so ruled the Court, there was misleading by way of omission, "and it is undisputed that the consumers relied on the fact that the milk that Tnuva produced complied with the requirements of the Law and the standard also indicating that Tnuva never claimed to the contrary.

Regarding the categories of damage by dint of which the action was approved as a class action, the Court noted that these included "non pecuniary, non-tangible, damage that included  negative feelings, such as the feelings of disgust, mental anguish and discomfort, as well as the infringement of individual autonomy" , the thrust of which was the right to formulate a decision  whether to agree to a certain proceeding, in a considered, intelligent and informed manner and with knowledge of the relevant facts. The Court further noted that the non-pecuniary damage caused as a result of the infringement of autonomy admitted of compensation even in the absence of bodily damage, in accordance with the criteria established CA 2781/93 Daaka v. Carmel Hospital, Haifa  [4] 526 (hereinafter – Daaka).  In that context the Court rejected Tnuva's claim that the suit should be rejected given that the injury falls into the category of a "trivial matter", holding that that fact of the damage being mild need not stand in the plaintiff's way, and the very fact that the act damaged the public at large indicates that the act is not trivial.  According to the Court's approach, the severity of the act in this case must be assessed from the perspective of the group in its entirety and not that of the individual consumer.  According to this approach an act consisting of the misleading of the broad consumer public regarding the contents and legality of the production of milk, which is a basic product, cannot be considered as "trivial"..

Regarding the proof of personal damage that was caused to  Raabi, the Court adopted the essence of his claim, which was that as a result of his exposure to the case he experienced negative feelings such as disgust, anger and annoyance by reason of the fraud  and anxiety regarding the consequences of drinking.  The Court noted that though it could be argued that Raabi's feelings were "exaggerated" it was not possible to argue with subjective feelings., and it rejected Tnuva's claim that his feelings stemmed from the publications in the media according to which silicon is suspected of being a carcegengous product. Regarding the damage caused to the members of the group, the Court noted that in principle they were obligated to prove the alleged damaged that they sustained, but that in a mass collective action, as in the case before us, it is not practically possible for each one of the members of the group testify, or even to actually locate all of the milk consumers.  Referring to Regulation 9 (c ) of the Consumer Protection (Procedure for a Class Action), 5755-1995, and s. 20 of the Class Actions Law, the Court ruled that under these circumstances it would suffice to prove the damage in "from a general perspective". The Court noted that the representative plaintiffs had sufficed with the testimony of Mr. Raabi and in the expert opinion prepared by the experts Prof. Mevorach and Dr. Katz on behalf of Maagar Mohot based on a telephone consumer survey (hereinafter: “computer survey”), and that they should rather have filed the affidavits of a number of consumers; however, its position was that the evidence filed was sufficient for the proof of the damage and the determination of its rate, and in this context the Court rejected the claims raised by Tnuva against the consumer survey and its reliability, noting inter alia that drafters of the expert opinion had made a reliable impression, and that they had knowledge and experience in their field.

10.  Giving detailed consideration to the results of the consumer survey the Court noted that the survey indicates that the range of negative feelings (including revulsion, anxiety, fear, anger hatred, disappointment) were to a large or intermediate degree shared by about 66% of the milk consumers. At the same time, the Court accepted Tnuva’s claim concerning a certain inconsistency between the data presented and its claim that in the fifth question, (pertaining to the time at which the negative feelings emerged) the interviewees should not have been presented with the representation whereby the publications concerning the health hazards of silicon were verified both by the Ministry of Health and by Tnuva. However, since the two questions defined by the Court as “cardinal” questions in the survey  (the feelings of the interviewees and the grading of their severity) were asked before the question tainted with the aforementioned defect,  the Court deemed that there was no concern  that the survey  was  biased. The Court was prepared to assume, to be on the safe side,  that the survey’s findings tended to somewhat exaggerate the negative feelings, but ruled that this did not lead to the conclusion that the survey was defective in its entirety, and it further held that it had been persuaded that the survey was adequately grounded and that its findings were consistent with plain common sense.

In this context the Court further added that Tnuva on its part had sufficed with claims against the consumers survey presented by the representative plaintiffs, but did not present its own consumer survey from the relevant period and one can only wonder why. Accordingly, despite the element of exaggeration evident in the survey data presented by the plaintiffs, the Court deemed that its conclusion should be accepted, namely that various non-pecuniary damages were caused to the majority of the consumers, unrelated to the question of the health hazards involved in the consumption of milk containing silicon. On this count the Court dismissed Tnuva’s claims, based on the survey conducted by Prof. Gotlieb on its behalf in 2004 and the expert opinion of Prof. Hornik and Prof. Perry that it had submitted.  The Court stated that indeed there is a hierarchy in the categories of infringements of individual autonomy, but this, and the conceivable existence of damages graver than those in the case at hand, does not compel the conclusion that Tnuva’s conduct did not cause a substantial infringement of the consumer’s autonomy. The Court also rejected additional arguments made by Tnuva concerning the proof of the damage in this case, pointing out, inter alia, that for purposes of proving the damages head of infringement of autonomy it was not necessary to prove that the plaintiff would have refrained from acting in the manner that he acted had he been aware of the true situation, and for our purposes – that the consumers would have refrained from purchasing the milk had they known that it contained silicon.  A fortiori there is an infringement of the  consumers’ autonomy when it can be reasonably assumed that most of them, indeed, would not have purchased the milk had they known that the “classic health product” was actually manufactured in defiance of the Law and the standard, using silicon at a rate that was ten times greater than the rate permitted in other food products, and especially if they had known that some of the experts maintain that consumption of milk containing silicon may be a health hazard.  In this context the Court rejected Tnuva’s argument that silicon is a food supplement in other food products and is not harmful, pointing out that the silicon was purchased by Tnuva as a cleaning product, and which was not supposed to have been in the milk. The Court further noted that the infringement of individual autonomy emerges clearly from the consumers’ survey, but its approach was that it was not necessary to produce evidence of this damage – “the infringement of autonomy occurs along with the violation of the obligation to provide the consumer with all of the information, and the violation is an immanent result of tortuous conduct. The denial of the consumers’ right to decide whether to purchase and consume Tnuva milk, in a balanced, informed and knowing manner, being aware of the relevant facts, constitutes independent remunerable  damage, even in the absence of any other damage, and even absent proof that the consumers would have avoided purchasing the milk had they known all the facts”.  The Court added that the fact that Tnuva concealed  the insertion of the silicon into the milk from its consumers, combined with the fact that this was a matter critical for the consumers, is proof of the infringement of the consumer's autonomy in terms of being denied the right to choose the product of his choice in a considered, intelligent and informed manner, in other words the right to prefer a product that does not contain silicon manufactured in compliance with the requirements of the law and the standard. The Court further ruled that the right to autonomy is a basic constitutional right, the infringement of which mandates a appropriate and significant compensation.

11.  Regarding the evaluation of the damage the Court held that it was appropriate to have consideration for the gravity of the infringement of the right on Tnuva’s part in this case, and the infringement’s influence on the consumers’ decision and its degree of importance for them (in as much as the issue concerns a basic, “pure” product consumed by a vulnerable population. The Court added that even after giving consideration for the fact that the feelings of the interviewees may have been significantly affected by the media publications concerning the health hazard attendant to the consumption of milk containing silicon, half of those asked experienced negative feelings that are unrelated to anxiety, and it ruled that feelings of anxiety do not necessarily stem from the publications, but rather from Tnuva’s conduct. In this context the Court rejected the claim that the media publications severed the causal connection between the acts of Tnuva and the damage, stressing that the consumer cannot be expected to undertake an in-depth investigation of medical studies before he purchases milk, and if the addition of silicon to the milk was proscribed by law and the standard, and there are experts who deem that it may constitute a health hazard under certain circumstances, then the fear of the consumers is understandable and natural. This concern, it was ruled intensifies the infringement of the consumer’s autonomy,  just as it intensifies the accompanying negative feelings. The consumer is permitted to assume, and presumably did assume that the milk standard is intended to protect his health , and when Tnuva absolutely ignored the standard, the fear for health is justified and well based, even without the publications to the effect that silicon is suspected of being carcegenerous.

Accordingly, it was held that it had been proved that the group in its entirety had incurred damage by reason of infringement of individual autonomy.  The Court further determined that about a half of the group’s members suffered non-pecuniary damage that found expression in various negative feelings, based on the consumers' survey and an estimation that took into account the possibility that exaggerated media publications had partially contributed to the negative feelings.

Regarding the size of the group, in other words, the number of consumers in Israel who purchased the silicon during the determining period (between 23 October, 1994 and September 1995) for domestic needs, or for hotels, restaurants and cafes, the Court endorsed the expert opinion of  Ofir, the court expert, being impressed by his reliability and expertise, and preferring it over the expert opinions submitted by Tnuva.   The Court further mentioned that Ofir had determined (based on the weighted average of the various methods of calculation) that 166, 307 households had purchased the milk, but given that in an average household a number of people purchase milk, Ofer determined that the number of people who had purchased the milk ranged between 166,307 (number of households) and 330,000  (adult purchasers) with a tendency towards the lower number. This being so, the Court determined that the number of members in the group, i.e. the adults who purchased the milk during the relevant period, was 220,000 people, and that the members of this group were entitled to compensation for an infringement of their autonomy and a half of them were entitled to additional compensation by reason of negative feelings.  

12.  The plaintiffs requested that the remedy be calculated the sum of the damages to be awarded to each one of them  multiplied by their total numbers and in this context the Court noted that the high road was indeed that of individual compensation for each member of the group (sections 20(a)(1) and 20 (a) (2) of the Class Actions Law). This however is only possible when the number of members in the group is not large, when their identities are known and where they are able to prove their damage in the customary manner. On the other hand, there is a need for a certain degree of flexibility in proving damage when there is a practical difficulty of requiring each group members to prove his claim in the customary manner (by reason of their large numbers or because they cannot be expected to retain the relevant documents), and also where there is no practical means of locating all the members of the group  or where many of them will simply not bother to prove their damage due to its low rate. To overcome the difficulties involved in proving damage, its allocation and quantification in such cases, case law in the U.S.A developed a mechanism known as (FCR) Fluid Class Recovery, which was dwelt upon extensively by this Court. The Court did not ignore the fact that the case law in the U.S.A in this context is not uniform  but deemed that with the necessary caution “ideas can be drawn from it” for our purposes, while stressing that from the Explanatory Note to the Class Actions Law it emerges that the Israeli legislator “had this mechanism”. The Court referred to section 20(a) (3) of the Class Actions Law in accordance with which the Court is entitled to award overall compensation to a group, indicating that this section refers to the granting of a personal remedy to the members of the group and seeks to overcome the difficulty in calculating personal damage. The Court likewise referred to section 20 (c ) of the Law that allows an award of a general compensation to the public  or to the members of group, all of them or in part, while pointing out that this section is intended for cases in which it is not possible to locate the members of the group or to pay them compensation on a personal basis, notwithstanding that for purposes of granting this remedy too it is appropriate “to attempt to evaluate the sum of personal compensation owing to each individual member of the group in order to determine the sum of the overall compensation, and to ascertain that the sum of overall compensation does not exceed the estimated sum of aggregate damage that was caused to the group members…. it is likewise important to determine, at least by way of estimation the number of members in the group. This will assist the court to determine in the most accurate manner possible the overall sum for the group, for purposes of granting a remedy to the group or to the public” (para. 107 of decision).

On the other hand, the Court stressed that this sum of overall compensation does not necessarily reflect the product of the sum of personal damage suffered by each member multiplied by the number of members in the group, and some of the group’s members may actually not receive compensation at all, whereas other, non-members, will benefit from the compensation. The Court further added that the infringement of autonomy and the “negative feelings” in this case are at all events non-pecuniary damages the determination of which by definition requires estimation and hence by nature cannot be precise.  Accordingly, it is possible to determine the compensation for non-pecuniary damage by way of estimation alone and then to multiply it by the number of members in the group, which can similarly be determined on the basis of estimation, or the global payment can be determined by way of estimation. The Court mentioned that at all events, the unavoidable reality of it being an estimate need not negate the granting of a remedy in the group’s benefit. The Court did not ignore the fact that section 20 (a)(3) of the Law states that the court may award an overall pecuniary compensation that will be divided between the members of the group, provided that it admitted of “precise calculation” but it deemed that this term should be interpreted in accordance with the purpose of the law and the section.  The Court further mentioned that this term is missing from section 20 (c ) of the Law, which deals with a remedy for the benefit of a group or the public and that s. 20 (e) of the Law stressed that the demand for the proof of damage would not prevent compensation for non-pecuniary damage. The Court further mentioned that occasionally the practical goal of the legal process requires that compensation be awarded in accordance with a uniform criterion even if it is clear that there are differences between the various plaintiffs, and this is the case at hand. The Court addressed the consumers survey that was presented and ruled that it proved the damage relating to the negative feelings in accordance with the degree of certainty required in a civil proceeding, especially having consideration for the fact that it only concerned the criterion or calculating the global compensation that could be determined on the basis of an evaluation. Similarly, the Court noted that in the decision pertaining to application for confirmation of the suit as a class action, the Supreme Court assumed that there was no escaping the award of compensation for the benefit of the group, and it further mentioned that Tnuva’s claims in the respect undermine the decision to approve the suit as a class action. The Court further rejected Tnuva’s alternative claim to the effect that at the very most it was possible to base the compensation on “wrongful profit” that it gained by reason of the acts forming the subject of the suit. The Court likewise rejected Tnuva’s claim that at the end of the day it had only incurred losses by reason of the affair and as such it had no wrongfully gained profits. The additional claim raised by Tnuva as an alternative claim, argued that the profit made reached amounted to NIS 350,000 only and it was likewise rejected by the Court

Regarding the determination of the damage, the Court stressed that in its claim sheets Tnuva did not refer to section 20 (d)(2) of the Class Actions Claim which authorized the court to have consideration for the damage liable to be caused to the defendant or to the public requiring its services due to the payment of the compensation.  All the same, and even though no claims or explicit data was presented to it regarding this matter, the Court ruled that the evidential material indicated that the compensation would not impair the ongoing activity of Tnuva or jeopardize its economic stability and that at the very most, the compensation would have a negative effect on its profits in the near future. The Court similarly emphasized that in order to achieve the aims that are at basis of the class action, the remedy for the plaintiff groups must be efficient and substantive.    

13.  For all of the reasons mentioned, the Court decided on a monetary remedy in favor of the group, by force of s. 20 (c) of the Class Actions Law, to be calculated on the basis of an identical sum for each member of the group. The Court further ruled that awarding compensation for the sum of NIS 8000 for each member of the group, as requested by the representative plaintiffs, was perhaps appropriate for a personal claim, but in this particular class action would have meant a monetary remedy amounting to an overall sum of NIS 1.76 billion, which is unreasonable. Having consideration for the entirety of the data, the Court ruled that Tnuva should pay a global sum of NIS 55 million, which reflects personal damage at the sum of NIS 250 for each member of the group (NIS 250 X 220,000), while pointing out that this sum, and even in excess thereof, was most definitely suffered by each members of the group, even if only by reason of the breach of individual autonomy.

The Court further determined that the sole practical remedy was the remedy in favor of the group, which should be divided in accordance with three objectives:

       (1)        Awarding a benefit to the members of the group by  reducing the price of the product (or increasing its contents without raising the price). The Court noted the difficulties involved in the realization of this remedy, noting that its certification would require an economic expert opinion, the certification of the Director of Antitrust and the position of the Attorney General, and supervision of its execution by force of s. 20 (f) of the Law;

2. Transfer of  part of the compensation sum to a research and scholarship fund in the field of food and nutrition which have implications for public health
3. Distribution of milk free of charge to populations in need via non-profit organizations so involved.

The Court further ruled that “the allocation of the sum between the three approved objectives will be determined after it becomes possible to confirm the discount from the price, in accordance with the conditions determined, and after an allocation plan is filed for the two other objectives”, and it noted that it could be expected that the parties would reach agreement concerning the manner of allocation of the sum of compensation in accordance with the above, so that the Court would not be compelled to enforce a settlement upon them.

Regarding the compensation for the representative plaintiffs and the legal fees for their attorney, the Court noted that the application for a legal fees award for the sum of NIS 400 million is unreasonable and unfounded. It further ruled that at that stage the compensation and legal fees should not awarded given that the final conclusions had yet to be drawn regarding the manner of allocating the overall sum of compensation, but after having considered the criteria for the determination of the rate of  legal fees and compensation, the Court ordered the payment of an intermediate sum “against the account of the final sums” as follows: compensation to Raabi's heirs for the sum of NIS 150,000; compensation to the Consumers Council for the sum of NIS 250,000; legal fees for the sum of NIS 500,000; and court expenses for the sum of NIS 100,000.

Tnuva rejected the partial decision of the trial court and appealed against it in this Court (CA 10085/08; hereinafter – the Tnuva appeal); the representative plaintiffs on their part filed a counter appeal against the decision (hereinafter: the appeal of the representative plaintiffs) but before the hearing of these appeals, the District Court gave a supplementary decision

The Supplementary Decision of the District Court –

The Final Compensation and Legal Fees Awarded and the Manner of Allocating the Compensation

14.  In the supplementary decision of 17 June 2009, the District Court gave effect to the agreements reached by the parties, with the cooperation and the agreement of the Attorney General. The agreements were as follows: (a) The allocation between the three objectives would be – the discounts arrangement 22%, the research and scholarship fund 33.33%, and the distribution of milk products to the needy 44.6%; (b) the distribution of milk products (not only the long lasting milk forming the subject of the suit) would be over a period of five years, beginning as of the commencement of fulfillment of the decision, via a NPO known as "Latet" ["To give" – Trans.] and Mishulhan leShulhan  ["From One Table to another Table" – Trans.]; (c )For purposes of transferring the compensation for research purposes in the field of food and nutrition, a research fund would be established, headed by the Chief Scientist of the Ministry of Health. The management of the fund (whose members are stipulated in the agreement) will select the research programs that will be entitled to the scholarships and supervise them. The sum of the compensation will be utilized over a period of five years, unless the need arises to continue to use the sum thereafter as well; (d) the particulars of the discounts arrangement will be formulated following the decision on the appeal filed against the partial decision and will be based on the existing data at that time and will apply to all categories of long lasting milk (1% to 3% fat)  and will be completed within five years from the commencement of execution. This arrangement merited the certification of the Director of Antitrust but the Court noted that there might be a need to return to the Court in the event of a significant time period passing until the beginning of its execution. The Court further mentioned that should the parties fail to agree on the details of the discounts arrangements, it would appoint an expert to determine its details. The Court further added that the execution of the partial decision in accordance with the agreements specified would be delayed until  a decision was given on the appeal that was filed against it.

Regarding the final compensation and legal fees the Court ruled that the interim sums determined in the decision were to be supplemented by the following sums: Raabi’s heirs would receive compensation for the sum of NIS 350,000; the Consumer Council would receive compensation for the sum of NIS 750,000; the attorneys of the representative plaintiffs would receive the sum of NIS 2,000,000 and regarding this the parties agreed that the compensation would be paid within thirty days of handing down the supplementary decision, as well as 60% of the fees that was to be awarded and that payment of the balance would be postponed until after the decision on the appeal. Finally, the Court ruled that an advertisement should be published in the three main newspapers, including the central elements of the decision.

The parties have also challenged the supplementary decision before us.  The representative plaintiffs on their part appealed this decision ( CA 6339/09) and Tnuva too  has requested our intervention (CA 7607/09). The parties' claims in the appeals against the partial decision and the supplementary decision (which will hereinafter be jointly referred to as “the decision” were filed together). 

Tnuva’s Claims

15. Tnuva claims that the Lower Court's decision should be overturned, and alternatively that the sum of compensation ruled against it should be significantly reduced. They claimed that the District Court had aimed at accepting the class action and had avoided the accepted procedural rules. Tnuva further argues that from the decision it emerges that the basic principles of tort law do not apply to consumer class actions for non-pecuniary damage, and that this unlawfully defies the parameters of the Class Actions law contrary to its language, its guiding principles and in defiance of the law determined in the further hearing in the matter of Barazni [2] . Tnuva claimed that the Lower Court actually cancelled the requirement for a causal connection between the misleading and the damage, and emphasizes that in the decision in the matter of Daaka [4] the infringement of the autonomy stemmed from the urgency of the information and its centrality in the individual decision making process. It follows that when the information does not influence the individual decision making process there is no basis for awarding him compensation. Alternatively Tnuva claims that if the  Daaka  [4]  decision is interpreted as a decision that which abandons the requirement of the causal connection, it should be restricted to its specific context and the exceptional circumstances in that case that pertained to the infringement of  informed consent to medical treatment, and it claimed that a deviation from the classical rules of tort is not justified in the context of the tort consumer deception and deviates from the Supreme Court’s decision in the Barazani Further Hearing [3]  Here, Tnuva refers to the Court’s decision to the effect that for purposes of compensation under the tort head of infringement of autonomy, there is no requirement for an examination of the personal particulars of each victim, and the conclusion is that the victim himself does not constitute a factor in the calculating formula

Tnuva further claims that the representative plaintiffs did not prove that they incurred any damage as a result of its acts and that in fact, the damage was caused as a result of media publications and not as a result of the negating of their choice in purchasing milk. Tnuva further claims that  the Court erred in its estimation of the  sum of compensation in a uniform manner for all members of the group, notwithstanding the differentiation in the sum of compensation that the members of the group are prima facie entitled to based on their personal particulars. Its claim, which it seeks to anchor in the Israeli and American case law, is that non-pecuniary damages are by definition individual and cannot be assessed in a uniform manner, and that they include the damage caused by infringement of autonomy which likewise is individual-subjective. Furthermore, Tnuva claims that in the case at hand compensation for the group and the public should not have been awarded and that at all event there was no basis for calculating the overall damage based on a simple multiple of the number of members in the group by the rate of personal damage. Tnuva also claims that the sum assessed by the Court as representing the damage from which each member of the plaintiffs group suffered  - NIS 250 – is an arbitrary sum that was determined without any supporting evidence and without giving any substantive reasons for the manner of its determination.  In addition, Tnuva points out that in awarding a uniform damage the Court failed to distinguish between the members of the group, who according to its own determination had suffered from negative feelings as a result of the consumption of the milk, and those who did not suffer these feelings; nor did it distinguish between those for whom the fact of the addition of the silicon would have influenced the decision to consume the milk and those for whom it would not have influenced is consumer conduct.

16.  Tnuva also claims that the overall compensation awarded by the Court is exaggerated and unprecedented and it stressed that its entire profits from the sale of milk during the relevant period stood at  NIS 3.4 million. The claim was that the Court actually awarded penal compensation as attested to by the “penal” terminology that is used in the decision, even though this has not place in the framework of a class action, in accordance with the provisions of section 20 (e) of the Law.

Tnuva found an outstanding example of this in the Court’s rulings regarding the health hazard in the consumption of food containing silicon and argued that the sole purpose of the discussion of the matter was to clarify to the reader exactly “why Tnuva is deserving of a punishment”. Tnuva claims that in this matter the Court handed down contradictory decisions as well as decisions that contradict that which was stated in the decision relating to the certification application. It further argues that the trial court avoided the exercise of its authority to rule on the veracity of the claims of the representative plaintiffs, and that it imposed a “featherweight” evidentiary because it contented itself with the existence of a few studies (which were presented to it incidentally), without ruling on their veracity, and without having been presented with a detailed expert opinion on the matter. Tnuva emphasized that the official standard prohibited the addition of any substance to the milk (apart from Vitamin A or D  in particular circumstances) and did not relate specifically to the addition of silicon. Similarly, Tnuva claimed that the official force of the standard had already expired in 1998 and that it was no longer binding upon milk producers, and that in other standards it had been permitted to add silicon to food products, even to such as are consumed by infants, in quantities similar to those that it added to the long standing milk and in dimensions in excess of those involved in the case at hand. Tnuva further added that the trial court’s determination that the health hazard could be inferred from the very violation of the standard was unfounded and was actually in contravention of the provision of s. 17C (a) of the Standards Law. Tnuva further argued that the absence of a health hazard from the consumption of silicon may be inferred from the Danon Committee Report and the holdings of the court in the criminal proceeding conducted against it. At all events, its approach was that even given a determination of the possibility of a health hazard, this would not constitute sufficient basis for a ruling of compensation, because compensation cannot be ruled  based on a possibility, not proven, of negative feelings being caused by a theoretical risk to health.  In this context Tnuva added that the Court’s determination to the effect that milk is a “natural and pure” product cannot stand, because the consumer conception is that milk is a processed product that contains different food supplements and only a minority of consumers are of the opinion that was presented by the Lower Court.  Tnuva also dwelt on the discrepancy between the compensation awarded in the case at hand and the compensation ruled in other class actions.

17.  Tnuva further claimed that s. 20 (c ) of the Class Actions Law establishes  compensation for cases in which there is  no possibility of determining or locating the members of the plaintiff group, and hence the Lower Court erred when determining that the section applies when it is not possible to determine the sum of the damage.  Tnuva stresses that the section was not intended to “supersede” the regular rules of evidence and to enable an arbitrary determination of the amount of scope of the damage and sums of compensation. Furthermore, Tnuva argues that the Lower Court erred in determining that the compensation mechanism of s. 20 (a)(c) of the Law differed from that of s. 20 (c) of the Law, claiming that compensation under s.20( c) was also subject to the requirement of “precise calculation” prescribed in s. 20 (a)(c ) of the Law.  Accordingly, compensation for the public benefit or for the benefit of a particular group can only be awarded when personal compensation would not be practical were the requirement of “precise calculation” to be complied with.  Tnuva submitted that insofar as the case at hand does not admit of accurate calculation of the damage or even estimation based on “stable” statistical data, the Court had no choice other than to reject the suit. Tnuva further added that in the U.S.A., when there is no possibility of accurately calculating the damage to a group or where the damage is non-pecuniary, the Court does not approve the filing of a class action.

Alternatively, Tnuva claims that even if the case at hand warrants the ruling of compensation for the benefit of the group’s members, it should not have been assessed in the manner adopted by the Lower Court.  Its argument was that since the damage caused to each member of the group cannot be determined it is not correct to arbitrarily determine the compensation based on multiplying any particular sum of damage by the number of members in the group. Rather, it should be based on the "wrongful profit" that it accumulated.  Tnuva claims that compensation based on calculation of profit overcomes the difficulties in the case before us: it would  reflect the consequences of the event that gave rise to the suit; it would prevent the difficulty of assessing non-pecuniary damage and the unified "pricing" of the negative feelings, despite the differences between the members of the group. It will also prevent the difficulty of assessing damages in accordance with unsubstantiated surveys. According to Tnuva, the profit it gained from the execution of the wrong is NIS 1,645,900 in the terms of the principal, and with the addition of the interest and linkage differentials (from the middle of the period) it  comes out to NIS 4,981,616.  Alternatively, Tnuva claims that the compensation should be calculated based on the sum saved by using the silicon to solve the problem of frothing, which comes out to  USA$400,000 (which with the addition of linkage differentials and interests comes out to NIS4, 346,991). It was claimed that this sum can be supplemented by a reasonable deterrent factor. In addition, Tnuva claims that even if it be determined that the number of members of the group should be multiplied by any particular sum of damage, certain substantive defects in the method of evaluation  conducted by the Lower Court must still be remedied. Its claim was that this multiplication should only include consumers who suffer from substantive negative feelings due to the consumption of milk and it should not include feelings related to "positions or viewpoints" which they hold as a result of the Tnuva's conduct (such as temerity and contempt).  Tnuva's position is that based on the data presented in the court, consumers who answer that definition constitute about 15% of the members of the group defined by the District Court. Tnuva also maintains that the number of members in the group should be fixed at 166,000 (the minimal threshold determined in Ophir's expert opinion) and alternatively at 200,000 (allegedly claimed by Ophir in his testimony.

18.  Tnuva further claims that the sum awarded by the Lower Court for remuneration and legal fees is excessively high, emphasizing that it constitutes 7% of the total sum of compensation. In addition, it claims that this sum deviates from the  guiding criterion for such matters, prescribed in the Law (ss. 22 and 23 of the Law)  and in settled case-law. Regarding the Israeli Consumer Council Tnuva argues that the former did not invest significant work, nor did it assume any risk; that it is a budgeted statutory body and not a private person who requires incentives; that the Consumer Council did not initiate the proceeding and joined it at a relatively late stage; and finally, that its degree of involvement was minimal and negligible. Regarding the legal fees of the representative plaintiff's attorneys, Tnuva claims that the fee is unprecedented, that has no consideration for the manner in which the suit was handled and the discrepancy between the remedies that were requested and those that were ultimately awarded, and adds that the sums awarded by the  Lower Court are liable to pave the way towards abuse of the tool of the class action.

Claims of the Representative Plaintiffs

19.  In the counter appeal, the representative plaintiffs claim that  given the Court's holding that the sum of NIS 8000 for each consumer is appropriate for a personal claim, there is no justification for reducing it to NIS 250 just because the context is that  of a class action. They stressed that Tnuva too did not claim that the defense under s. 20 (d)(2) of the Class Actions Law was applicable to this case.  The representative plaintiffs further claim that the reduction of the compensation empties the class action proceeding of its contents and is inconsistent with the Court's determinations to the effect that grave damage was caused, justifying commensurate compensation. The representative plaintiffs add that increasing the compensation sum will not harm the public, inter alia having consideration for the sales data and profits of Tnuva, and they complain that the group of those represented was significantly reduced, to include only those who purchased the milk regularly, whereas it should also have included incidental purchasers.  They add that the sole reason for the reduction of the group was that Tnuva provided partial information to the court expert who was appointed for purposes of assessing the size of the group.

The representative plaintiffs further claim that Tnuva's pleadings ignore the decision given on the certification application, in an attempt to revisit an already settled matter. Regarding Tnuva's claims concerning the health risks posed by the milk, the representative plaintiffs claim that the Lower Court ruled on this matter in the wake of Tnuva's request to present evidence on the matter and that the findings themselves were over and above what was required. According to the representative plaintiffs, the very prohibition on the addition of silicon to the milk in an official, binding standard (published as a regulation of legislative effect) and its breach, combine to establish the grounds for claim in the framework of the suit. In addition, there was proof of the grounds for action under the Consumer Protection Law (also having consideration for the provisions of the Standards Law). It was proven that silicon posed a potential health hazard, and it was proven that Silicon was aware of the problem and of the defect involved in the addition of silicon to the milk. In this context the representative plaintiffs stress that when Tnuva purchased the silicon from the Amgal company, it made a representation that it was purchasing it as a cleaning material and they also stress that silicon was added to the milk at a rate that was ten times higher than the level permitted under the provisions of the silicon producer for purposes of using silicon in food (they claim that the silicon was added at a rate of one liter per 10000 liters of milk, whereas according to the manufacturer’s instructions it is permitted to add it at the rate of a “ten parts for a million”). The representative plaintiffs further claim that both in relation to Raabi and in relation to the group as a whole, damages had been proved with respect to infringement of autonomy and negative feelings relating to the consumption of milk. The representative plaintiffs stress that in this context it was proved that had the consumers been aware of the existence of silicon in the milk they would not have purchased it, and this is by virtue of both the importance of the official standard and the fact that its breach renders the product “worthless at best”. The representative plaintiffs also add that there are likewise no grounds for interfering with the findings of the Court regarding the occurrence of damage and the gravity of Tnuva’s acts in view of the positive impression made by the witnesses and the experts on behalf of the court. They also stress that the autonomy of the individual is a constitutional right, and hence its infringement should merit commensurate compensation, and they claim that this does not constitute an award of punitive compensation.

The representative plaintiffs add that there are no grounds for interfering with the Lower Court ’s holding that the damage caused as a result of the infringement of autonomy is an inherent element of the tortuous conduct, and that this is also the conclusion from the Daaka [ 4 ] ruling. In addition, they claim that in the present case it is appropriate to award uniform compensation based on an assessment stating that inasmuch as the right to autonomy is a constitutional right, it is an identical right for each member of the group, and that the provisions of the Class Actions Law enable a cumulative calculation of the damage incurred by all the members of the group. They further add that the damage caused in this case is essentially given to assessment by way of estimation; that the arrangements in the Law enable the proof of damage in a manner that is not particularistic and individually based but rather general and all inclusive and that the tendency in case law is consistent with the need to award uniform and equal compensation to all of the plaintiffs as such. The representative plaintiffs stress that this result does not contradict the ruling given in the Barazani Further Hearing [3] and they add that as opposed to Tnuva’s argument, the FCR mechanism does not negate awarding compensation in cases of this kind, indicating that in certain cases American case law awarded “average compensation” multiplied by the estimated number of members in the group. They further state that the FCR mechanism is essentially intended for the distribution of overall compensation, and that the current criticism of this mechanism pertains to the question of distribution of compensation to a group or the public and not to the manner of evaluation of the compensation in accordance therewith.  

20.  The representative plaintiffs further request to dismiss Tnuva’s argument for reducing the sum of compensation owing to them, emphasizing that the compensation  awarded to them constituted a mere  2.5% of the sum ruled in favor of the group as a whole. The attorneys for the representative plaintiffs argue that in fact the Court “punished” them for the discrepancy between the sum ruled in favor of the group (which was unjustifiably reduced) and the remedy which they petitioned for in the name of their principals. Their argument is that in this context the Court mistakenly applied the provision of s. 23 (b) (5) (which provides that in ruling attorneys fees the court may have consideration for the discrepancy between the remedy sued for and the remedy actually awarded), and that it failed to consider all the relevant factors  The attorneys for the representative plaintiffs claimed that they had done a significant amount of work, directing attention to the novel claims that they raised in the proceeding, and they challenged the Lower Court ’s determination that part of the proceeding had not been properly conducted, pointing out that all of their objections had been relevant.

The Class Action and the Consumer Protection Laws -  Meeting of Principles

21.The class action is a special procedural tool for the effective and efficient promotion of principles, values and substantive legal rights. This legal institution is currently regulated in the Class Actions Law which is a comprehensive and detailed framework law that established standard rules for the filing and conducting of class actions. The Law was enacted in 2006 after this Court called upon the legislator to regulate the institution of a class action in a comprehensive statutory arrangement (see LCA 3126/00 State of Israel v. E.S.T. Project Management and Manpower Ltd [5]; FHC 5161/03  E.S.T  Project Management and Manpower Ltd v. State of Israel [6],  but the importance of the class action had been recognized in Israel many years before the enactment of the Class Actions Law. Thus, a series of laws and “local” arrangements relating to the filing and conduct of class actions was already in place, most of which were incorporated as chapters in those laws during the nineties of the previous century. They included provisions that are essentially similar to  the criteria and conditions the fulfillment of which enables the filing of a class action in that particular realm. See Chapter F’1 of the Restrictive Trade Practices Law,  5748-1988 (hereinafter – the Restrictive Trade Practices Law); Chapter F’1 of the Banking  (Service for Customer) Law, 5741-1981 (hereinafter – the Banking Law); ss. 19 (54)   - 19 (64) of the Equal Rights for Disabled Persons Law, 5758 – 1998; s. 11 of the Male and Female Workers Equal Pay Law 5756- 1996. All of these specific arrangements were repealed with the enactment of the Class Actions Law (see ss. 32 – 35, 38 – 40, and 42 of the Class Actions Law) and even before its enactment, the E.S.T [6] decision negated the possibility of basing a class action on Regulation 29 of the Civil Procedure Regulations, 5744-1984, which until that time had served as a normative source and a procedural framework for the filing of class actions in areas lacking a specific statutory arrangement as mentioned above.

This  importance of the class action was discussed by this Court both before and after the enactment of the Class Actions Law in a series of decisions that address its advantages as a legal tool for enabling the realization of the right to file a personal claim in cases where the filing of a claim was not profitable or not feasible for the individual. In addition, this Court’s case-law has dwelt upon the importance of the class action in the promotion of public interest as a legal tool that assists in the efficient enforcement of the law and deters financial magnates who rely on the passivity of the individual, abuse their power, and harm unincorporated groups such as consumers or investors in securities. An additional element of importance of the class action considered in the case-law is that this procedure prevents the multiplicity of suites and hence saves judicial resources, and from this perspective too, the institution of class actions makes its contribution from a public interest perspective (for the definition of the objectives and goals of the Class Action, see s.1 of the Class Actions Act; on this matter see also: CA. 8430/99 Analyst I.M.S. Trust Funds Management (1986) v. Ard Industrial Investment and Development, [7] at p. 256; 8 LCA 4556/94 Tetzet v. Zilbershatz, pp. 783-785 [8]; CA 345/03 Reichart v. Raabi Moshe Shemesh Heirs, paras. 8 – 9 of opinion of the President Beinisch [9]; Sinai Deutch “A Decade for the Class Action  Suit – Interim Summary and Looking to the Future  Shaarie Mishpat 4, 9, 21- 24 (5765) (hereinafter – Deutch -  Decade for the Class Action); Steven Goldstein and Talia Fisher “Interaction Between Mass Actions and Class Action:  Procedural Aspects”  Mishpatim 34, 21, 24- 26 (5764) (hereinafter – Goldstein and Fisher)).

Along with the inherent advantages of the class action it should be remembered that incorrect use of this tool involves not insignificant dangers (see Analyst  [7], at p 256; Tetzet [8], FHC E.S.T [6] at p. 785 [6] at p. 237; Alon Klement “The Boundaries of the Class Action in Mass Tort”,  Mishpatim 34, 301, 325- 331 (5764) (hereinafter – Klement, Boundaries of the  Class Action)). The laws of class action and their judicial supervision are thus intended to maintain an appropriate balance between the risks and chances of the proceeding and to ensure  that it realizes the legal, economic and social goals for the promotion of which it was established (see CA 3506/09 Zaig v. Waxelman, Waxelman Accountants [10] paras. 7 – 8 ; and Tetzet [ 8] at pp. 785 – 786).

22.  One of the outstanding areas in which the advantages of the class action are demonstrated is the laws of consumer protection. Israeli legislation contains a large series of legislative acts intended for consumer protection. The central law in this context is the Consumer Protection Law, enacted in 1981. This law includes detailed provisions concerning the duties and prohibitions applicable to dealers, in other words, to manufacturers, importers, tradesmen  and providers of services, with the aim of subjecting the business sector to a regime of appropriate conventions of behavior, to establish fair game rules in dealer-consumer relations, and to prevent the misleading of consumers with regard to an asset or service that he consumes (on the goals of the Consumer Protection Law - see Sinai Deutch, Consumer Protection Law 120 – 126 (Vol. A. 2001); Explanatory Note for the Draft Bill (Hatza’ot Hok 1469, 302- 303, 5740).  Other laws intended for a similar purpose are for example, the Banking Law (Service to Customers), Supervision of Financial Services (Insurance) Law, 5741-1981 and the Restrictive Trade Practices Law. These laws and additional laws admitting of classification in the category of consumer protection law regulate various aspects of this protection and are intended to prevent unjust enrichment on the part of large financial concerns or on the part of State authorities, at the expense of the individual.  

The point of departure for consumer protection law is the structural imbalance that characterizes the consumer transaction when struck between a financial body, occasionally a large and multi-tentacled company, or even a retail trader and the individual consumer (assuming that he lacks the size advantage of organized consumption).  The legislator accordingly pinpointed this population sector as requiring intensified legislative protection to ensure that the dealer, having the advantages of knowledge and economic ability, does not misuse these advantages for reaping quick profits at the consumer’s expense, while deceiving him in essential matters affecting the nature of the transaction.  For example, the Consumer Protection Law seeks to ensure that when entering into a transaction the consumer has full and fair information concerning the nature and the details of the transaction, the assumption being that this will enable the consumer to plan his actions and enter into a transaction that is optimal and desirable from his perspective. Additional prohibitions in the Consumer Protection Law concern the exploitation of the consumer’s distress, exploitation of his physical or mental weakness, or his ignorance of the language, and the prohibition of exerting undue influence upon him (see CA 3613 Ezov v Jerusalem Municipality [11 ], at p. 801; LCA 8733/96 Langbert v. State of Israel – Israel Lands Administration [12], pp. 175- 176 (hereinafter – Langbert); Sinai Deutch “Consumer Class Actions: The Requirement for Personal Reliance on the Misrepresentation of the Deceiver” Nethanya Law Review 2, 97, 110 – 114 (5762) (hereinafter – Deutch, The Requirement for Personal Reliance). Apart from the importance of the consumer protection laws in redressing the imbalance of power between the dealer and the consumer and strengthening the consumer’s personal autonomy, these laws are also important in realizing public interest of inestimable importance such as: the notion of consumer sovereignty; protection of the right to welfare and social rights, promotion of the principle of fairness in trade, protection of the reliability of the local market, and maintaining trust in the social order and the provisions of the law.

23.  Having synoptically outlined the underlying objectives and goals of consumer protection law, and the objectives and goals of the class action as a legal procedural institution, we can easily identify the “meeting of principles” between the goals intended to be promoted by the class action tool and the values and rights that these laws seek to protect. Hence, the class action can overcome both the inbuilt balance of power between the dealers – those with the economic advantage - and the consumers, and the lack of profitability that frequently accompanies the filing of a claim by the isolated consumer, given the relatively small amount of damages he has incurred (See Barazani [2]; Deutch - The Requirement for Personal Reliance, 115. Regarding the systems for civil enforcement in the area of consumer protection, see Moshe Bar-Niv (Bornovski)).

Indeed, the tool of the class action is actually one of the most significant measures placed by the legislature at the consumer’s disposal for the enforcement of his rights under the laws of consumer protection (see Deutch – a Decade for the Class Action, 18 – 20 according to which most of the class actions filed in Israel are “consumer actions” by force of the various consumer laws.  On the other hand, the implementation of the provisions pertaining to consumer class actions has also been criticized. See Deutch “Consumer Class Actions – Difficulties and Proposed Solutions” Bar Ilan Law Studies 20,  299 (2004); see also CC (Center) 5567-06-08 (Nazareth) Bar v. Ateret Industries 1996 Ltd, para. 39  [  ] where the court observed that in many of the cases it would have been preferable had the consumer deception been handled in an alternate framework, such as the imposition of punitive compensation rather than as a class action proceeding). As mentioned, the provisions for filing a class action under the Consumer Protection Law used to be included in Chapter F’1 of that law, along with additional enforcement measures included therein, inter alia - the administrative mechanism in the charge of the Commissioner of Consumer Protection, and the Consumer Protection Authority, and the criminal system which purported to enforce the norms established by this law via the criminal law  With the enactment in 2006 of the Class Actions Law and the establishment of a comprehensive framework arrangement for the filing and conduct of class actions, came the revocation inter alia of Chapter F’1 of the Consumer Protection Law, so that as of today, as mentioned, the provisions of the Class Actions Law govern the filing and the conduct of class actions in all areas, including in the areas of consumer protection (see s. 3 of the Class Actions Law, and item 1 of the Second Schedule of the Law). 

Tnuva’s Act of Misleading

24.  The proceeding before us began with an application for the certification of a class action, filed in 1995 in reliance on the provisions of Chapter F’1 of the Consumer Protection Law. As described above in the chapter on the facts, already in 1996 the District Court approved the filing of Raabi’s personal claim as a class action, and Tnuva’s appeal against the certification decision was rejected by this Court in the year 2003 (CA 1338/97). The proceedings for the certification of the class action were similarly handled in accordance with the provisions of Chapter F’1 of the Consumer Protection Law then in force.  However, after the District Court began hearing the approved class action, the Class Actions Law was enacted, and as indicated by the decision of the Lower Court, its provisions provided the basis for the decision on various issues, including the provisions pertaining to the compensation and fees. The application of these provisions to our proceeding was correct, given the provision of s. 45 (b) of the Class Actions Law, which determines that the provisions of the Law (apart from the provision of s. 44) “shall also apply to application for a  certification of a class action and a class action that was pending before the court on the date of publication of this law” (see CA 7028/00 A.B.A. Trust Funds Management Ltd v. Elsynth Ltd [13] paras 16-18 ; HCJ 2171/06 Cohen v. Knesset Speaker [14] para. 46.  The Lower Court further added, and rightly so, that even though the Class Actions Law did not limit the grounds for a class action exclusively to the “consumer”, as defined in the Consumer Protection Law, the class action in this case should be adjudicated in accordance with the original grounds that were based on the Consumer Protection Law  and in relation to a consumer group answering the definition of “consumer” in that law (“one who purchases an asset…..primarily for his personal, domestic or family use”, given that the representative plaintiffs did not apply to amend the claim  and file additional evidence in the  wake of the new law, that broadened the circle of potential plaintiffs in this context (and see Alon Klement “Guidelines for the Interpretation of the Class Actions Law, 5766-2006), Hapraklit 49, 1354-135 (5767) (hereinafter – Klement).

25.    In the class action before us it is claimed that Tnuva violated the prohibition on misleading  established in s.2 of the Consumer Protection Law, which provides that

A dealer shall do nothing—by an act or an omission, in writing, by word of mouth or in any other manner—likely to mislead a consumer as to any matter material to a transaction (any such act or omission hereinafter referred to as a “misleading act”…)

The thrust of the misleading act ascribed to Tnuva is that Tnuva added silicon to low fat (1%) long lasting milk without this ingredient being mentioned on the packaging and in defiance of the official and binding standard in force at that time, and in so doing mislead the members of the group, consumers of long lasting milk regarding a “material aspect of the transaction” pertaining to the “the quality, nature, quantity and type of any commodity or service” (s. 2 (a) (4);  and “the conformity of the commodity or service to a standard, specification or model” (s. 2 (a)(11).

It was further claimed that Tnuva breached the duty of disclosure imposed on it as a dealer, pursuant to s. 4 (a) of the Consumer Protection Law, to disclose to the consumer, inter alia:

(1) any defect or qualitative inferiority or other feature known to him that materially diminishes the value of the commodity;

   Likewise it was claimed that Tnuva had breached the obligation of indication  as prescribed in section 17 of the Consumer Protection Law, which likewise expresses the broad duty of disclosure imposed on the dealer and which provides  inter alia that:

A dealer shall indicate the following particulars upon, or upon a thing attached to, goods intended for the consumer:

                          ------

(a)  the quantity of the commodity and a detailed statement of the basic materials of which it consists.

The prohibition on misleading and the duty of disclosure and indication imposed on dealers in accordance with the Consumer Protection Law, were intended to realize one of the Law’s central underlying goals, namely providing all of the information required by the consumer in order to enter into an intelligent engagement that gives true expression to the principle of the freedom of contractual engagement (see Langbert  [12], p. 175 – 176).

26.              The Lower Court accepted the claims of the representative plaintiffs, and in its decision ruled that the Tnuva had committed an act of misleading that was prohibited under the Consumer Protection Law and had breached its statutory duties of disclosure by adding silicon to the milk without disclosing that fact to the consumers and without disclosing that the addition of silicon as stated contravenes Standard No. 284 of the Israeli Standards Institution, which at that time was the official and binding standard for purposes of “cow’s milk for drinking” (hereinafter: “the standard).

Evidently,  at this stage of the hearing of the appeal, Tnuva no longer contests the fact that it mislead its consumers. Indeed, in the summations filed on its behalf in the appeal it confirms that it “mislead the consumers by way of omission in its failure to indicate on the packaging of the long standing milk that a froth preventing food supplement was added, bearing the trade name “E-900” (section 2.1 of Tnuva’s summations).  Similarly, it would seem that there can be no doubt regarding the consumer’s right to be aware of the ingredients of the product that consumes . This right is the basis of the duties of disclosure and indication imposed on the dealer in this context, which we addressed above, and it may be asserted that these duties become doubly important when considering that the issue concerns milk which is a basic food product consumed by numerous consumers.

As mentioned, one of the substantive matters to which the prohibition of misleading applies under the Consumer Protection  Law is the “conformity of the asset or service to the standard, specification or model” (s. 2 (a)(11)). In our case Tnuva contravened the prohibition in this sense too because the definition in  s. 105 of the standard enumerates the materials that can be added to the various milk products and silicon is not included among these products.  Our concern is with a standard  that was declared as the Official Standard on 13 October. 1987 (O.G. 3473, 2274). As such Tnuva is bound by s. 9 (a) of the Standards Law, which prohibits the production and the sale of a milk product that does not comply with the requirements of the standard (for an analysis of the grounds for declaration of a standard as official and the duties established by the standards (see Eliyahu Hadar, Behind the Standards Law, 56- 92 (1997)), and accordingly Tnuva mislead its consumers with respect to the product’s conformity to the standard (see also s. 107.5 of the standard, which establishes that the supplements – if added -  must be indicated, and see Official Standard No. 1145 regarding the “Indication of Prepackaged food”).  Parenthetically, it bears note that nonetheless, in 1998 the declaration concerning the official status of some of the sections, including s. 105, was cancelled, and today they have the status of recommendations only (see Notification of Expired Validity of Standards (Food Standards) as Official Standards, O.G. 4649, 5759, 334, 336). Tnuva argues this issue is also of substantive significance for purposes of this proceeding too, and this claim will be discussed below. 

27.  As mentioned, Tnuva no longer disputes the fact that its acts are tainted by having been misleading within the meaning of the Consumer Protection Law and by its violation of the disclosure duties imposed on it by force of that Law. Nonetheless, Tnuva maintains that the Lower Court erred in ruling that it must compensate the group members for the non-pecuniary damage allegedly caused to them under the circumstances. The thrust of Tnuva’s claims as dwelt upon above, is that the act of misleading did not cause any real and compensable damage to any of the group members , and that even if thy incurred real damage,  the causal connection between the alleged damage and the act of misleading was not proved. At all events, Tnuva further added that the Court erred in holding that compensation must also be awarded under the head of infringement of autonomy to group members in respect of whom it was not proved that they had experienced negative feelings due to their consumption of milk containing silicon.

Misleading a Consumer as a Wrong in Tort in  the Representative Context

28.  The legal field in which the consequences of the Tnuva’s actions must be examined in this case is the field of Tort, referred to by s.31 (a) of the Consumer Protection Law, which instructs us that:

“Any act or omission in contravention of Chapters Two, Three or Four shall be treated as a civil wrong under the Civil Wrongs Ordinance (New Version)”

Our concern is with a consumer tort rooted in the Consumer Protection Law, but the body and head of which are formulated in accordance with the basic principles and doctrines of Tort Law.  In other words, to merit a pecuniary remedy based on a consumer tort the plaintiff must prove damage and demonstrate the causal connection between his tortuous conduct and the alleged damage. This applies both to an individual suit relying on a Consumer Protection Law and to a class action relying on that kind of tort (see comments of Justice (former title) M. Cheshin in Barazani Further Hearing [3]. Still, it bears note that to the extent that our concern is with a class action, the court’s application of Tort Law must also be based on the specific principles and rules drawn from the specific field of class actions, which occasionally pose practical problems relating to the location of the members of the group and awarding compensation to each one of them, as well as difficulties in proving the causal connection and proving the damage caused to each one of the group members. There may also be cases in which had a single plaintiff filed a monetary suit by reason of a consumer tort his suit would have been rejected by reason of the negligibility of the remedy – being in the category of des minimis, which does not justify compensation under the general law of Tort (see s. 4 of the Tort Ordinance). On the other hand, when concerned with a consumer tort committed against an entire group of consumers and not just against the single plaintiff, the court will be required to take a different perspective of the remedy requested in the name of the group in the framework of the class action. In such a case the court will be required to examine the class action and the requested remedy taking into account the underlying principles of this specific proceeding, which is intended inter alia to provide a solution to sub-enforcement in cases in which the individual claim would be considered as a negligible claim. When hearing a class action the court cannot limit itself to examination of the remedy in accordance with the regular laws of Tort that would be applicable to an individual suit, and its decision must incorporate the principles and rules drawn from the specific field of class actions.

The need to combine the general laws of Tort with the principles and rules drawn from the laws of class actions, inter alia by relaxing the requirements pertaining to the proof of the damage caused to the members of the group, was dealt with by Justice M. Cheshin (former title) in Barazani Further Hearing [3]  (ibid,  423 – 425). Today, with the enactment of the Class Actions Law, the legislature has equipped us with a detailed statutory arrangement that consolidates the principles and the rules to be applied to the various kinds of class actions and provides a solution to the typical difficulties, some of which we dwelt upon above, and which may arise in this particular proceeding. For example, s. 20 of the Law, to which we will return below, relates to “proof of entitlement to a remedy and payment of financial compensation” and prescribes the specific arrangements for the award of remedies in class actions. The unique nature of the class action proceeding and the need for awareness thereof in the application of principles of the general law of Tort to such an action were addressed by Deputy President E. Rivlin in CA 10262/05 Aviv Legal Services Ltd v. Hapoalim Bank, Head Management [15] where he stated that:

It cannot be denied that that in certain cases the collective-representative character of the proceeding may affect the manner of examining the causal connection, just as it has implications for other elements. The subject of the causal connection in class action suites was discussed at length in Barazani Further Hearing [3]. The majority view as penned by Justice Cheshin dwelt on the basic need for fulfillment of the elements of a personal claim as a condition for the certification of the representative proceeding, specifically the  foundation of the causal connection required for certain grounds of claim. The court noted that the representative context may influence the interpretation of the foundation of the personal grounds, but noted that this possibility was limited and qualified. Conceivably and without making a definite determination on the matter at this time, the Class Actions Law may extend this possibility in view of its emphasis on the collective aspect and its relaxation of the conditions required to be fulfilled for the collective action, all with the purpose of realizing the objectives of the class action…  A strict and case specific interpretation of the foundation of the causal connection would thus be liable to seal the fate on numerous class actions, contrary to the objective of the Class Actions Law. According to another approach, in suitable cases there would be an examination of the causal connection from the perspective of a “meta-plaintiff” who reflects the shared interest of all of the potential plaintiffs, and takes the cumulative damage into account.  Such an examination of the causal connection could fulfill the requirement of the causal connection even in cases where it would not have existed in accordance with the individual case based examination.

   De Minimis

29.  The representative plaintiffs claimed that the group members should be compensated for the non-pecuniary damage caused to them under the circumstances, under two heads of damage: One of them is the infringement of the personal autonomy of the group members and the other for the negative feelings that they experienced upon being informed that they had drunk milk containing silicon.

Upon certifying Raabi’s claim as a collective suit this Court, per Justice M. Naor, in the decision on the certification application, ruled that:

 “The damage claimed by Raabi consists of non-pecuniary damage; negative feelings and feelings of repulsion. The non-pecuniary damage claimed by the plaintiff is the feeling of repulsion stemming from the fact that the case concerns silicon, with all of its negative associations. In my view, damage of this kind is prima facie compensable damage. The act of misleading regarding the contents of the milk in this case is prima facie an infringement of individual autonomy” (p. 681- 682 of the decision).

In that decision, this Court further noted that the infringement of individual autonomy had already been recognized in Tort Law as a compensable head of damage, referring to the decision in Daaka [4].  In its discussion of the class action that was certified as stated, the Lower Court deemed that in the circumstances of our case the group members suffered non-pecuniary damage and in this context dismissed Tnuva’s claim that the failure to specify all of the product’s ingredients did not gave rise to an infringement of autonomy and did not justify the alleged negative feelings. This is Tnuva’s argument before us.

Indeed, a defect in the indication of a food product’s ingredients will not always warrant compensation for infringement of autonomy and negative feelings, and there may certainly be cases in which notwithstanding the existence of a particular defect in reporting the contents of a product, compensation will not be justified.  Justice Naor dwelt on this point in the decision on the certification of the application, noting that:

The insertion of a silicon supplement in the milk, in defiance of the standard constitutes an infringement of individual autonomy, but my comments should not be taken to mean that any case of a deviation from a provision of a standard or of inaccurately reporting its contents will justify a suit. There may be quite a few cases in which a slight deviation from the provisions of any particular standard, even where it concerns food, will not justify a personal suit and by extension a class action. A suit will not be justified where the infringement is de minimis ….  (p, 684).

I concur with Justice Naor’s comments, but they are of no avail to Tnuva in this case, for as noted by the Lower Court, the harm in this case is not in the category of de mimimis from the collective-representative aspect.  

30.  In support of its claims in this matter Tnuva presented the expert opinion of Prof. Hernik who evaluated “from the perspective of a researcher of consumer behavior (the marketing person) whether and if so to what extent, there was an infringement of what is referred to as the consumers' 'autonomy of will'". In his expert opinion, Prof. Hernik acknowledged that in principle and conceptually there was an infringement of the autonomy of will in any case in which the list of contents does not actually conform to the ingredients of the product, except that in order to assess the degree of harm one must evaluate the influence of the misleading act on the consumer’s ability to choose. Prof. Hernik determined that according to his approach, the harm to infringement of autonomy caused to the consumers in this case was negligible and that the misleading media publications had generated a public storm, and lead to an 'imaginary infringement'  of autonomy of the consumers' will.” Tnuva also presented the expert opinion of Prof. Michael Perry who reached a similar conclusion and noted that in accordance with the criterion he had established for examining whether substantive harm had been caused to the autonomy of the consumer’s will, the harm in this case did not exceed a harm that was “trifling” and did not justify compensation.

I do not accept this approach and as I mentioned above, my view is that the Lower Court was correct in its dismissal of Tnuva’s claim that the harm was “trifling” and “negligible” and not deserving of compensation.

The concept of “de minimis” is one that does not admit of advance demarcation and in another context it has already been ruled that:

The question is how to measure harm and when to consider harm as being minimal, The answer depends on the nature of the right that was violated, the purpose of the infringement and additional circumstances of each particular case, and in accordance with which it may vary from case to case (see citation in CA 3901/96 Local Planning and Building Committee v. Horowitz [16]

In the case at hand Tnuva added silicon to low fat long lasting milk to overcome the problem of over frothing  and it chose this solution to save the cost of replacing a machine that was broken. In doing so Tnuva contravened the official standard then in force, according to which it was prohibited to add supplements to the milk that were not specified in that standard. Furthermore, Tnuva failed to indicate on the packaging that the milk contained silicon and the Lower Court established a factual finding that the silicon added to the milk was purchased by Tnuva as a cleaning material from the Amgal company (paras. 35 and 144 (b) of the decision ). In its appeal Tnuva challenges this factual finding but I have not found grounds for interfering with it, and given that this finding remains intact it supports the conclusion that in the first place Tnuva sought to conceal the fact that it had added silicon to the milk.  A similar conclusion also emerges from Tnuva’s conduct after the exposure of the case, when it denied having added silicon to the milk. Tnuva’s problematic conduct as described supports the presumption that the omission of silicon from the list of the ingredients specified on the relevant package was not incidental and that its purpose was to  blind the consumers to the fact that the milk it produced and marketed included this ingredient, in the knowledge that this was a substantive matter that was likely to influence the consumers’ decision whether to purchase the milk.

This was therefore a conscious and illegitimate act of misleading by the intentional concealing of information with all of its attendant severity in terms of the relations between Tnuva as a dealer and the relevant consumer group. Furthermore, silicon is an artificial chemical substance which has absolutely no nutritional value and should not be found  in milk. Accordingly, the reasonable consumer does not expect to find it in milk. Tnuva’s effort in its summations to present the silicon, post facto as a popular “food supplement” in food products lacks sufficient anchorage in the evidence and cannot be accepted,  especially given that it emerged that the Tnuva’s sole reason for adding the silicon was its desire to resolve the problem of frothing for a low cost.  Likewise, no substantive significance can be given to the fact that the standard for cows milk for drinking was officially cancelled already back in 1998. Tnuva repeatedly stresses this fact in its summations and attempts to derive therefrom that adding supplements to the milk, including the addition of silicon, is not a negative act  However, it would seem undisputed that even after the cancellation of the aforementioned standard as a binding standard, silicon did not become a supplement for milk with any of its producers, including Tnuva.   We may therefore continue on the assumption that even in the absence of a binding standard, this was a substance that the reasonable consumer would not expect to be added to the milk that he consumed.  

31.  Another claim stressed in Tnuva’s summations is that silicon is not likely to cause damage to health.  Regarding this matter Tnuva relies inter alia on the conclusion of the Danon committee and the findings of the Magistrates Court in the criminal proceeding, as well as on the expert opinion of Dr. Aharon Eizenberg and Prof. Nissim Garti,  submitted on its behalf. In the absence of damage to health Tnuva contends that no damage was caused to the milk consumers that we are concerned with and that at the most this is a trifling matter that does not warrant compensation. Indeed, the representative plaintiffs did not present an expert opinion on their behalf to prove the allegation hat silicon is injurious to health and neither did the District Court rule on this matter, writing that:  

Indeed, it has not been proved that drinking milk containing silicon caused or is liable to cause immediate harm to the health of consumers. However, in the view of Health Ministry experts, also representing the position of the Ministry of Health as presented by the Attorney General in the appeal against the decision to certify the suit, it is not possible to rule out the existence of a health hazard in the long run, primarily to children, in the wake of drinking milk that contains silicon in view of the fear of consumption in excess of the acceptable daily intake (ADI)…

In the framework of this proceeding there is no cause for ruling on the scientific question of the degree to which the drinking of milk containing silicon poses a health risk. For purposes of this claim it suffices that the existence of such danger cannot be ruled out, at least according to some of the experts. From the plaintiffs’ perspective, it suffices that it was proved that Tnuva’s consumers were entitled to know, upon deciding to purchase milk that it had produced, that it contained silicon in defiance of the law and the standard and that under certain circumstances one cannot rule out the risk to health posed by its consumption” (para. 35, emphasis added).

In this ruling, the Court relied largely on the position of the Attorney General that was submitted to this Court in the framework of an appeal against the decision concerning the certification of the suit as a class action, which it stated that:

In an examination conducted by the National Food Authority of the Ministry of Health, it was not found that this substance is harmful to health, but the fact that there was a determination of ADI [acceptable daily intake) indicates that in excess of ADI there is no certainty concerning its safety in terms of health and the existence of a long term risk cannot be ruled out.  Given that in Israel large quantities of milk are consumed (not necessarily long lasting milk) primarily by children, then with respect to the consumption of milk containing silicon the consumption may exceed the ADI level.  The position of the Ministry of Health is therefore that it lacks information indicating that silicon is harmful to health, but it cannot rule out the existence of a long term risk, in cases involving the consumption of large quantities [para.3, emphasis added]

In addition,  regarding this matter it would not be superfluous to refer to the Danon Report which Tnuva seeks to rely upon.  The Danon Commission did indeed conclude that experience shows that silicon is not harmful to health, does not cause birth defects and that there is no scientific proof of it being carcinogenous (p. 55 of the Danon Commission Report). All the same, the Commission took into consideration the fact that Tnuva had added silicon to the milk “to a degree that exceeded what was permitted according to the manufacturer’s instructions, without examining and considering the effects of its heating and the attendant dangers. The Report further mentioned that “attempts were made in the dairy to reach a dosage that would be suffice for the required blocking of the froth, but without consulting with any entity in the Ministry of Health or any other licensing authority”, and that the silicon was added to the milk in a quantity and dosage that exceeded the level approved for foods other than drinking milk that this fact “necessitates an additional investigation of matters relating to the ordering of the material and the use thereof (p. 14-15 of the Danon Commission Report).

Accordingly it is difficult to accept Tnuva’s claim that there are unequivocal conclusions regarding the influence of the silicon added to the milk with respect to its influence on the consumers’ health, and this is sufficient grounds for not interfering with the Lower Court ‘s conclusion that under certain circumstances one cannot rule out the possible health risk involved in the consumption of milk containing silicon. Similarly, I also accept the Lower Court’s position that at all events every person has the right to choose whether he wishes to expose himself and his family to the material the nature of which is unknown to him. Hence, the fact that it was not positively proved that silicon is actually liable to harm consumers’ health has implications for the intensity of the infringement of autonomy (see Daaka  [4 ], p. 583; Nili Karako-Ayal, “Estimation of Compensation Due to Damage from Infringement of the Right to Autonomy”  - in the wake of CA 2781/93 Ali Daka v. Carmel Hospital, Hamishpat, 11,  267, 270-271 (5767) (hereinafter – Karako-Ayal)), but not on its infringement per se as a result of the fact that the consumer introduced a chemical substance into his body, the essence and character of which were unknown to him without having had the opportunity of deciding whether he wanted it (see s.1 of the Attorney General’s response to Tnuva’s application to submit additional evidence in the framework of the hearing on the application for certification in this Court. Regarding the significance of the health risk in class action proceedings in the case law of the District Court, see also CF 2593/05 (Tel-Aviv Jaffa) Solomon v. Guri Import and Distribution Ltd, para. 44 [   ] ; CF 1624/07 (Capp 8767/07)(Tel-Aviv Jaffa) Hova v. Milko Industries Ltd  [   ](27.1.2020); CF. 1126/07 (CApp 3058/07) (Tel-Aviv Jaffa) Arges v. Tnuva Central Cooperative for Marketing of Agricultural Products in Israel Ltd, para. 16 [   ] ; CF 1545/08  Alfasi v. Super Pharm Israel Ltd  [     ] and CF 1424/09 ((Tel-Aviv Jaffa) Guttman v. Neviot – Teva Hagalil Ltd.

In view of all the above, there is grounds for the Lower Court’s determination that under these circumstances there was an infringement of the consumer’s autonomy to decide whether or not he desired to consume  milk containing silicon and prima facie this is not a “trifling” infringement falling into the category of de minimis,  not warranting compensation.

32.  This conclusion gains added force inasmuch as our concern is with a class action in which it was proved that Tnuva’s act of misleading harmed the broad consumer public and the Lower Court  rightly ruled that under these circumstances the severity of the harm must be examined from the perspective of the entire group and “not from the perspective of an isolated consumer”. Indeed, I already mentioned the approach whereby the de minimis  rule does not apply, in the simple sense, to the foundation of damage in a typical class action,  insofar as “its central feature is the accumulation of insignificant instances of damage, which when considered individually would not have materialized into a legal proceeding; this approach has established itself in the case law of this court (see Aviv Legal Services Ltd [15], para. 10; also see comments of Justice Mazza in Barazani Further Hearing [3], 447). All the same, it should be emphasized that the fact that a large group of plaintiffs in a class actions alleges an accumulation of minor damages, does not necessarily negate the possibility that the matter is de minimis  from the group perspective as well. As noted, the precise borders of this concept do not admit of determination in advance and in a class action proceeding the answer to the question of whether the damage is of a minimal nature that does not warrant compensation depends on the circumstances of each case and may change having consideration for the particular circumstances of each case.

At all events, in the case before us, given the existence of a large group that  alleges damage as a result of Tnuva’s actions, the severity of which from a consumer perspective has already been discussed, precludes the conclusion that the matter is de minimus, even in the context of a class action. This is the case even though one cannot rule out the possibility that the existing discrepancy between the members of the group in terms of the intensity and scope of the injury may lead to the conclusion that had each member of the group filed a  personal claim the remedy claimed by each one of them separately would be de minimis.  Another question  concerns the number of group members who are entitled to compensation for this injury and what is the rate and the model of compensation for purposes of ruling in our case. When considering the number of the members of the group entitled to compensation attention should also be given to the issue of splitting up the compensation for non-pecuniary damage in the current case.  The reason for this is that the Lower Court held that compensation should be awarded for the Tort head of infringement of autonomy and separately for the tort head of negative feelings.  It will be recalled that in this context the Lower Court accepted the position of the representative plaintiffs and in reliance on the consumer survey that was presented to it (adjusting its results downwards), and ruled that: "a uniform rate should be ruled for the infringement of individual autonomy, whereas with respect to about half of the members of the group it will be supplemented by damage by reason of negative feelings" (para. 84 of decision).  Nonetheless, it bears note that ultimately the Lower Court ordered the payment of overall compensation (NIS 55 million), stating that this sum "reflects the personal damage that is estimated for each individual of the group, of the sum of NIS 250 (para. 134 of decision), and without actually distinguishing between the heads of damage that were mentioned and without differentiating between the members of the group in its entirety whom it had determined were entitled to compensation for the infringement of autonomy and half of the members of the group, who were additionally entitled to compensation for negative feelings. Accordingly in their appeal the representative plaintiffs challenge this ruling, and we must therefore address the fundamental issue of the splitting up of the non-pecuniary compensation, as mentioned.

However, prior to addressing the subject of the scope of the compensation  awarded we must first address the essence of the central damages head  which was at the forefront of this class action.

 Infringement of Autonomy

       33.  In the Daaka  [4] case, Israeli law recognized for the first time that the non-pecuniary damage involving the infringement of autonomy is "damage" in the sense of the Torts Ordinance, and that as such is compensable (on compensation for non-pecuniary damage in Tort Law in general, see s. 76 of the Torts Law. Also see CA 4576/08 Ben-Zvi v. Prof. His  [17] (hereinafter: Ben Zvi); Eliezer Rivlin " Compensation for Non Pecuniary Damage –Broadening Tendencies" -  Shamgar Volume,  Part 3, 21, 45 (2003); Yifaat Biton Dignity Aches: Compensating Constitutional Harms, 9 MISHPAT UMIMSHAL (Haifa University LR) 137 (2005) (hereinafter: Biton).   In the Daaka [4] case the court held that the  fundamental right to autonomy means the right of every person "to decide his or her deeds and wishes in accordance with his or her choices, and to act in accordance with those choices". It ruled that this right encompasses all of the central aspects of a person's life, from which it may be derived inter alia that "every person has freedom from unsolicited non-consensual interference with his of her body". It further held that this freedom is one of the expressions of the right to dignity given to every person, and is anchored in Basic Law: Human Dignity and Freedom.

These rationales, which in Daaka [4] lead to the recognition, protection and compensation for an infringement of autonomy of the body, are relevant and applicable to cases in which there is an infringement of the victim's autonomy in central aspects of his life due to the denial of his freedom to choose and the breach of the duty of disclosure to him. For example, the court recently recognized the damages head of infringement of autonomy in a case in which the autonomy violated was that of the family relatives of the deceased person, and pertained to the manner of treating his body (see in Ben- Zvi [17]. Hence, contrary to Tnuva's claim, the recognition of the damages head of infringement of autonomy is not, and should not be limited to cases of medical negligence or exclusively to autonomy of the body. The principles underlying the recognition of this head of damages and the constitutional right protected by such recognition, in appropriate cases, will justify compensation for infringement of autonomy even where other torts are concerned, such as the consumer tort in our case (see Tzachi Keren-Paz "Compensation for Violation of Autonomy: Normative Evaluation, Developments and Future Trends" Hamishpat 11, 187, 192-194 and the examples cited in the footnotes) (2007) (hereinafter – Keren-Paz); Dafna Barak – Erez, "Constitutional Torts in the Era of Basic Rights" Mishpat UMimshal 9, 103, 121-122, 129 (2006)).  In her in her decision to certify Raabi's suit as a class action, Justice Naor was guided by the approach that rejects the limitation of the boundaries of the damages head of non-pecuniary damages for infringement of autonomy to Tort of negligence in general and specifically medical negligence.  Her approach was rightly adopted by the Lower Court when it awarded compensation for the damages head of infringement of autonomy, having found that by its actions Tnuva had committed an act of misleading against Raabi and against the group of consumers that he represented, by failing to disclose the existence of silicon on the packaging of the milk that it produced and marketed.

34.  It is important to note that in the Daaka [4] case the infringement of autonomy was classified as a head of non-pecuniary damage in the framework of the tort of negligence, and not as a separate tort in its own right. Following the decision in Daaka [4] the view was expressed that it was appropriate to recognize the infringement of autonomy as a constitutional tort that gives rise to an independent grounds of claim (on this, see the comments of the Deputy President in CA 8126/07 Estate of the Late Bruria Zvi  v. Bikkur Holim Hospital [18]; Ben-Zvi [17] in para. 54 of his decision and in the same vein, the opinion of Justice Amit, in Ben Zvi  para. 21.  Also see Rivlin, 45 and see and compare to Keran Paz;  Nili Krako Ayaal "The 'Informed Consent' Doctrine – An appropriate Ground of Claim where the Patient's Right to Autonomy was Violated" Hapraklit 49, 181, 222-223 (2006)). However, our case law  has yet to give deep consideration to this weighty issue of recognizing a new tort created by case-law and the case at hand does not require  a discussion and decision on the matter. The reason is that the representative plaintiffs in this case took the path of settled case -law, and classified the infringement of autonomy as a  non-pecuniary head of damage in the framework of the tort of misleading which it attributed to Tnuva in accordance with the Consumer Protection Law. Inasmuch as the representative plaintiffs did not claim in the Lower Court or before us that in this context the plaintiff's  right to compensation for infringement of autonomy should be recognized as a  (sic)right ,should be recognized as an independent tort based on the violation of a constitutional right entitling the plaintiff the issue can be left pending further examination and there is not cause for us to address the matter on refer to it on our own initiative.

The Requirement of a Causal Connection

35.  Tnuva further added that the Lower Court erred by deviating from the law set forth in FHC Barzani [3 ] dwelt on above, and had actually waived the requirement for a causal connection between the act of misleading and the damage. Tnuva claimed that the representative plaintiffs failed to prove that their decision would have been influenced by having been informed in advance.  Since the grounds of misleading, by definition, requires that the consumer rely upon the dealer’s conduct, then absent proof of such reliance, according to Tnuva, there are no grounds for an act of misleading under the Consumer Protection Law.

On the other hand, the representative plaintiffs claim that to the extent that the concern is with the head of damage in the form of infringement of autonomy, then it will be regarded as having been proved, even if the victim would have acted in the same manner had he been presented with all of the information, and that at all events, in the case at hand it had positively been proved that the consumers would not the purchased milk containing silicon.

36.  Indeed, in the Further Hearing Barazani [3] and we already addressed this point above, the court ruled that the requirement for a causal connection in s. 64 of the Tort Ordinance also applies to consumer torts pertaining to misleading advertising, and even where the tort is grounds for a class action. All the same, the court also ruled that to the extent that the matter concerns consumer torts, the requirement of reliance deriving from the requirement for a causal connection will be interpreted broadly so as not to include to direct reliance only” but also “an indirect causal connection by way of a reasonable chain of causes from the publication and until the consumer” (ibid.,  414- 415). In Barazani [2] it was further ruled that in a class action proceeding based on the provisions of Chapter F’1 of the Consumer Protection Law and its relevant regulations enacted by force thereof  (provisions that as stated were cancelled in the interim in the Class Actions Law) it may be necessary to relax the stringency in proving the causal connection having consideration for the nature of this unique proceeding, and the fact that “the court is entitled to prescribe appropriate methods of proof at its own discretion for the causal connection between the misleading publication and the damage caused to each one of the members of the group, including the damage that was caused to each and every one of them (ibid.,  424). In that matter there was no proof at all of a causal connection, not even indirect, as claimed by Barazani, given that Barazani was not actually exposed to the publication. For this reason the court dismissed Barazani’s application to approve his personal claim as a class action and ruled that his personal suit does not show any grounds.

Tnuva’s attempt to rely on the Barazani ruling and to claim that in this case too it was not proved that there was a causal connection between its conduct and the non-pecuniary damage being claimed, cannot stand, for a number of reasons:

First, the claim was raised by Tnuva at the stage following the certification of the class action and to the extent that it is directed against the group as such, it must be remembered that three years after the decision in the  Further Hearing Barazani  [3], the Class Actions Law was passed, unifying all of the principles and rules to be applied to the various categories of class actions. The Law consists of a comprehensive, detailed statutory arrangement, including the methods of proving entitlement to the remedy being claimed, and inter alia it enables the granting of remedies for the public good in appropriate cases where it is not practical to prove the damage caused to each member of the group and  a fortiori the causal connection between the damage and the tortfeasor’s conduct (s. 20 (c ) of the Law). As specified below, this outline was adopted by the Lower Court and under these circumstances the demand to prove the causal connection between Tnuva’s conduct and the damage in respect of each individual of the group is problematic.

Second, the decision in Barazani [3] concerned misleading by action due to the misleading advertisement of Bezeq concerning the tariffs per conversation, and as mentioned it was held that insofar as Barazani was not even exposed to the misleading advertisement, there was no causal connection between the publication and his alleged damage.  Our case on the other hand concerned misleading by omission committed by Tnuva in its failure to disclose the fact of the silicon being added to the milk. Tnuva claims that the plaintiffs must prove that had they been exposed to that fact in a timely manner they would not have purchased the milk. It would seem that a requirement of a plaintiff to prove that had he been aware of the fact he would have acted otherwise would be particularly difficult to prove and in many cases even impossible. Indeed, this position is reinforced to the extent that our concern is with a class action. On the difference between misleading by an act and misleading by omission with respect to proving a causal connection in the representative context, see our comments in CA 9590/05 Rahman Nuni v. Bank Leumi LeIsrael Ltd [19] which overturned the District Court’s decision to dismiss the application for certification of a class action because of the plaintiff’s failure to prove the causal connection. In our judgment in the appeal we reversed this decision and ordered that the file be remanded to the lower court, indicating that “it seems that the question of the requirement of the causal connection in this case is also worthy one further consideration. This matter involves complex questions, the first of which is whether to apply the rule set by this Court for purposes of the ground of misleading, in FHC 5712 Barazanai  [3] even where it concerns the grounds of “non-disclosure” (ibid., para. 6) (regarding the similar approach taken in American Law in various contexts, see: Affiliated Ute Citizens of Utah v. United States 406 U.S. 128, 153-154 (1972) [34]; Binder v. Gillespie 184 F.3d 1059, 1063-1064 (9th Cir. 1999) [35]; Poulos v. Caesars World Inc. 379 F.3d 654, 666 (9th Cir. 2004) [36 ]. See also, CF (Tel-Aviv-Jaffa) 2405/04 Ben Ami v. Hadar Ltd [  ] paras. 72- 73 (14.2.2010).

We may thus conclude that to the extent that the consumer tort on which the class action is based on is misleading by way of omission, (by way non-disclosure) this may justify leniency regarding the proof of the causal connection between the wrongful conduct and the alleged damage.

Third, as opposed to the Barazani case [2], which was a monetary claim (tariff differentials), the head of damage being sued for in this case pertains to non-pecuniary damage  in the form of infringement of autonomy. Regarding this head of damage it was ruled that there was no need to prove a causal connection between the failure to disclose relevant information and the choice made by the victim (see: Daaka [4], 567-570; CA 6153/97 Shtendal v. Prof. Yaakov Sadeh [20], at p. 760; CA 9936/07 Ben David v. Dr. Entebbe [21] para 11 of Justice Hendel’s decision; CA 9817/02 Weinstein v. Dr. Bergman,[22]  para. 18). For a critique of the Daaka [4] decision, see Assaf Yaakov “Informed Consent and Duty to Disclose, Tel-Aviv University Law Review  31, 609 (2009). The rationales in this context that guided the court in Daaka [4] and in other matters pertaining to medical negligence are applicable to the same degree with respect to an infringement of autonomy caused as a result of the consumer tort committed by a dealer who misled a consumer.  Indeed, the non-disclosure per se involves the denial of the consumer’s freedom of choice. In our case, by failing to specify silicon as one of the components of the product, Tnuva deprived the consumers of the possibility of making an intelligent choice and deciding whether they wish to purchase and consume it. This suffices as proof of an infringement of autonomy. Another question is whether this suffices to establish a right to compensation or whether it must further be shown that consequential damage was also caused to the plaintiff, finding expression in negative feelings given the denial of his freedom of choice. I will address this point further on. 

37.  At all events, even had we ruled that the circumstances of this case necessitated bringing proof that the members of the group would not have purchased the milk had they known that it contained silicon, this requirement for a causal connection in a class action  might conceivably have been satisfied by a determination in the manner of a "collective causal connection" (on this see Aviv Legal Services [15]para. 10). This kind of collective causal connection may be substantiated by the assumption that the group members, and at least the majority thereof, would have replied in the negative had they been asked in advance whether they would purchase milk to which Tnuva had added an artificial  supplement the  nature of which they were ignorant, and in defiance of the standard,  in order to overcome the problem of excessive frothing (compare C.F. 1036/66 (Capp. 1877/06) (Tel-Aviv Jaffa) Tal v. Rabin Medical Center (Beilinson Campus), para. 12) [  ] See also regarding the use of "generalized evidence" in American Law: Kennedy v. Jackson National Life Insurance Company, 2010 U.S. Dist. Lexis 63604, 25-28 (N.D.Cal 2010) [37];   Negrete v. Allianz Life Insurance Company of North America 238 F.R.D 482, 491-492 (C.D. Cal. 2006)[38]; Klay v. Humana, Inc.382 F.3d 1241, 1259 (11th Cir. 2004) [39]. Regarding the exception to the application of the doctrine in cases in which extensive differentiation between the members of the group was proved, see Poulos v. Caesars World, Inc. [36]. Further support for the application of this doctrine in the circumstance of the case before us can be adduced from the fact that it was Tnuva's intentional actions that created the situation which encumbered the process of locating the members of the group and the conduct of an individual examination of each of the elements that must generally be proved in the according to the law of tort.  Additional support for the existence of a causal connection between the act of misleading committed by Tnuva and the consumers' choice to consume the milk, can be fond in the trends evidenced in the consumers survey that was presented, and which we will address further on.

   38.  Tnuva further adds that at all events, the publications in the press concerning the damage to health caused by silicon consumption severed  the causal connection between its own acts and the bad feelings experienced by consumers, which it claims were  by and large the result of publications that post facto turned out to be unfounded.  This claim regarding the causal connection is not grounded in evidence, and in this matter as the one whose act of mass misleading caused uncertainty regarding the precise influence of the publications on the feelings of the consumers, it is Tnuva that bears the onus of proving the opposite (compare: Johnson v. The Goodyear Tire & Rubber Company, Synthetic Rubber Plant, 491 F.2d 1364, 1379-1380 (5th Cir. 1974)[40]; Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972) [41]. Accordingly, this argument is rejected.

Assessment of the Compensation for the Infringement of Autonomy – The Objective Approach and the Splitting Up of the Compensation for Non-Pecuniary Damage.

39.  How does one assess the compensation for the tort head of infringement of the right to autonomy?

Based on the constitutional features of the right to autonomy some favor the objectification of the assessment of the compensation for its infringement. For example, Dr. Tzahi Keren-Paz argues that "freedom of choice can be viewed ….as an asset with objective value" and hence "it is appropriate to award a sum that reflects the social value attaching to the denial of freedom of choice. This sum should even be awarded absent proof of consequential, subjective damage (feelings of shock and anger) by reason of the denial of freedom of choice" (Keren-Paz, 196-198). Keren-Paz sees special justification  for an objective assessment of compensation for infringement of autonomy in the consumer context. In his view, "the deterrent consideration (that focuses on the dealers) must also justify the compensation award in circumstances in which the compensatory factor (that focuses on the legitimate damaged interest of the consumer) does not provide sufficiently strong support for the compensation due to the problem of under-deterrence of the dealers…"(Keren-Paz, 242).  The scholar Dr.Nili Karko-Ayal likewise suggests that compensation should be assessed  in accordance with the value of the right to autonomy on the one hand, and the gravity of its infringement, on the other hand (see Karko-Ayal and see the opinion of Judge Strasbourg-Cohen in the Daaka case [4], at p. 619).

This approach deviates from the traditional principles of the laws of tort, that are based on a subjective, individual assessment of amount of compensation, and from the conception of compensation as being intended to restore the victim's position to the status quo ante and to provide him a remedy for the damage caused to him, including non-pecuniary damage. This point was mentioned by Justice Or in the Daaka case [4 ] when he awarded compensation for a  victim under the tort head of infringement of autonomy, where he said:

Naturally, matters relating to the proof and the extent of damage are determined in accordance with the particular data in each individual case and the evidence submitted in court. The substantive criterion for generally determining the amount of compensation to which the victim is entitled is the criterion of restoring the situation to its original [ex ante – ed.] state. This criterion is an individual one. It requires an individual assessment of the gravity of the harm caused to the specific victim (p. 582-583)

The difficulty involved in application of a "pure" objective criterion for purposes of determining the sum of the compensation for an infringement of autonomy was likewise addressed by scholar Prof. Dafna Barak-Erez in her discussion of claims filed by the individual against an authority, where  she emphasized that in this context as well:

…the principles of tort should not be deviated from  by awarding compensation that is detached from the concrete infringement and its circumstances. The sum of the damages cannot and need not reflect the universal value of the right… compensation that purports to reflect the general value of the right should be rejected  for a number of reasons. First it is illegitimate from a principle-value based perspective, because it purports to attach a price tag to the right itself. Second, it benefits the plaintiff in a manner that extends beyond his own particular damage, and thus deviates from the principle of restoring the status quo ante. In the realm of Tort law, compensation is determined in accordance with the damage to the victim himself, and not in accordance with the value of his right from the perspective of the other person (Dafna Barak-Erez, Constitutional Torts 277 (1993) (hereinafter – Barak-Erez)).

It is not superfluous to mention that in academic writing in the field of tort one can discern trends that deviate from the traditional perception whereby Tort law is intended to grant remedial damages to the specific victim in order to restore the status quo ante. Hence for example, there are some who contend that punitive damages that are not derived from the victim's damage may in appropriate cases provide a solution to sub-enforcement and therefore constitute an efficient form of deference A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869 (1998), as well as to heal societal damages caused by the tortfeasor to the victims who did not come to court  (Catherine M. Sharkey,Punitive Damages as Societal Damages, 113 Yale L. J. 347 (2003). Deputy President, E. Rivlin recently addressed this matter in the matter of Ben Zvi  [17] in  where he treated the matter of punitive damages, noting that today, the case law in Israel too has recognized the court's authority to award damages of this kind in the framework of the law of tort, and he also mentions that :"despite the sharp analytical distinction between punitive damages and remedial damages, on a practical level the contradiction is not so sharp, at least in the realm of non-pecuniary damage"  (paras. 37- 39 of his opinion, see also in LCA 9670/07 Anon v.Anon [23], paras 22-27 or the opinion of Justice E. Rubinstein, and the opinion of the Deputy President E. Rivlin).

However, to the extent that the compensation to be evaluated and awarded is claimed as part of a class action, one must remember the provision of section 20 (e) of the Class Action Law, which provides that: 

In a class action the Court shall not adjudge exemplary compensation and it shall also not adjudge compensation without proof of damage….but the aforesaid shall not prevent the award of compensation for other than monetary damage.

    Thus, the Class Actions Law stymied the possibility of awarding punitive damages in a class action. All the same, the Law established other special compensatory mechanisms that enable realization of the principle of remedial justice, for example, by way of imposing a cy-pres obligation on the tortfeasor for the damage caused, and principles of efficient deterrence, such as obligating the tortfeasor to provide a remedy for the public interest for the widespread social damage that he caused, and I will address this matter below.

40.  I do not accept the objective approach to the evaluation of the sum of damages for infringement of autonomy that I reviewed above. The head of damage of infringement of autonomy is encapsulated in the negation of the victim’s freedom of choice, and in the majority of cases involves the non-disclosure of a matter that is critical for the victim. Accordingly at the very least as far as it concerns class actions, a presumable starting point for evaluation of the non-pecuniary damage caused to those whose autonomy was violated, is that as a result of that infringement they experience anger, frustration and insult (of varying degrees of intensity, according to the concrete circumstances of the case).  These feelings which resulted from the tortfeasor’s conduct, justify compensation for non-pecuniary damage. However, there is no conclusive presumption that these feelings are experienced by the victim in every case of an infringement of autonomy. Accordingly, should the tortfeasor successfully prove that notwithstanding that his conduct negated the freedom of choice of the plaintiff or of the members of a group, they remained indifferent and unmoved, it may be determined that they are not entitled to damages under this head of damage because in truth, despite the denial of their freedom of choice, they did not sustain any non-pecuniary damage as a result. My approach, whereby the compensation for infringement of autonomy is awarded by reason of the subjective consequential damage expressed in feelings of anger, frustration and other similar negative feelings caused by the tortfeasor’s conduct, gives rise to the another conclusion – that there are no grounds for severing the compensation for infringement of autonomy from the compensation for mental anguish and negative feelings caused to the victim by that infringement (as distinct from the non-pecuniary head of damage relating to other infringements in framework of the same claim). A different approach to this matter was expressed by the Lower Court, even though, at the end of the day, as mentioned, the Lower Court awarded a sum total of NIS 250 as non-pecuniary damages for each member of the group without distinguishing between those members of the group who experienced negative feelings and those regarding whom it was proved by the consumers survey did not suffer feelings of this kind (regarding this matter, see the dispute between the Deputy President E. Rivlin and Justice Y. Amit, in the matter of Ben – Zvi [17] (see Keren-Paz, 203-208). 

A conclusion similar to my conclusion on the matter also emerges from the findings of Justice M. Naor in the decision given in the appeal on the decision to approve Raabi's suit as a class action.  In that context Justice Naor relates in the same breach to the non-pecuniary damage caused by the infringement of autonomy and to the negative feelings attendant to that damage. In her own words:

…..[t]he damage claimed by Raabi is non-pecuniary damage, negative feelings and feelings of revulsion. The non-pecuniary damage which he claims is characterized by the feeling of revulsion that stems from the fact that the material concerned is silicon with all of its attendant associations. In my view damage of this kind is compensable damage. The act of misleading concerning the contents of the milk in this case, prima facie, constitutes, an infringement of individual autonomy. Our concern is with a food product.  Consumers are entitled to determine what to ingest into their mouths and bodies and what to avoid. For example, if a person wishes to only eat kosher food and post facto it becomes clear to him that the food that was misleadingly presented to him, was not of that nature, will feel a sense of revulsion and an infringement of his autonomy…  (ibid.  681-682, emphases added).

     Indeed, to the extent that it concerns Raabi  - the representative plaintiff – after hearing his testimony and the testimony of his son, the Lower Court ruled that Raabi had experienced substantial negative feelings upon becoming aware that the milk that he had consumed contained silicon, and that Tnuva had refrained from specifying this component on the packaging; in the words of the Lower Court:

,,,[a]s a result of these acts the plaintiff was denied the ability to make an intelligent and informed choice concerning the purchase of an alternative product, that does not contain  a supplement that it prohibited by law for use in milk for drinking. It is likewise clear that the negative feelings experienced by Raabi stem from the acts of Tnuva. It could be claimed that these feelings were exaggerated, having consideration for the fact that it was not proved that silicon causes a health risk. But one cannot dispute his [Raabi's] feelings as such: [Raabi] subjectively felt a sense of disgust (nausea), anxiety,  as a result of having drunk the milk containing silicon as well as anger and rage by reason of the fraud.  All of these fall into the category of non–pecuniary damage that is neither peripheral nor negligible and is indeed compensable… " (para. 57, emphases added).

     There is no justification for interference with these rulings of the Lower Court, for as stated they are based on the testimonies of  Raabi and his son, and on the Court's direct impression from those testimonies. However, in order to determine the precise compensation to be awarded, if at all, in favor of the group on whose behalf Raabi handled the class suit, proof of subjective damage caused to Raabi will not suffice and additional complex questions must be addressed, relating to proving the entitlement of the members of the group to the pecuniary compensation that was claimed, including, inter alia,  the question concerning the difference between the group members who experienced negative feelings as a result of the denial of their right to chose whether nor not to consume milk containing silicon and the group members who remained indifferent to the aforementioned denial of their free choice.

41.  As mentioned above, under the circumstances, at the time of the handing down of the decision on the class action it was not possible to individually identity each member of the group and to determine the individual right of each one of them to  a remedy. As such it was not possible to rule on the class action in favor of the group in accordance with the evidentiary paths  set forth in section 20(a) of the Class Actions Law. In order to determine the compensation, the Court was required to utilize the framework of s.  20 (c) of the Class Actions Law, which was intended for those cases in which "Court concluded that, under the circumstances, pecuniary compensation for all or some members of the group is not practical, either because they cannot be identified and the payment cannot be made at a reasonable cost, or because of other reason".

Based on the opinion of Prof. Ofir, who was appointed as expert on the Court’s behalf, the Lower Court ruled that during the relevant period 220,000 consumed the long-lasting milk containing silicon.  Basing himself inter alia on the data he received from Tnuva, Prof. Ofir estimated that the number of households that had purchased the milk stood at NIS 166,307, and in his testimony in Court Prof. Ofir noted that the number of adult purchasers during the relevant period stood at 330,000. As such, according to his approach, the number of members in the group ranged from between 166,307 to 330,000 (p. 672 of the protocol). The Court’s determination that in this context one should consider a group number about 220,000 persons is therefore a cautious and conservative estimate (see comments of Prof. Ofir, p. 672 – 674 of the protocol), which will not be interfered with.

What remains to be examined is how many of those belonging to the aforementioned group of milk consumers actually experienced negative feelings as a result of the infringement of their autonomy.

The representative plaintiffs submitted an expert opinion drawn up by Dr. Katz and Prof. Mevorach, based on a consumers survey, from which it emerges that 26% of those questioned, who represent the general population, were indifferent to the publication to the effect that the milk contained silicon. Under the assumption that this percentage, pertaining to the general population, is also likely to reflect the interviewees who did not actually consume the long lasting low-fat milk during the relevant period, it would be appropriate to address the essential findings of the expert opinion that reflect the percentage of consumers of this milk before the publication from out of the total population (43%), and the percentage of consumers from out of these who continued to drink this milk even after the publications concerning the inclusion of silicon therein (30% out of the 40%, which represents 13% of the entire population). The expert opinion of Dr. Mevorach and Dr. Katz indicates that 66% of those who previously consumed long lasting, low fat milk of Tnuva (which they claim represent 28% of the total population) experienced negative feelings  in the wake of that publication, at various levels of intensity, including "revulsion, nausea, anxiety, fear, anger, hatred, disappointment, deceit, lying, fraud, temerity, contempt, irresponsibility, bad feelings (section 3 of the survey), whereas 30% continued to consume the milk even after the publication.

In our case and based on the data presented by the representative plaintiffs, there are grounds to conclude that some of the group members remained indifferent to the addition to the silicon to the milk.  26% of those asked specifically stated that this was their feeling: "indifference, no problem, not correct and other feelings that are not negative"- page 5 of the expert opinion of  Dr. Katz and Dr. Mevorach, subsection (b) of the answers to question 3, and "nothing, unmoved and indifferent" and "they made a mountain out of a molehill" – (the encryption page of the answers to question 3), and in the absence of a datum in the survey conducted regarding how many of those questioned had consumed silicon in the past, I think that the percentage of "indifferent consumers" can be derived from the datum in the expert opinion relating to those who continued to consume long lasting milk even after the publication of the silicon matter (30% of the overall number of consumers in the past, and 13% of the entire population). Accordingly, from out of the overall number of consumers of long lasting low fat milk during the relevant period, the number of whom stood at 220,000 according to the determination of the Lower Court there should be a reduction of  30% of "indifferent consumers" who did not experience negative feelings even after having been informed that the milk that they had consumed contained silicon, and that Tnuva refrained from indicating this element on the packaging.  The scope of the group entitled to compensation for the infringement of autonomy that caused them negative feelings, therefore stands at 154,000 people.

42.  In its pleadings, Tnuva objected on a number of counts to the  Lower Court's willingness to base findings and conclusions on the consumer survey relied upon in the expert opinion of Dr. Katz and Dr. Mevorach. Basing findings concerning subjective feelings on surveys is problematic. Even so, inasmuch as the Lower Court ruled that the structure for proving the pecuniary compensation to be awarded in this case is the one prescribed by s. 20 (c ) of the Class Actions Law in view of the practical impossibility of identifying the group members and in ruling individual compensation, under the circumstances, the reliance on an expert opinion based on a consumers survey gives expression to a degree of leniency regarding the modes of producing evidence which is occasionally required in the context of class actions. The need for such leniency was already addressed by the court in Barazani [3], as mentioned above and is now grounded in explicit legislation in the provision of s. 20 (c ) of the Class Actions Law (on the "enlisting" of statistic data for proof of damage where there is structural vacuum in terms of the possibility of presenting individual data, see and compare: Eliezer Rivlin and Gai Shani "A Rich Conception of the Principle of Restoring the Status Quo Ante in the Doctrine of Compensatory Damages"  ,  (hereinafter: Rivlin and Shani); Gai Shani: "The Principle of 'the Matter Speaks for Itself' in the Law of Torts – Revisited”; A. Porat & A. Stein Tort Liability under Uncertainty 87-92 (2001);  Naturally, the court's reliance on the expert opinion based on the consumers survey is conditional upon the court having found the expert opinion to be worthy of reliance, having considered the entirety of claims raised regarding it.

In the case before us, having examined the survey's findings,  the expert opinion of the Dahaf Institute on Tnuva's  behalf (drawn up by the expert, Dr. Mina Zemach), and the expert opinion of the Court expert who gave his opinion on the survey, the Court held that "The testimony of Professor Mevorach and Prof. Katz made a reliable impression, and  my impression is that they are professionals with experience and knowledge in their field" (para. 60). The Court rejected Tnuva's claim that the survey's results are biased, and that the questions presented to the interviewees included the assumption that silicon causes health hazards. For example, Dr. Mina Zemach on Tnuva's behalf mentioned question three that was presented to the interviewees ( "What did you feel in the wake of the publications  concerning  Tnuva's insertion of silicon into long lasting low fat milk, and its health risks?"). She claimed that the final clause of the question relating to health risks was altogether unnecessary and that there was reasonable grounds to fear that "this biased wording contributed to part of the serious defects of the study" (page 4 of the expert opinion, page 11 of the expert opinion).  Rejecting this assertion, the Court ruled that the presentation to the interviewees was authentic because it was proved that at that time there were publications concerning the health risks of silicon.  All the same, to be on the safe side, the Court was prepared to assume that the survey’s findings that tended to exaggerate the negative feelings somewhat, even if not to the extent of justifying the survey’s disqualification, as claimed by Tnuva, should be taken into account when determining the number of consumers who experienced negative feelings (about half according to the Lower Court’s holding as opposed to 66% according to the survey).  There was no justification for interfering with the conclusion that the wording of question number three did not warrant interference (regarding this, see comments of Prof. Mevorach in his testimony, p. 287 – 291, 296- 298 of the protocol). Furthermore the Court further ruled, correctly, to disqualify the fifth question of the survey, in which the interviewees were asked “Did your negative feelings emerge immediately with the initial publications or after that publications were also verified by the Ministry of Health and by Tnuva. The Court noted that this question contains potentially misleading information because of the possible implication that Tnuva and the  Ministry of Health had verified the publication concerning the health hazard, when in fact this was not the case/

  Accordingly no defect can be found in the Lower Court’s willingness in this case to rely on the expert opinion of Dr. Katz and Prof. Mevorach (that relies on a consumers survey) for purposes of determining the portion of the group that experienced negative feelings as a result of the infringement of their autonomy. By extension  our own reliance on this expert opinion cannot be negated as a means of determining the size of the group, along with the deletion of the “indifferent consumers” as set forth in section 41 above.

The Degree of Damage

     43.  We are required to determine the degree of damage, which in this case means the non-pecuniary damage incurred by consumers as a result of drinking milk containing silicon. Assessing the degree of damage expressed in victim’s negative feelings of anger, frustration and insult, and other like feelings caused by the tortfeasor’s wrongful conduct, and determining the compensation owing to him by reason of such damage, is no easy task. The reason is that damage of this kind is essentially subjective-individual damage, largely dependent upon the personal emotional barometer of each individual. This point was addressed by Justice T. Or in the Daaka [4] case in his ruling on the specific, non-pecuniary damage incurred by the plaintiff  due to the infringement of his autonomy. He wrote the following:  

The damage in this kind of case involves a predominantly subjective aspect, giving rise to inevitable difficulties in assessing it. Ultimately, the sum of compensation in each particular case, similar to compensation for other non-pecuniary damages, is a matter of judicial discretion, and it is thus determined by making an evaluation based on all the relevant circumstances and the impression of the court. The court must therefore adopt a balanced approach. It should give the appropriate weight to the fact that basic human rights were violated, which dictates an award of appropriate compensation as opposed to a symbolic compensation. On the other hand, considering the difficulties inherent in the procedure of accessing the damage, judicial restraint is required, and exaggerated compensation awards should be avoided.

    If the assessment of non-pecuniary damage for infringement of autonomy poses difficulties in individual cases, the difficulty is multiplied sevenfold when the court is required to assess the damage in a class action, and particularly when it is impossible to locate the members of the group and form an individual assessment regarding each member concerning the intensity of the infringement of autonomy and the subjective negative feelings experienced by reason of the infringement.  The subjective nature of the damage also impedes upon ‘damage averaging’  and for this reason in the U.S.A. there is a reluctance to approve a class action for compensation for non-pecuniary damages (see Allison v. Citgo Petroleum Corp., 151 F.3d 402, 417 (5th Cir. 1998)[42]; Reeb v. Ohio Department of Rehabilitation and Correction, 435 F.3d 639, 650-651 (6th Cir. 2006)[43]; Fuhrman v. California Satellite Systems, 179 Cal. App. 3d 408, 424-425 (1986) [44]  ]; Altman v. Manhattan Savings Bank, 83 Cal. App. 3d 761, 767-769 (1978) [45]; Stilson v. Reader's Digest Association, Inc., 28 Cal. App. 3d 270, 273-274 (1972)[46]; Birnbaum v. United States, 436 F. Supp. 967, 986 (1977) [48].

See also the comments of Justice A. Proccaccia in a minority opinion in the decision on the application for certification, 697.

In Israel, this approach was rejected by Justice Naor, with whom the Deputy President S. Levine concurred. In the application for certification, Justice Naor held as follows:

The court will not award penal compensation in a class action, and similarly will not rule compensation without proof of damage, other than as specified in item 9 of the Second Schedule. However, the aforementioned does not preclude the ruling of compensation for non-pecuniary damage (emphasis added).

 All the same, while there is no impediment in principle to the awarding of non-pecuniary compensation, in the framework of a class action, cases may arise in which the difficulty of determining the rate of damage will justify non-certification of the filing of a class action or its dismissal on its merits (regarding this, see the case law of the district courts before and after the enactment of the Class Actions Law (CC (TA-Jaffa) 388/96 Yaari v. Israel Lands Administration, [   ] s. 6 (e) and (f); CC  (TA-Jaffa) 2331/06 Lubinsky v. Nazrian, [    ] 5- 6  ; CApp (Naz.) 1528/05 Barzilai v. Frinir (Hadas 1987)  Ltd,[    ]s. 27.2  (d). On the other hand, see CC (TA-Jaffa) 1586/09 Hayyut v. Telran Immediate Messages Ltd [   ]para. 4 (b) (5); CC (TA) 1341/00 Mazal v. Discovery International Modelling Agency Ltd [   ].

44. In our case, the Lower Court deemed that the difficulties in assessment of damage by reason of it being pecuniary damage and by reason of the practical difficulty of locating the members of the group and forming an individual impression of the damage caused to each one of them, do not justify the dismissal of the class action.  For purposes of assessing the damage and fixing the compensation, it resorted to the specific mechanisms of s.20 of the Class Actions Law,  and fixed the complex model for compensation that we described above, and in accordance with which it ultimately determined the remedy.

In this appeal, Tnuva again argues that our concern is with tortuous compensation that is generally assessed on an individual basis, and that given the representative plaintiff’s failure to prove the precise damage caused to each member of the group, the Court erred in its failure to dismiss the suit for that  reason. Tnuva further claims that the damage in this case does not admit of “uniformity"” because  the degree of damage incurred by each consumer differed, hence it argued that the sum awarded by the Court to each member of the group (NIS 250) was arbitrary and with no evidentiary grounding and should thus be set aside.

The representative plaintiffs claim on the other hand that the Lower Court rightly determined that this case admits of  an “average reasonable compensation” which when multiplied by the number of the members of the group would constitute the overall sum of compensation and that its determinations in this regard are consistent with the legislative intention as well as with the American case law in this context. However, their claim is that the sum per individual as determined by the Court is too low and in their appeal they seek to fix it at a minimum of NIS 8000, in view of the Court’s own determination to the effect that had it been confronted with an individual claim, this is the sum that is could have awarded for non-pecuniary damage.

45.  Section 20 of the Class Actions Law, titled “ “Proof of Entitlement to Remedy and Payment of Pecuniary Compensation” provides as follows:

(a) If the Court decided all or part of a class action in favor of all or part of the group in whose name the class action was conducted, than as part of its decision to award pecuniary compensation or other relief to members of the group it may make, inter alia, an Order specified below, as the case may be, on condition that doing so will not place an unnecessarily heavy burden on members of the group or on the parties:
	(1) to pay pecuniary compensation or to provide some other relief, at a rate and in a manner that it will prescribe, to each member of the group whose entitlement to the said compensation or relief has been proven;
	(2) that each member of the group prove his entitlement to the compensation or other relief;
	(3) to pay pecuniary compensation in an overall amount and how to calculate the share of each group member, on condition that the total compensation can be calculated exactly on the basis of evidence before the Court: if the Court ordered compensation to be paid in a said overall amount, then it may order how the remaining amount is to be divided among the members of the group in proportion to their damage, if one or several members did not claim their share, did not prove their entitlement to compensation or relief, were not located or could not be paid their share for some other reason; however, no member of the group shall receive pecuniary compensation or other relief in excess of the full compensation or relief due to him; if, after the said distribution to the members of the group an amount is left, then the Court shall order it to be transferred to the State Treasury.
(b) If the Court ordered that every group member prove his entitlement to pecuniary compensation or other relief, then it may make Orders about:
	(1) how and when entitlement shall be proven by members of the group and how it is to be divided, and for that purpose it may appoint a person with suitable qualifications (in this section: the appointee); if the Court decided to appoint an appointee, then any person who deems himself injured by an act or omission of the appointee may apply to the Court that ordered the appointment and the Court may approve, cancel or change the act or omission and make any Order on this matter, all as it finds proper; the appointee's pay and expenses, as well as how they shall be paid, shall be prescribed by the Court;
	(2) the payment of expenses to a group member, in an amount to be set by the Court or by the appointee, for the trouble involved in proving entitlement to the said compensation or relief.
c) If the Court concluded that, under the circumstances, pecuniary compensation for all or some members of the group is not practical, either because they cannot be identified and the payment cannot be made at a reasonable cost, or because of some other reason,

In the  Reichart [9] case, Justice Adiel pointed out in that in class actions there are a variety of methods of determining the damages, which are applied to a broad range of circumstances and in addressing the provisions of section 20 of the Class Actions Law he stated that:

…[O]n the other hand the point of departure may be the means of proof prescribed in s. 20 (a) (2) of the Class Actions Law….

whereby damage is proved by affidavits filed by each member of the group. Additional means of proof, essentially similar to the individual process, are based on the determination of damage for each member of the group, but without the conduct of the detailed process of filing affidavits, but rather by a general calculation based on undisputed factual data or admitting of simple proof.  Naturally, the two methods may be combined by drawing up a general formula to be applied to each individual of the group, in accordance with data specifically concerning him. On the other hand, there are additional ways of determining compensation, based on determining an overall sum of damages that was caused to the group in its entirety, using the methods outlined above. Finally, in cases in which the damage cannot be calculated (even where it is undisputed that it was incurred) there is the possibility of determining the sum of compensation by way of estimate (para. 67 of his opinion).   

    Justice Adiel further noted that Israeli law, similar to American law outlines two principal methods for determining damages in class actions. The first is the individual calculation whereby the damage is determined giving distinct consideration to each member of the group. According to this approach, after establishing the responsibility of the defendant in the question common to all of the group members, a separate decision is made regarding the damage caused to each one of its members and the cumulative sum of damages proved by the group members will constitute the sum of the defendant’s final liability.  This method of calculation is anchored in s. 20 (a) (1) and (2) of the Class Actions Law, cited above. Its advantage is that is consistent with the method of compensation prescribed in the General law and the principles of rectificatory justice on which it is based. It is generally involves the acceptance of affidavits from the group members or a calculation based on undisputed factual data or such as admits of simple proof (see Reichart [ 9 ], para. 67). In American law various additional  mechanisms were established, intended to assist in the individual assessment of damages in an efficient and economic manner (see e.g. Bates v. UPS 204 F.R.D. 440, 449 (N.D. Cal. 2001) [48] – the conduct of separate actions following the date of establishing the tortuous liability); Olden v. LaFarge Corp. 383 F.3d 495, 509 (6th Cir. 2004) [49]- the appointment of an expert whose role was to conduct separate hearings for each victim).  Some of these found their way into Israeli law (see se\. 20 (b)(1) of the Class Actions Law (see E.S.T  Project Management[6], pp.. 246-347; and Tetzet  [8], 788)

46.  Given the advantages of the approach based on individual calculation, it would seem that it is to be preferred or purposes of determining the remedy in class actions, to the extent that it is possible and this indeed was the approach taken  by the court in Reichart where it stated that “inasmuch as our case enables the determination of damages on an individual basis, I see no grounds for taking the path of the overall calculation (see Reichart para. 72). However this approach is not always applicable. The difficulty in applying it arises for example when the group members cannot be identified or located; when under the circumstances it is not possible to present data or documents sufficient for proving individual damage; when the damage incurred by each member of the group is minimal and presumably the group members or most of will be  unwilling to cooperate for purposes of proving it on an individual basis. Likewise, where the clarification of the individual damage caused to each one of the group members requires the investment of expensive resources and considerable judicial time  which have no justification under the circumstances, (see Steven Goldstein “The Class Action Suit – For What and Why” Mishpatim  9 (5739 416, 430 – 431) (hereinafter:  Goldstein))

The first difficulty that we addressed, of locating the members of the group is characteristic of representative plaintiffs in consumer matters (see decision in the certification application, p. 685) and  as mentioned, this difficulty also arose in our case given the impossibility of locating all of the consumers who consumed long lasting low fat milk during the relevant period. In confronting difficulties of this nature and others, some of which we mentioned, American law developed a second method of calculation – the method of overall calculation which was also adopted in Israeli law. According to this method, a “group compensation” can be determined on the basis of the damage caused to the group as a whole, even if the damage incurred by each member of the group was not proved prior to the determination of the overall compensatory sum. The purpose is to prevent the frustration of the goals of the class action in cases in proving individual damage is problematic. In the same vein, there were cases in which American case law resorted to “hybrid mechanisms” such as: an expert using a statistical formula to calculate the damages of the group members; an expert who conducts hearings and individual evaluations in relation to a representative sample of victims  (Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767, 782-787 (9th Cir. 1996)[50](even though it appears that the use of this mechanism was restricted in a recent case: Wal-Mart Stores, Inc. v Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) [51] (hereinafter  Wal-Mart); the division of the group into sub-groups bearing typical features and the determination of an overall compensatory sum for each sub-group (see also LabA (NLC) 633/08 Erez v. Gal Maton Newspaper Marketing and Distribution Ltd [23], para. 18 (11 January, 2011)

The development of the system of overall calculation in American law began with the establishment of the Fluid Class Recovery mechanism (FCR), dwelt upon by the District Court in its decision. In its classical format, this is a three stage mechanism intended for compensation of the group members, and was described by the Californian Supreme Court as follows:

First, the defendant's total damage liability is paid over to a class fund. Second, individual class members are afforded an opportunity to collect their individual shares by proving their particular damages, usually according to a lowered standard of proof. Third, any residue remaining after individual claims have been paid is distributed by one of several practical procedures that have been developed by the courts" (The State of California v. Levi Strauss & Co. 41 Cal. 3d 460, 472-473 (1986)

       (hereinafter: Strauss)

The first stage of this mechanism is the determination of the sum of the group compensation which the defendant must pay and which he will deposit in a special fund established for that purpose.  At the second stage members of the group are given an opportunity to prove (at level of proof lower than the accepted level in personal suits)  the individual damage and in doing so receive their portion as personal compensation. At the third stage the balance of the sum is allocated in accordance with the various models that were developed by the court for that purpose. It is quite apparent that the three stages of the FCR process described do not provide an answer to all of the difficulties we mentioned. For example, in cases which preclude a determination of the sum owing to each member of the group, or such as the case before us, in which there is no possibility of locating the members of the group.   In order to provide a solution for these cases American law developed a variety of methods that deviate from the classic FCR model, some of which will be considered in what follows, along with the challenges raised against them, as we will presently show. (until here Case Review)

47.  In Israeli case law, the overall calculation approach was mentioned as a possible method of calculation already before the enactment of the Class Actions Law. For example, Justice (former title) Cheshin wrote in the Barazani Further Hearing [3] that: "Where awarding separate compensation for each of the group members is not practical, the court is permitted to obligate the defendant to pay compensation using special compensatory systems or other remedies, as it deems appropriate, provided obviously that the defendant is not compelled to pay more than the damage that was actually incurred" (ibid, at p. 425. See LCA E.S.T.  [5]; the decision on the certification application, at pp. 685-688; CC (TA – Jaffa) 2036/01 Mannela v. Mifal HaPayis  [  ]  para. 8). The mechanism of the overall calculation method was further established as part of the individual arrangements interspersed among the various legislative acts and by force of which class actions could be brought in the past (see e.g. the provisions established in s. 216 (b) of the Companies Law, 5759-1999; in s. 46I of the Restrictive Trade Practices Law, 5748; s. 16 I of the Banking (Customer Service) Law 5741-1981). This mechanism appears in s. 20 (a)(3) of the Class Actions Law, that as mentioned, replaced the individual arrangements and which regarding this matter states that the court may rule that:

"payment of pecuniary compensation in an overall amount and how to calculate the share of each group member, on condition that the total compensation can be calculated exactly on the basis of evidence before the Court…."

Furthermore, s. 20 (a)(3) of the Law contains a provision regarding the division of the compensation according to which in the event of a balance remaining after the distribution of the compensation to those victims who proved their damages and claimed compensation, it will be allocated proportionately between the group members, "provided that no member of the group shall receive pecuniary compensation or other relief in excess of the full compensation or relief due to him" and in that case the balance will be transferred to the State Treasury.

This provision is essentially similar to the classic format of the FCR mechanism mentioned above, and it enables the Court to determine overall compensation subject to the conditions prescribed in the section. In  Reichart  [   ] the court emphasized in this regard that the condition for the determination of overall compensation under s. 20 (a) (3) of the Law is that "the sum of overall compensation admits of precise calculation based on evidence before the court", and the court further added that "in terms of the principles for calculating the damage and its manner of determination, including the evidentiary law concerning weight and admissibility, there is no substantive difference between the methods used for an overall calculation and the methods used  for establishing individual damage…". The court further stressed in Reichart  [9] that even at the stage of allocating compensation among the group members consideration may be given to special individual data that is proved with respect to its individual members (para. 64 of the decision).

The difference between the various alternatives established in s. 20(a) relating to the manner of calculating the compensation and its allocation among the group members is that in first two alternatives (s.s. (1) and (2) the method of calculating damage  proceeds from the individual to the general, and the sum imposed on the defendant is the sum total  of the amounts to be received by each one of the group members.  In the third alternative, on the other hand (s.s. (3))  the process is reversed in the sense that initially the overall sum for the which the defendant is liable is determined, after which  that sum is allocated between the group members in accordance with the court's instructions, and subject to the caveat that overall compensation will not be awarded unless admitting of precise calculation based on the evidence before the court.

   48.  We already mentioned that the classic format of the FCR mechanism did not resolve all of the problems that arose in American Law concerning entitlement to a remedy and pecuniary compensation in class actions. This is also true with respect to the overall calculation method prescribed in s. 20 (a)(c), under the inspiration of that mechanism. The Israeli legislator was aware of this and hence added further mechanisms in s. 20 (c) of the Class Actions Law for determining remedies in class actions. Given the importance of this section for our purposes, we will again present the provision verbatim, which provides as follows:

"If the Court concluded that under the circumstances pecuniary compensation for all or some of the members of the group is not practical either because they cannot be identified and the payment cannot be made at a reasonable cost or because of some other reason then it may order other relief to be given for the benefit of all or part of the group or for the benefit of the public, as it deems appropriate under the circumstances of the case"

Is the court's permission to grant a remedy under this section "for the benefit of all or part of a group" or "for the benefit of the public" subject to the conditions enumerated in s. 20(a)(3) of the Class Actions Law, including the condition concerning "exact calculation" of the sum of overall compensation, as argued by Tnuva?.

The Lower Court dismissed this claim and ruled that:

Section 20 (a)(3)  [enables] the calculation of the overall compensatory sum for the group, and the waiver of individualized proof of damage. However, this is still considered as personal  compensation or a remedy for those members of the group who can be located and whose entitlement was proved, by way of allocating the sum of overall compensation between the those members. This must be clearly distinguished from the additional possibility at the court's disposal under s. 20(c ) of the Law, to rule a relief for the benefit of all or part of the group  or for the benefit of the public in those cases in which the Court concluded that under the circumstances pecuniary compensation for all or some of the members of the group is not practical either because they cannot be identified and the payment cannot be made at a reasonable cost or because of some other reason" (para. 104 of the decision, emphasis in source).

   Thus, according to the approach of the Lower Court s. 20(a)(3) of the Law establishes an independent for the determination of remedies and compensation in collective suits, existing alongside the other tracks prescribed in this context in s. 20(a)(1) and (2) and in s. 20(a)(3).  The Lower Court further added that in any case it was also unable to accept the interpretation that Tnuva attempted to give to the requirement for “precise calculation” included in s. 20(a)(3) of the Law, writing that:

Regarding that requirement for “precise calculation” of the overall sum of pecuniary compensation, it bears note that this requirement is implemented in a liberal manner in the U.S.A.  and it would seem that the legislative intention in Israel was to the take the path of American judicial experience. As noted by Hon. Justice Adiel (paras. 63 and 67) the overall calculation in U.S.A. relies on statistical calculations,  such as sample testing, or the use of mathematical models, which by definition do not lead to a “precise” calculation of the damage caused to the group. Likewise, and this point too was mentioned by Judge Adiel, the overall calculation system is used to overcome the difficulty of “simply calculating the damage of each individual of the group”, for example, in the absence of admissible documents or the difficulty of locating all of the members of the group.  Likewise, there is a difficulty in “precisely” calculating non-pecuniary damage, which necessarily involves estimation. Under these circumstances it is clear that the calculation of the compensation cannot be mathematically precise, and this was not the legislative intention. It is further important to point out that the requirement for “precise calculation” of the sum of the overall compensation was established in section 20(a)(3) of the Law, which deals with personal  compensation, for the group members, but not in s. 20(c) of the Law which relates to the a remedy for the for the benefit of the group (para. 100 of the decision, emphasis in source).

 49.   I accept the Lower Court's  position that the mechanisms of s. 20  (c ) of the Class Actions Law are intended to provide an answer for those cases in which it is not possible to precisely calculate the damage and distribute it according to one of the mechanisms prescribed in s. 20 (a) of the Law. Indeed, contrary to the position presented by Tnuva, s. 20(a) is not limited to difficulties in distributing the compensation between the members of the group ("because they cannot be identified and the payment cannot be made at a reasonable cost"). Section 20 (c) of the Law enables the award of a flexible remedy "for the benefit of the group" or "the benefit of the public" even in cases in which the awarding of compensation to the members of the group is not practical "for some other reason". Another reason of this kind may exist in those cases that preclude a precise calculation of the overall damage given that the data indicating the damage are not external data, such as a price hike of defined sum, but rather a collection of individual damages the precise proof of which depends on the testimony of each and every member of the group and  obtaining these testimonies is problematic – by way of example – if there is no possibility of identifying the members of the group.  In that situation, adherence to the regular rules of compensation in tort would frustrate the rationale and the underlying goals of the institute of the class action, which is intended to "protect the interest of the individual harmed who does not bother bringing an action; it represents a public interest in enforcing the provisions of the Law of which the class action is a part; it has a deterrent value against the violation of Law; it prevents the abuse of power by holders of control, whose portion of the capital is occasionally totally disproportionate to their power, and hence prevents manipulations at the expense of the "small investor"; it saves resources and prevents the multiplicity of suits" (CA 2967/95 Hanan Vakshet Ltd v. Tempo Beer Industries Ltd [24] at p. 323. See also the goals enumerated in s. 1 of the Law). It is for these reasons that the Class Actions Law outlines special arrangements that "occasionally deviate from the regular law and leave a broad margin of discretion for the court) Hanan Vakshet Ltd v. Tempo Beer Industries Ltd (as per President D. Beinisch, para. 6 of her opinion).

Structural failures of the kind discussed above in terms of the ability to prove "by precise calculation" the overall damage that was caused to the group or the individual damage caused to each member of the group, are particularly typical of consumer class actions. In cases of this kind there is an increased risk that the tortfeasor will profit and the profits reaped as a result of the tort committed will remain in his hands purely because of the difficulty of arriving at a precise calculation of the damage  which is spread over a large group of victims who cannot be identified (see Deutch, "A Decade for the  Class Action Suit", 33). American case-law refers to these profits as "ill-gotten gains". Regarding the justification for deviating from the classic principles of rectificatory justice in tort in this context, the Supreme Court of California wrote the following in the aforementioned Strauss case:

Fluid recovery may be essential to ensure that the policies of disgorgement or deterrence are realized. Without fluid recovery, defendants may be permitted to retain ill gotten gains simply because their conduct harmed large numbers of people in small amounts instead of small numbers of people in large amounts" (Strauss, p. 472).

50.  Indeed, s. 20 (c) of the Class Actions Law deviates substantially from the correlative principle underlying the regular principles of compensation which mandate total correlation between the circle of victims and the circle of the compensated. Compensation funds are not transferred to the victims and are used for "the benefit of the group" as such or "the benefit of the public", the assumption being that the victims  will derive indirect benefit. As such, the victims' interest in receiving compensation for the damage incurred is not realized in full.  However, from the victim's perspective the alternative of no remedy at all being awarded would support the award of a  remedy for the benefit of the group or the public, because partial and indirect benefit is preferable to not receiving any remedy at all.

A similar rationale also underlies the developing trend  that has developed in general Tort law, other than in the context of the class action, in cases of repetitive tendency. This tendency reflects the recognition that when applying the balance of probability rule in examining the causal connection between the acts of a particular tortfeasor and the damages caused to the victims at large it is preferable to promote the principle of rectificatory justice, even by way of cy pres comme possible, because the application of the principle in the classical sense, will in many cases achieve a result that is altogether remote from the restoration of the status quo ante.  This point was addressed  by Deputy President E. Rivlin in FHC 4693/05 Carmel Haifa Hospital v. Malul  [25] where he noted:

…in certain cases the principle of rectificatory justice  should be adjusted so that it focuses on the overall picture and not just on the isolated claim of a particular plaintiff before the court.  This enables a harmonization between the conception of rectificatory justice and the notion of relative compensation (para. 52 of his opinion. See also in para. 48 of Justice M. Naor's opinion).  

If the general law of tort is prepared to deviate from the principle of correlativity in suitable cases then a fortiori  it is both appropriate and correct to do in class actions. This is because in the class action and primarily those concerning consumer wrongs, the fundamental principle and goal that we seek to realize focuses on the achievement of effective and efficient deterrence against the dealers who breach the law and the consumers' rights ( see Deutch. "A Decade for the  Class Action Suit", 33). For otherwise the ones who profit are the tortfeasors who are large bodies that provide services to immense numbers of clients, and as such spread their damages among a large group of victims whose identity is not known, and their ill-gotten gain will remain in their own hands.  Redressing the injury caused to the individual victim on the other hand, is a less dominant interest in the class action given the fact that in most cases the damage caused to the individual consumer is relatively minor.

   Regarding the awarding of a remedy in the area of class actions in the U.S.A. by application of the principle of cy pres comme possible which originates in the laws of trust and means "as near as possible" and is also referred to as "next best recovery" see Natalie A. DeJarlais, The Consumer Trust Fund: A Cy Pres Solution to Undistributed Funds in Consumer Class Action, 38 Hastings L.J. 729 (1987); Stewart R. Shepherd, damage Distribution in Class Actions: The Cy Pres Remedy, 39 U. Chi. L. Rev. 448 (1972))for a critique of the expansive application of this principle, see  M. H. Redish, P. Julian & S. Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative And Empirical Analysis, 62 Fla. L. Rev. 617 (2010) (hereinafter" Redish).

Hence, in terms of policy considerations both those anchored in the general rules of tort and those specific to the laws of class actions, we should strive to ensure that inability to identify the victims does not create an insurmountable obstacle to filing a claim in court (see A. Porat, "Collective Liability in Tort Law", Mishpatim 23, 311, at pp. 384-385), and see also comments of Justice E. Mazza in Barazani Further Hearing [3], at pp. 449 – 451).  In this context, for purposes of the class action proceedings the possibility of awarding a remedy for the benefit of a group or the public as established in s. 20 (c ) of the Class Actions law constitutes an important component.    

51.  All the same, we should not forget that another one of interests to be pursued in the class action proceeding is that of fairness to the defendant and protection of his substantive and procedural rights. From this perspective, and given that our concern is with a monetary remedy, we are obligated to ensure that the relaxing and flexibility of the procedural rules anchored in the Class Actions Law do not produce a situation in which obligation imposed upon him exceeds the sum of the damage that he caused) (regarding the dismissal of the motion to certify a class action inter alia by reason of this concern, see McLaughlin v. American Tobacco Co. [53 ]. Indeed, from the tortfeasor's perspective less importance attachés to the question of how the compensation is distributed. His substantive interest concerns the extent of the sums that he will be obliged to pay, and less with the question of how they are utilized thereafter. The desire to protect the interest of the defendant as mentioned underlies, inter alia, the provisions of the s. 20 (e) of the Class Actions Law, which negates the awarding of exemplary damages against the defendant and also negates the awarding of compensation without proof of damages (apart from in a suit in accordance with s. 9 of the Second Schedule). Another balance between the public interest of the victims on the one hand, and the defendant's interest on the other hand may also be found in the provision of section 20 (d)(2) of the Class Actions law in accordance with which in the awarding of the remedy the court may also have consideration for "the damage that is liable to be caused – by the payment of compensation, its amount or the manner of its payment – to the defendant, to the public that uses the defendant's services or to the general public by damaging the defendant's economic stability, as opposed to the expected benefit for members of the group  or for the public".  Parenthetically, it should be noted that Tnuva did not make any claims in court in reliance on the provisions of s. 20(d) (2) of the Law. It was for this reason that the Lower Court found no reason to consider these provisions and there are no grounds for us to address them at the appeal stage.

52.  American case-law offers a variety of approaches to the question of whether and under what circumstances the sum of compensation in class actions can be determined other than by a precise calculation. Some have contended that where there is no possibility of determining the overall sum in a precise manner, there are generally no grounds for using the FCR doctrine (on this interpretation of the FCR doctrine, see Michael Malina, Fluid Recovery as a Consumer Remedy in Antitrust Cases, 47 NYU L. Rev. 477, 488-491 (1972)). All the same, in order to resolve the difficulties that arise in this context the various U.S.A. courts, the courts have developed statistical mechanisms that enable the evaluation of the damage caused to a group, while waiving to certain degree the demand for "precision" (hence  damage was determined in relation to the average wage which was determined based on statistical means, see: Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) [54]; Stewart v. General Motors, 542 F.2d 445 (7th Cir. 1976)[55]; Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th Cir. 1973)  [56]; United States v. Wood, Wire & Metal Lathers Int. Union, Local Union 46, 328 F. Supp. 429, 442 (S.D.N.Y. 1971)[57].  Similarly, the court enabled proof of damage by way of sampling and by means of other statistical methods. See e.g. Hilao v. Estate of Ferdinand Marcos [50].  For a different approach see Hood v. Eli Lilly & Company 671 F. Supp 2d  397, 434-453 (E.D.N.Y. 2009)  453 [58].

In Another case  (Long v. Trans World Airlines, Inc. 761 F. Supp. 1320 (N.D. Ill. 1991 [[59]) the court wrote that:

"Defendant has no "right" to an individualized determination of damages for each plaintiff; the desire for accuracy must be balanced against other factors such as the burdens of discovery in relation to the size of the individual claims." (Id. at 1327).

Even among scholars it has been contended that creative use should be made of "aggregate proof) in order to assess the rate of collective damage caused to the members of a group. This was noted by the scholars A. Conte & H.B. Newberg, in their book Newberg on Class Actions (Vol. 3, 4^th ed.2002):   

"There are occasions when it is feasible and reasonable to prove aggregate monetary relief for the class from an examination of the defendant's records, or by use of a common formula or measurement of damages multiplied by number of transactions, units, or class members involved, or by reasonable approximation with proper adherence to recognized evidentiary standards". (Id. 476).

53.  The interests we have examined that underlie the class action lead to the conclusion that where a remedy is awarded for the benefit of a group or the benefit of the public under s. 20 (c ) of the Class Actions Law, we should aspire to ensure that the overall sum of liability is consistent with the overall damages caused by the defendant. In order to determine this sum there is no impediment to adopting a method of estimation, which is an accepted and recognized method in our system for quantifying damages  in cases in that do not admit of precise calculation of the  damage incurred by the individual victim. This point was addressed by this Court in CA 355/80 Anisimov Ltd v. Tirat Bat-Sheva Hotel  [26],:

In those cases, in which, the nature and character of the damage, enable the production of accurate data, the victim-plaintiff must do so, and should he fail to do so damages will not be awarded to him. On the other hand, in cases in which the character and the nature of the damage render it difficult to prove the degree of damage and rate of compensation with certainty and accuracy, it will not frustrate the victim's claim, and it will suffice if adduces such data as can reasonably be obtained, while granting discretion to the court to make an estimate that supplements that which is missing  (p. 899).  

It was further ruled that in appropriate cases statistical data can be used for determining the scope of the damage (see; Rivlin, Shani, at pp. 506 – 507), and the expert opinion. As such, and a fortiori, this method may be used where it concerns a group. All the same, it is stressed that the evaluation of the damage by estimation does not mean the determination of an arbitrary amount which seems to be no more than a guess, and the court using its discretion in such a case must base the sum it determines upon  appropriate anchors that enable the evaluation of damage by way of estimation, as stated (see Daaka [4] at p. 583, Barak Erez, 277).

54.  The non-pecuniary damage which the Lower Court was requested to award in this class action is in the genre of damages the nature and character of which  do not admit of precise calculation and in cases of individual claims too, will always be subject to the court's estimation (apart from compensation claims for road accidents in respect of which the Compensation for Road Accident Victims (Calculation of Compensation for Non-Pecuniary Damages)  Regulation 5736-1976 (hereinafter Road Accident Regulations), prescribes  formula for determining non-pecuniary damage as a derivative of the rate of disability and a ceiling sum determined in the ss. 4 (a)(3) and 4 (b) of the Compensation for Road Accident Victims Law, 5735-1975). Regarding the essence and the methods for calculating non-pecuniary damage in differing contexts, see CA 4022/08 Agbaba v. Y.S. Company Ltd [27], paras 10 – 24;  C.A. 754/05 Levi v. Share Zedek Hospital [28]).

In s. 20 (e) of the Class Actions Law, the legislator authorized the court to  award compensation for non-pecuniary damage caused to the group member. However, the determination of non-pecuniary damage in the present case is no simple task. As mentioned, there is no possibility of identifying the group members who consumed long lasting, low fat milk during the relevant period for the suit, and hence the Court availed itself of statistical data and expert opinions in reliance upon which it reached a conservative, cautious determination that the group comprised 220,000 members. We concluded that the reference group for purposes of compensation for damage occasioned by infringement of autonomy is limited to that portion of the consumers group who incurred consequential damage due to the infringement of autonomy and who experienced negative feelings in various forms upon becoming aware that the milk they drank contained silicon.  Our determination regarding the number of group members included in the group of those entitled to the said compensation (154,000) was also based on statistical data and the expert opinions presented in the proceeding. Our concern is therefore with a group numbering over 100,000 people, whom can be neither identified nor located, and even were it possible to locate them, it is doubtful whether it would even be appropriate to instruct each one of them, or even some of them to submit an affidavit specifying the intensity of the negative feelings that they experienced in order to award compensation in accordance with one of the mechanisms established in s. 20 (a) of the Class Actions Law. Given the impossibility of determining compensation based on individuated evidence or precise calculation and the impossibility of identifying the members of the group entitled to compensation, we are left with the compensatory mechanism established in s. 20 (c ) of the Class Actions Law, which enables the determination of overall compensation based on an estimation for the benefit of the group or the public. The question that presents itself is how, if at all, to estimate the "collective" non-pecuniary damage in this case, and whether the fact of its being non-pecuniary damage that is characterized by subjective, individualistic features, should preclude the possibility of "uniformity" in determining the overall sum of compensation, due to the differences between the victims in terms of the results of the damage.

In rejecting Tnuva's claim in this context, the Lower Court ruled that "It is no longer possible to make a sweeping claim that uniform compensation cannot be awarded for non-pecuniary damage, absent the possibility of proving individuated damage" (para. 128) and hence the court fixed the sum of compensation at NIS 55 million, stating that this sum reflects uniform compensation for the sum of NIS 250 for each victim (220,000 X 250) for the non-pecuniary damage caused to the members of the group. The Court further mentioned that had a non-pecuniary compensation for Tnuva's action been awarded in the framework of an individual suit, the sum of the compensation would have been higher, but the court's approach was that this context demanded consideration of the fact that the issue was one of overall compensation being ruled for the group in its entirety or for the benefit of the public, in the absence of the possibility of having consideration for the individual damage caused to each one of its members. In the courts' words:

 [a]fortiori the court does not examine the individual damage of each member of the group, given that  not only is the remedy awarded to the group as a whole, but it is also given to the group and not to its individuals. The court is even entitled to fix the overall sum of compensation for the group based on estimation. This does not mean that the court should avoid the determination of important parameters for purposes of calculating the overall damage. The court must definitely determine the number of members in the plaintiff group, at least by way of estimate. Similarly, the court must assess the scale of the individual damage caused to  each one of the group members, to ascertain that the overall sum of compensation awarded to the group does not exceed the aggregate damage caused to its individuals. However, at the end of the day, the court must determine an overall sum of compensation to be awarded to the group having consideration for the totality of considerations, but it must not ignore the fact that the compensation is not intended as individual =  compensation for each of the group members. The overall compensation  must be commensurate and in proportion to the wrongful act and the circumstances of its commission, even if the division of the sum by the number of group members would indicate a lower rate of compensation by comparison to the rate of individual compensation that would have been awarded had a personal claim been filed against the defendant by reason of that tort.   

Granting the plaintiffs' request would have meant determining Tnuva's liability for an overall sum of NIS 1.76 billion (NIS 8000 X 220,000 members of the group). It is absolutely clear that this result is unreasonable and unrealistic. Having considered all of the circumstances as set detailed above, I determine an overall sum of compensation for the group of NIS 55 million which reflects an estimated rate of damage for each members of the group of the sum of NIS 250. This degree of damage, and even higher, was most definitely caused to each member of the group, even if only by reason of the infringement of individual autonomy (para, 134 (b) of the decision, emphasis in source).

55. In this appeal, Tnuva challenges the determination of the compensation according to the mechanism prescribed in s. 20 (c ) of the Law, arguing that  given the type of the damage (non-pecuniary damage, with subjective-individual features), and given the impossibility of proving the damage to the group in terms of its individual members due to the impossibility of identifying its members, there were no grounds for determining uniform compensation for the group, even at a minimal rate  NIS 250 for each individual). On the other hand, Raabi claims that given the Court's view that the appropriate compensation for the infringement of autonomy had it been a personal suit was not less than NIS 8000, it should have awarded that rate of compensation multiplied by the number of members in the group (which was similarly challenged on the part of Raabi, as detailed above), and the fact that such a significant figure was received as a result

Indeed, in cases in which there is significant differentiation between the group members it may yield the conclusion that the matter is not suited for adjudication as a class action (see s. 8 of the Class Actions Law; CA Reznik v. Nir National Cooperative Association for Workers Settlement  [29] paras. 24 – 27 (hereinafter: Reznik), See also LabApp (Nat.) 425/00 Goldberger v. Guards Association Ltd  [    ] para. 8 ; Civ.App. (Naz) 1528/05 Barzilai v. Ferinir (Hadas1987 ) Ltd (para. 27.2) [  ]; on the other hand, see TM 105/06 (CivApp.30858/06) (Tel-Aviv-Jaffa) Feldman v Municipalities Sewage Association (Dan Region) para. 52 ; CF (Tel-Aviv-Jaffa) 2719-06 Levi v. Israeli News Company Ltd para. 17; and see also Klement, "Boundaries of the Class Action", at pp. 345-346).   It would seem however that the claim concerning differentiation between the group members has the power to bring about the non-certification of the suit as a class action and even its rejection if certified, in those cases in which the differentiation has implications for the establishment of liability or even the very existence of an actionable cause.  The main concern in this context is that it may prejudice the defendant's right to a fair proceeding and to be able to defend himself against each and every one of the group members. This happened in the Resnik [29] case where the defendants raised the prescription claim, the decision on which was not necessarily identical with respect to each and every member of the group, and for that reason the court did find grounds for its certification as a class action.  In that case Justice Gronis stated that "Certain solutions for the absence of homogeneity between the group members are found in ss. 20 (a) – (c) of the Class Action Law, that includes provisions  regarding the remedy that will be awarded by the court".  The court further added that it was not required to rule on the question of the "cases in which the suit should be certified as a class action notwithstanding the existence of individual features, by having resort to the mechanisms of s. 20 of the Class Actions Law, or other solutions" but it still saw fit to stress that there are cases in which "these solutions are unable to provide a solution" and as a result they cannot be certified for filing  as a class action (ibid, para. 27). The issue of differentiation (the foundation of commonality) between the group members was likewise the subject of discussion in  recent decision of the Supreme Court of the U.S.A in the Wal-Mart  issue. In that case a request for certification of a class action was filed in the name of a million and a half employees of the Wal-Mart network based on illegal discrimination against them as women with respect to matters of salary and promotion.  The trial instances and the appellate instance certified the suit as a class action Dukes v. Wal-Mart Stores, Inc. [51] . The Supreme Court however reversed the decision, ruling that the suit should be be certified in view of the plaintiffs' failure to prove that the company had conducted a general policy of discrimination, in other words, it failed to prove the existence of a grounds for claim regarding every single group member. It also held that under the circumstances it was not possible to calculate a compensation sum by statistical methods and by way of a representative sampling, inter alia  in view of the defense claims in the law itself, which the company was able to raise regarding each and every company in the group.

Tnuva's argument concerning differentiation is to no avail in our case.  Its argument relates exclusively to negating the possibility of awarding uniform compensation for the non-pecuniary damage sustained by the group members under the circumstances, in view of what it claims is the lack of uniformity among the victims in this context.  In the Court's eyes, this differentiation did not justify the non-certification of the suit as a class action and I concur with the stance of the Lower Court that neither does it preclude the award of a remedy after the clarification of the class action that was certified as stated.   First, even in suits that are not conducted as class actions in which there are multiple plaintiffs, such as suits for building defects, the court does not refrain from awarding uniform compensation by way of estimation for the non-pecuniary head of damage (on "uniformity of damage" for mental anguish in regular suites filed on behalf of a number of plaintiffs, see the district court decisions cited in para. 121 of the decision). Second, as distinct from differentiation among the members of the potential group, that may have implications for the existence of an actionable cause and the basic entitlement of each member to a remedy, where the differentiation concerns the sum of compensation, it finds its solution in the various mechanisms of s. 20 of the Class Actions Law that deal with the remedy that the court is authorized to award. The establishment of these mechanisms is intended to ensure that the differentiation among the group members regarding the determination of the remedy, just like other difficulties in proving damage which stem from the inability to identify or locate the group members, will not frustrate in limine  the clarification of the matter by way of a class action and the realization of the goals upon which this proceeding is based in terms of the public interest and in terms of the group concerned, which we dealt with above at length.  Accordingly, differentiation relating to the rate of the damage, will not  in general prevent the clarification of the class action and the award of a remedy in the framework thereof, including with respect to the award of uniform compensation that will be determined by way of estimation, unless under the circumstances of the particular case prevent the award of an appropriate remedy in accordance with one of the mechanisms set forth in s. 20.

56.       That said, it would not be superfluous to note that differentiation between the group members may occasionally be raised as an argument for denying certification of suit as a class action, or against the award of a uniform compensation in the framework thereof, specifically from the perspective of the potential group members, in those cases in which awarding uniform compensation prejudices the rights of those group members who wish to prove their suit on an individualized basis and thereby merit larger compensation. American case-law treated this concern as a potential violation of due process rights, which  in turn lead to the rejection of the certification applications for class action suits, stressing the fact that the mechanisms established in the relevant statutory provisions do no include the right to opt-out of a class action proceeding, see  - Federal Rules of Civil Procedure,  Allison v. Citgo Petroleum, 151 F.3d 402, 414-415 (5th Cir. 1998) [60]; Lemon v. Int'l Union of Operating Engineers, Local No. 139, AFL-CIO 216 F.3d 577 (7th Cir. 2000) [61]; Jefferson v. Ingersoll Int'l, Inc. 195 F.3d 894 (7th Cir. 2001) [62]; Reeb v. Ohio Department of Rehabilitation and Correction, 435 F.3d 639 (6th Cir. 2006) [63].

For additional cases in which class actions were not certified in the U.S.A. against the background of the differentiation between the group members, see In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990) [64]; Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) [65]. However, in the U.S.A. this approach is not relevant to certification applications for class actions in accordance with legislative provisions that contain mechanisms for an opt-out right.

 Israeli law in this context differs. The Class Action Law mandates the registration of the application to certify the suit as a class action, and the registration of its certification in the Class Actions Register (ss. 6 (a) and 14 (b) of the Law, and irrespective of the nature of the suit each and every group member is entitled to give notice that he does not wish to be included therein (s. 11 of the Law).   Moreover, proponents of the approach that views the group as an entity in its own right have  opined that there is need for a "sacrifice" on the part of each member of the group of with respect to his individual rights as a litigant, in view of his obligation to "tie his fate" with the fate of the group  (see David L. Shapiro, Class Actions: The class as Party and Client, 73 Notre Dame L. Rev. 913, 919 (1998).

The claim raised by Raabi in his appeal concerning the paucity of the uniform sum  that was awarded is not based on the claim of differentiation and the claim that any particular member of the group suffers as a result.  Raabi does not dispute the fact that in this case, in the framework of a class action, it was not possible to clarify the individualized damage incurred by each and every group members nor does he dispute that it was not possible to identify or locate them.  His claim relates solely to the smallness of the sum awarded as uniform compensation (NIS 250), given the fact that the Lower Court expressed its view that had the case been adjudicated as an individual claim it would have been appropriate to award far higher compensation (NIS 8000). Accordingly, Raabi claims that the sum of uniform compensation for purposes of calculating the overall compensation for the benefit of the group should be set at  NIS 8000.

57.  Examination of the Raabi's testimony (pp. 71-81 of the protocol) indicates that over a period of years that included the entire period that was relevant for the class action (23 October 1994 until September of 1995) he consumed significant quantities of  long lasting low fat milk. However, the range of consumers of long lasting milk is varied both in terms of the duration of the consumption period and in terms of the scope of consumption. Hence, it may be assumed that the relevant group includes those who did not consume the milk for the duration of the period, those who consumed it in far smaller quantities than those consumed by Raabi and those who drank fresh milk on a regular basis and who only consumed the long lasting milk that they had purchased on rare occasions, when under various circumstances it served as substitute for fresh milk.  This varied range of consumers of long lasting milk that contained silicon must be taken into consideration when determining the uniform compensation to be awarded for the violation of the autonomy of the group members who suffered consequential damage as a result.  The claim of the  representative plaintiffs' that the group in its entirety should be awarded the same compensation (NIS 8000) that was demanded by Raabi as the main plaintiff, fails to consider the differentiation between the group members that we discussed above, and for that reason alone we can dismiss the claim.   Furthermore, contrary to the position of the Lower Court, even on an individual level I see no justification for awarding Raabi compensation for the sum of NIS 8000 (as valued on the date of the suit) for the damage head of infringement of autonomy. This takes into account the fact that we are no concerned with an infringement of the highest conceivable level and the fact that as distinct from compensation awarded in other contexts of non-pecuniary damage, our concern is with negative feelings experienced by the group members for a limited time, the peak of which was presumably when it became known to those who had consumed the milk, post factum, that it contained silicon.  In other words, the non-pecuniary damage is not of the kind that accompanies the victim for life, such as pain and suffering in the wake of permanent physical disability as a result of medical negligence.  As such I think  that on an individual level too, even where it concerns a permanent consumer of long lasting  low-fat milk for the entire relevant period, the compensation sum awarded for consequential damage (feelings of anger, frustration, revulsion, anxiety, fury etc)  resulting from the infringement of his autonomy should not be exaggerated.  A fortiori, the uniform  compensation to be awarded to the entire group should not be exaggerated, given the differentiation between its members in terms of the scope of the damage and its intensity.

58.  This brings us back to the question of what constitutes the group compensation to be awarded in the case at hand, and whether the path taken by the Lower Court was appropriate for its ruling. As mentioned, the Lower Court concluded that compensation amounting to NIS 1.76 billion, which is arrived at by multiplying NIS 8000 for an individual by the number of group members (220,000), is a result that "is unreasonable and unrealistic" and it therefore set the sum of the overall group compensation at  NIS 55 million, stating that this sum "reflects an estimated individual damage of  NIS 250 for each of the individuals of the group".

In view of the great variety in the group in terms of its habits of consumption of long lasting milk containing silicon and in view of other features of the infringement of autonomy which we discussed above, including: the intensity of the infringement, and the fact that one can imaging higher rates of intensity, and the limited duration of the time during which the members of the group experienced negative feelings, I believe that the sum of NIS 250 can be accepted as a sum that is commensurate for purposes of setting the individual, uniform compensation.  The multiplication of this sum by the number of group members who suffered consequential damage by reason of the infringement of autonomy gives us an overall compensation sum of NIS 38,500,000 (250 X 154,000).   In its pleadings, Tnuva proposed that to the extent that it be obligated to pay compensation, it would be appropriate that the profit it made should serve as a basis for its calculation, indicating that the profit was NIS 1,645,900 in terms of the principal and with the addition of interest and linkage differentials (from the middle of the period)  - NIS 4,981, 616. In principle, this model for calculating compensation should not be negated (on the approach whereby compensation based on denial of the tortfeasor's profits realizes the principle of corrective justice in the law of tort, in appropriate cases, see Ernest J. Weinrib Restitutionary Damages as Corrective Justice 1 Theoretical Inquiries in Law 1 (2000).  It has even been claimed that this model is preferable for class actions in which the compensation awarded is a compensation for the benefit of the public under s. 20 (c ) of the law. This is because in cases like these there is no real correlation between the obligation imposed upon the tortfeasor and the public of those who are compensated, and the purpose of remedying the damages of the victims is not really achieved due to the practical inability to identity the members of the group, to identify them or to compensate them. As such, the emphasis should be placed on the other objectives of the law of tort, including effective deterrence and prevention of unlawful enrichment of the tortfeasor. Indeed, the use of unlawfully obtained profit as a departure point for calculating compensation maintains the correlation between the intended purpose of the compensation and the manner of its calculation. However, even though on the level of principle the model based on the denial of profit for calculating compensation for the benefit of the public under section 20 ( c) of the Class Actions Law  should not be dismissed, it must be remembered that this model is not appropriate and not applicable in all of the cases. For example, it would difficult to apply it in a case which the tortfeasor did not profit as a result of the wrongdoing.  As such, when awarding compensation for the benefit of the public the court must examine all of the data before it, and in accordance therewith to formulate the model best suited for its ruling. In our case, at the very outset Tnuva did not present us with detailed, substantiated and reliable data on the basis of which it would have been possible to examine the possibility of calculating overall compensation based on the denial of profit model.  For example, Hagit Adler (who was employed in Tnuva as of 1996 and who served as the marketing manager when she gave her affidavit), stated that at the time of giving the affidavit (November 2004) “Tnuva does not have ….precise data regarding the rate of profitability of long lasting milk of 1% fat during the relevant period (section 17 of the affidavit). Adler did propose to base the findings in this case on the rate of the profitability of long last milk with 1% fat on the later years (1999 – 2001), but regarding these years too, the only thing that was attached was a page of pricing relating to these years, taken from a document that was not presented in full, the authorship of which is not clear nor the data on which it is based, One of the other possible models or purposes of determining compensation for the benefit of the public, is the model that was adopted by the Lower Court and which we too endorsed. This formula, based on statistical data (regarding the number of victims) and uniform individual compensation, complies – albeit in the form of cy-pres calculation -  with the traditional and accepted method of calculating compensation in torts law. All the same, and given that our concern is with cy-pres calculation, the application of the this model must be subject to the caveat that the cy-pres calculation must be done with the requisite caution and tend to be conservative, so that the sum of overall compensation will not spill over into the realm of punitive exemplary compensation which are not to be awarded in representative suits, pursuant to the legislative fiat in section 20 (e) of the Class Actions Law.

In conclusion, the overall compensation that should be imposed on Tnuva in this case according to the model that we endorsed is fixed at NIS 38, 500,000 as valued at the date of the decision of the Lower Court, (17.10.2008).

The Method for Distributing the Compensation Awarded for the Benefit of the Public

59.       In order to balance between the public objectives and the private objective, American law has formulated a variety of mechanisms for providing a remedy for the benefit of the group in its entirety or for the public benefit, including discount mechanisms (“price rollbacks”); the transfer of the compensation funds to government body by way of their designation for goals that will benefit the actual victims (“earmarked escheat”);  a “consumer trust fund”; and in appropriate cases, the relative participation (pro rata) of the current group members in balance of the funds (“claimant fund sharing” (regarding this, see Strauss, at pp. 473- 476). All the same, there are those who have sharply criticized the use of collective compensatory mechanisms for the public benefit in cases in which it is difficult or impossible to the individually compensate the members of the group (see e.g. Redish; Powell v. Georgia-Pacific Corporation, 119 F.3d 703, 706 (8th Cir. 1997) [66]; In re: Airline Ticket Commission Antitrust Litig, 268 F.3d 619, 625 (8th Cir 2001) [67].Regarding the variety of approaches adopted in American case-law on this matter and the differing approaches to the most optimal correlation between the distributive mechanism and the goals of the particular suit and the interests of the group members, see  In re Folding Carton Antitrust Litig. 744 F.2d 1252 (7th Cir. 1984) [68] ; Houck v. Folding Carton Admin. Comm., 881 F.2d 494 (7th Cir. 1989) [69]; In re Cuisinart Food Processor Antitrust Litig.38 Fed. R. Serv. 2d (Callaghan) 446 (D. Conn.1983) .[70]; Democratic Cent. Comm. v. Washington Metro. Area Transit Comm'n [71]   ], 84 F.3d 451 (DC cir. 1996); In re Domestic Air. Transp. Antitrust Litig,    148 F.R.D. 297 (ND Ga 1993) [72] . 

On the approaches adopted by scholars on this issue, see Newberg, 505-543; Anna L. Durand, An Economic Analysis of Fluid Class Recovery Mechanisms, 34 Stan. L. Rev. 173 (1982); Kerry Barnett, Equitable Trusts: An Effective Remedy in Consumer Class Actions, 96 Yale L.J. 1591 (1987); Christopher R. Leslie, A Market-Based Approach to Coupon Settlements in Antitrust and Consumer Class Action Litigation, 49 UCLA L. Rev. 991 (2002).

See also Goldstein, 430- 431. on the use of systems of collective compensation in the Common law states, see Rachel Mulheron, The Class Action in Common Law Legal Systems: A Comparative Perspective, 426-430 (2004)

As indicated by the provision of section 20 (c ) of the Class Actions Law, the Israeli legislator chose an approach that enables an award of compensation for the benefit of the group as a whole and for the benefit of the public according to a system of collective compensation, even in the cases in which technical reasons preclude individuated compensation for the group members. In doing so the legislator expressed the view that the public goals which the Class Actions Law is designed to serve and which we dwelt on at length above are of no less importance than the private goals and hence the  reason to strive to realize those goals even where various difficulties prevent the proving of the precise aggregate of the individual damages caused to the group and the maintenance of conformity between the public of victims and the public of those who are compensated. At the same time, it is important to note that according to the hierarchy prescribed by section 20 (c ) of the Class Actions Law, preference should be given, to the extent possible, to compensatory mechanisms that reflect such conformity, and even when awarding compensation according to section 20 (c ), in the absence of the possibility of awarding it under sub-sections (a) and (b), every effort should be made to structure the mechanism for distribution of compensation in a manner that achieves at least an element of connection between the public of those compensated and the public of victims.

60.  In the case before us, regarding the distribution of the Lower Court held as follows regarding the distribution of the

“Having consideration for the difficulties involved in the solution of the reducing the price of milk, given the immense sum of overall compensation ruled in favor of the group (NIS 55 million) and for reasons of the benefit of the group and the public – the sum of the compensation should be designated for three essential goals – First, benefitting the group members by reducing the price of the product (or increasing the contents without raising the price); second – research and scholarship fund in the field of food and nutrition which have implications for public health; third - distribution of milk free of charge to populations in need via non-profit organizations so involved (para. 144 (O), of the decision, emphasis in source).

In holding that one of the objectives for which part of the compensation sum should be awarded is the providing of a benefit via a discount from the product price, the Court, by its own account,  was at the every least attempting to establish a group connection between the victims of Tnuva’s conduct and those who would gain from the benefit. However, in our case it is doubtful whether such a connection actually exists. The connection which the Lower Court sought to establish in this context proceeds from the assumption that those who consumed long lasting low fat milk of Tnuva during the relevant period continue to do so today as well. The problem is that there is only a low probability that this assumption actually materialized, inter alia because of the passage of time and changes in consumption habits and even more so when considering our conclusion to the effect that compensation for infringement of autonomy during the relevant period (23 October 1994 – September 1995) should not be awarded exclusively according to objective criteria and the victims group should be limited to those who suffered consequential damage as a result of the infringement and experienced revulsion, frustration, anger, and other similar negative feelings. When supplementing this by the considerable dangers generally involved in a discounts arrangement that requires a detailed examination of the influence manner in which the arrangement affects the relevant market (see Amir Israeli “Settlement in a Class Actions that Infringes Free Competition, in the wake of CF 1012/02 Yifaat v. Delek Motors Ltd   [   ] Hearat Din 2 (2) 112, 118 – 125) (5665), and the need to receive a reconfirmation from the Director of Antitrust (due to the passage of time from the time of that the gave the previous confirmation in this context) it would seem that in the current case it is preferable to waive the allocation of part of the compensation for the purposes of the discounts arrangement and to focus on the two other objectives determined by the Lower Court, which serve worthy interests for the benefit of the public in its entirety. The portion deducted for purposes of the discount arrangement will be divided equally between these two objectives and hence the compensation sum shall be distributed in the following manner:

       a.         For the study and research fund – 44.33% and for the distribution of milk products to the needy 55.66%.

       b.         The distribution of the  milk products (and not just long lasting milk that formed the subject of the claim) will be effected over a period of five years from commencement date for the execution of the decision, by way of the 2 non-profit organizations "latet" and “Mishulhan leShulhan”  both of which supply food to dozens of other non-profit organizations around the country, as held by the Lower Court in its decision of 17 June 2009, which gave force to the agreements reached between the parties with the cooperation of the representative of the Attorney General and with his consent, attached to the notification of the parties dated 10 June 2009, in the Lower Court (hereinafter: “the supplementary decision”).

       c.         For purposes of transferring the compensation for research purposes in the field of food and nutrition, a study fund will be established, headed by the Head Scientist of Ministry of Health. The fund management will choose the studies that are to receive scholarships, and will supervise them. The members of the management will be the entities specified in section 6C of the agreements reached between the parties and which were approved in the supplementary judgment.  The intention is to use the entire sum of compensation earmarked for the study fund within 5 years, unless it becomes necessary to use the sum thereafter as well, in keeping with the Lower Court’s decision in the supplementary decision.

       Compensation for the Representative Plaintiffs and

    61.          In its partial decision and its supplementary decision the Lower Court ordered the payment of compensation and advocates fees to the representative plaintiffs and their attorneys, and all told ordered Tnuva to pay the sum of NIS 500,000 to the Raabi heirs; the sum of NIS 1,000,000 to the Israel Consumer Council and the sum of NIS 2,500,000 to the attorneys of the representative plaintiffs.

       Tnuva argues that according to the criteria outlined regarding this issue in the Class Actions Law, there were no grounds for awarding such high sums to the representative plaintiffs and their attorneys. In this context Tnuva contends inter alia that the involvement of the Israeli Consumer Council in this context was only minimal, that it did not assume any risk and did not require any monetary incentive for acting in consumer related matters.  It further submits that the rate of the compensation and advocates fees awarded is far in excess of the rate awarded in other cases, and that in this context it would have been appropriate to have consideration for the discrepancy between the sums demanded by the representative plaintiffs (who initially set their at NIS 4 billion) and the sum that was finally awarded.

The representative plaintiffs on the other hand claim that there are no grounds for interfering in the rate of compensation fixed by the Supreme Court, which does not deviate from the criteria prescribed by statute and case law in this context. On the other hand, they see cause for interfering in the sum of fees awarded to their attorneys and contents that the considerations that guided the court in this matter were mistaken. Inter alia they argued that there was no basis for the finding of the Lower Court to the effect that "the case was not always handled in "the best and most efficient manner" and that under the circumstances there were no grounds for attaching weight to the discrepancy between the sum demanded and the sum awarded  and that their attorneys invested extensive and intensive work over the years in this precedential case, which is tremendously important from a public and consumer perspective.  As such they claim that an order should be given for fees amounting to 20% of the overall sum of compensation.

62.  The criteria for the determination of compensation for the representative plaintiffs are set forth in section 22 of the Class Actions law, which states:

 

Compensation for the representative plaintiff

22. (a) If the Court decided all or part of a class action in favor of all or part of the group, including by way of approving a compromise, then it shall order compensation to be paid to the representative plaintiff,

taking into account considerations said in subsection (b), unless it concluded – for special reasons that shall be recorded – that that

is not justified under the circumstances of the case.

 (b) When it sets the amount of compensation the Court shall, inter alia, take these considerations into account:

 (1) the effort exerted and the risks assumed by the

representative plaintiff by bringing and conducting the class action, especially if the relief requested in the action is declaratory relief;

 (2) the benefit which the class action yielded for members of the group;

 (3) the degree of public importance of the class action.

 (c) In special cases and for special reasons that shall be recorded, the Court may:

 (1) adjudge compensation to the petitioner or representative plaintiff, even if the class action was not approved or if the  

class action was not decided in favor of the group, as the

case may be, taking the considerations said in subsection (b) into account;

 (2) adjudge compensation to an organization that participated in hearings of the class action under the provisions of section 15, if it found that to be justified by the trouble taken and the  contribution made by its said participation in the hearings.

 

Section 23 of the Law established criteria for the ruling of the legal fees of the representative attorney, as follows

23. (a) The Court shall set the representative attorney's legal fees for conducting the class action, including the petition for certification; the representative attorney shall not accept legal fees in excess of the sum determined by the Court as aforesaid.

 (b) When it sets the representative attorney's legal fees under subsection (a), the Court shall, inter alia, take the following considerations into account:

 (1) the benefit which the class action yielded for members of the group;

 (2) the complexity of the proceeding, the trouble taken by the representative attorney and the risk he assumed by bringing and conducting the class action, as well as the expenses he  incurred for that purpose;

(3) the degree of public importance of the class action;

 (4) the manner in which the representative attorney conducted the proceeding;

 (5) the gap between the relief sought in the petition for approval and the relief adjudged by the Court in the class action….".

   The criteria for determining compensation and legal fees are essentially similar and reflect the desire to incentivize the filing of class actions (on the importance of this consideration see Moshe Telgam, "The Class Action – Considerations for the Determination of Fees and Compensation" Shaarei Mishpat 4, p. 227 (5768). All the same, it should be noted that an overincentive in this context could encourage the filing of trivial suits or "inflated" suits with no justification, given that those filing these suits would be primarily interested in the compensation and legal fees that they could expect to receive (on the negative influence of trivial suits and the attendant concern of a weakening of the standing of the class action, see CA  1509/04 Danush v  Chrysler Corporation [30] para. 15).  An additional, and important criteria for the determination of legal fees, reflected in s. 23 of the Law cited above, is the existence of a commensurate relationship between the legal fees and the effort invested in the suit and the benefit it produced. The Law further adds and prescribes in this context a number of criteria intended to guide the conduct of the attorney of the representative plaintiff' so as to create a positive incentive for conducting the suit efficiently and fairly (see CA 9134/05  Adv. Eliezer Levit v. Kav Of Zafon, Cooperative Association for Services Ltd  [31] para. 12 (hereinafter – Levit), regarding s. 23 of the Law.  And see also AAA 2395/07  Accadia Software Systems Ltd v. State of Israel – Director of Tax and Stamp Duty [32] para. 20 (hereinafter – Accadia);  CA 7094/09 Borozovsky  Conveyancing Ltd v. Ichurn Itur Veshlita Ltd [33] paras 11- 14).  As evidenced by the wording of ss. 22 and 23 of the Law, the list of considerations enumerated is not exhaustive and is intended to outline "general guidelines which attest to the general intention of the law and the objectives it seeks to realize" (see Levitt, para. 12). That said, in general the criteria enumerated in the law may be divided into three principal categories: considerations of expenses, considerations of yield for the group represented, and considerations of public guidance (see Klement, at pp. 158 – 162).

63.  A central question to be considered in determining the rate of compensation and the legal fees is whether the filing of the class action was necessary in order to merit the particular remedy (Levit [31] para. 14). The case before us is a classic example of a case which would not have been decided had it not been for the class action. In determining the compensation the court gave consideration to this central consideration as well as to the other pertinent considerations, indicating that the task of differentiating between the representative plaintiffs was done for the main part by the Consumer Council, and in dwelling on the importance of creating incentives for the filing of suits for the Consumer Council as well. The Court further dwelt on the fact that this case made an important contribution to the group and the public and addressed the protracted time period during which the suit was conducted. Regarding the legal fees to be awarded to the representative attorneys the Court addressed the immense amount of work that they had invested, the tremendous benefit bestowed by the suit itself, its importance for the group and for the public as a whole, and the complexity of the issues raised in the file. At the same time, the Court stressed the gap between the remedies demanded and what was ultimately granted, noting that the suit had not always been conducted in the best and most efficient manner"

The rule that the appellate forum does not interfere in the rate of legal fees awarded by the trial forum applies to and is implemented with respect to the rates of legal fees and compensation awarded in class actions, other than in cases where one of the sums awarded is legally flawed or where the decision of the trial forum is otherwise fundamentally flawed in a manner that warrants intervention (see Accadia [32] para. 28, Analyst [7] at p. 263). The policy of non-intervention in sums awarded as legal fees and compensation by the trial forum is even more appropriate where it concerns considerations pertinent to the manner in which the proceeding was conducted.  In the case at hand, the Lower Court examined all of the relevant considerations and balanced between them as required.  Accordingly, had we not reached the conclusion that the sum of compensation to be imposed on Tnuva should be significantly reduced, we would not have intervened in the sums of compensation and legal fee that it awarded. However, since we set the sum of compensation at NIS 38,500,000 instead of NIS 55,000,000  awarded by the Lower Court I think that this also warrants a reduction in the sum of compensation that Tnuva has to pay to the representative plaintiffs and the legal fees to be paid to their attorneys. I therefore propose that we set the sum of compensation for the Raabi heirs at the sum of NIS 300,000, the compensation for the Israeli Consumer Society at NIS 550,000 and the rate of legal fees for the representative attorneys at NIS 1,500,000. In order to remove all doubt, it is clarified that the sums specified above, like the sum of compensation awarded, are according to their value on the day of the decision of the Lower Court (7 October 2008).

 

       Final Word

For all of the reasons set forth above I propose to my colleagues to partially allow Tnuva’s appeal with respect to the rate of the compensation (CA 10085/08) and its appeal regarding the compensation for the representative plaintiffs and the fees of their attorney (CA 7607/09). I further propose to my colleagues to dismiss the counter appeal of the representative plaintiffs in CA 10085/08 and their appeal against the decision in CA 6339/09)

Under the circumstances and bearing in mind that these appeals raised questions of principle that were fleshed out for the first time since the enactment of the Class Actions Law, I would propose to my colleagues not to make any order for the costs of the appeal proceeding

 

                                                                   Justice

Justice I. Amit

 

 I concur with the comprehensive and thorough judgment of my colleague Justice Hayut. My colleague concluded that compensation for infringement of autonomy should only be awarded to those group members who experienced various negative feelings upon becoming aware that they had drunk milk containing silicon. My colleague's approach is consistent with the view that I expressed in CA 4576/08 Ben Zvi v. Prof. His [ 17] paras. 25 – 29, according to which an infringement of autonomy is now included within the framework of non-pecuniary damage. An infringement of autonomy means negating the victim's freedom of choice by failing to disclose a substantive detail, but the infringement of autonomy is expressed by negative feelings such as anger, frustration, insult, revulsion,shock etc.  

                                                                   Justice

 

 

Justice  E.  Vogelman

 

 I concur with the comprehensive judgment of my colleague, Justice E. Hayut.   I am a partner to my colleague's conclusion that the objective approach to the assessment of compensation for infringement of autonomy should not be accepted and that accordingly, where proved that some of the members of the group remained indifferent to the infringement of autonomy, there are no grounds for awarding compensation for that head of damage.

 

                                                                                    Justice

.                      

                  

 

 

 

 

 

 

 

                       

 

 

"

 

 

 

 

 

 

 

 

said in subsection (b) into

account. 

 

            CA 723/74

"Ha'aretz" Daily Newspaper Ltd. and Others

v.

The Israel Electric Corporation Ltd. and Another

 

 

 

 

The Supreme Court sitting as the Court for Civil Appeal

            [24.2.1977]

Before Berinson J., Shamgar J. and Ben-Porat J.

 

 

 

Editor's synopsis -

                This is an appeal from a judgment for the Respondents, the Plaintiffs in the lower court, in a civil action for defamation, based on an article published in the Defendant newspaper. During a period of national recession, the Plaintiff company, a public government corporation, purchased an expensive luxurious car for the use of its Director General, the second Plaintiff-Respondent, who was close to retirement. After considerable public criticism of the purchase, the Plaintiffs announced that the Director General would continue to use the old car he had previously used and that they would put the new car up for sale.

           

                The article published by the Appellants, the Defendants below, charged that the sale was a sham and that the Plaintiffs did not really intend to sell the car. It stated that the Plaintiffs did not make any serious effort to sell the car, that they turned down offers to purchase the car at a reasonable price and that they actually placed impediments in the way of its sale. The article alleged that the Plaintiffs really sought to gain time so as to weather the storm of public protest until the public furor will have passed, after which the car would be returned to the Director General's use.

           

            Having failed to establish their defense that the allegations contained in the article were true (under Israeli law, the burden of proof in this matter rests on the defense), the Defendants sought to defend the article as an expression of opinion in good faith concerning the injured party's conduct in a public function or in connection with a public matter. The lower court rejected this defense as well, on the ground, among others, that the defamatory contents of the article were primarily statements of fact rather than opinions.

           

                In a divided decision, the Supreme Court reversed the lower court's judgment. Justice Shamgar wrote the majority opinion in which he held:

               

I.       Freedom of expression is a fundamental right recognized as such in Israeli law. The Law Forbidding Defamation, 5725-1965, which is intended to protect persons' reputations from being besmirched, should be interpreted and applied in a manner that does not infringe upon or unduly limit the proper exercise of this right.

 

2.      This point is all the more significant when what is at issue concerns the criticism of a public official or of a public body in connection with its official conduct. Aggressive, even strident criticism should be encouraged in such matters, in the public interest. The law's provisions concerning the defense that the defamatory publication was the expression of an opinion concerning a public matter, made in good faith, should not be whittled down by narrow interpretation and application.

 

3.      Just as the defense of truth is not lost when the defamatory matter contains inaccuracies that are minor in nature and not themselves injurious, so too the defense of good faith expression of opinion in a public matter will not be lost even if some of the factual grounds on which the opinion expressed was based turn out to be erroneous.

 

4.      It is not correct to require that the opinion be correct as a condition of this defense, else it would be unnecessary to relie on this defense, which applies even when the defense of truth fails.

 

5.      The author's criticism of the plaintiffs' conduct need not be the only reasonable conclusion that can be drawn from the underlying facts, in order for this defense to prevail. It certainly should not be required that the author's conclusion comport with that which the judge would have concluded in the circumstances. All that is required by the condition of reasonableness is that there should be a logical connection between the facts and the author's conclusion so that he could have concluded as he did in good faith.

 

                Justice Ben-Porat filed a dissenting opinion. She would have denied the appeal on the grounds, among others, that the factual inaccuracies in the article, on which the author based his conclusions, were not incidental and that the article did not separate clearly facts from conclusions. The broad defense allowed for expressions of opinion in public matters, in her opinion, is conditioned upon the author making such a separation clearly, so that the reader can distinguish between them, can discern how the author reached his conclusion and can reach his own independent conclusions in the matter.

           

            Note - The instant case was reconsidered by a panel of five Justices in Further Hearing 9/77, in which Justice Ben-Porat's dissenting opinion prevailed and the District Court's verdict for the Plaintiffs was reinstated. The opinions in Further Hearing 9/77 are published in this volume, immediately following this case.

           

           

Supreme Court Cases Cited:

[1] C.A. 68/6 Rabinowitz v. Mirlin, 11 P.D. 1224; 30 P. E. 66.

[2] C.A. 534/65 Diab v. Diab, 20(2) P.D. 269.

[3] H.C.73/53, 87/53 Kol Ha'am Co. v. The Minister of the Interior, 7 P.D. 87; 13 P.E. 422.

[4] H.C. 7/76 "Hilron" Agricultural Products Export-Import Company, Ltd. v. The Fruit Production and Marketing Board, 30 (3) P.D. 645.

[5] Cr.A. 24/50 Gorali v. The Attorney General, 5 P.D. 1145; 6 P.E. 3.

[6] H.C. 206/61 The Israel Communist Party v. The Mayor of Jerusalem, 15 P.D. 1723.

[7] C.A. 90/49 Bentov v. Kutik, 5 P.D. 594; 4 P.E. 190.

[8] C.A. 160/70 Hubayshi v. Disenchik, 24(2) P.D. 394.

[9] C.A. 326/68 Assa v. Livneh, 23(2) P.D. 23.

[10] C.A. 382/58 Tax Assessor v. Ziso-Brantel, 12 P.D. 1732; 36 P.E. 384.

[11] H.C. 14/51 The Attorney General v. Rotem, 5 P.D. 1017; 5 P.E. 304.

[12] C.A. 36/62, 92/62 Ozri v. Gilad, 16 P.D. 1553.

[13] C.A. 34/71 Friedman v. Chen, 26(1) P.D. 524.

[14] C.A. 250/69 Modi'in Ltd. v. Chatouka, 23(2) P.D. 135.

[15] C.A. 134/67 Eban v. Disenchik, 21(1) P.D. 527.

[16] Cr.A. 215/58 Ben Avraham  v. The Attorney General, 13 P.D. 393; 38 P.E. 349.

 

English Cases Cited:

[17] Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (1934) 50 T.L.R. 581; sub nom. Princess Alexandrova v. Metro-       Goldwyn-Mayer picturwes, Ltd. 78 Sol. Jo. 617 (C.A).

[18] Scott v. Sampson (1882) 8 Q.B.D. 491; 46 L.T. 412; 46 J.P. 408; 30 W.R. 41 (D.C.).

[19] London Artists, Ltd. v. Littler (1969) 2 W.L.R. 409; (1969) 2 Q.B. 375; sub nom. London Artists v. Littler (and Associated Actions) (1969) 2 All E.R. 193 (C.A.).

[20] Lewis v. Daily Telegraph, Ltd. (1963) 2 All E.R. 151; sub nom. Rubber Improvement Ltd. v. Daily Telegraph, Ltd. (1964) A.C. 234; (1963) 2 W.L.R. 1063; 107 Sol. Jo. 356 (H.L.).

[21] Slim v. Daily Telegraph, Ltd. (1968) 2 Q.B. 157; (1968) 2 W.L.R. 599; 112 Sol. Jo. 97; (1968) 1 All E.R. 497 (C.A.).

[22] Plato Films v. Speidell (1961) A.C. 1090; (1961) 2 W.L.R. 470; 105 Sol. Jo. 230; (1961) 1 All E.R. 876 (H.L.).

[23] Grech v. Odhams Press, Ltd. (1958) 2 Q.B. 275; (1958) 3 W.L.R. 16; 102 Sol. Jo. 453; (1958) 2 All E.R. 462 (C.A.).

[24] Merivale v. Carson (1887) 20 Q.B.D. 275; 58 L.T. 331; 2 J.P. 261; 36 W.R. 231; 4 T.L.R. 124 (C.A.).

[25] Campbell v. Spottiswoode (1863) 3 B. & S. 769; 3 F. & F. 421; 2 New Rep. 20; 32 L.J.Q.B. 185; 8 L.T. 201; 27 J.P. 501; 9 Jur. N.S. 1069; 11 W.R. 569; 122 E.R. 288.

[26] Peter Walker & Son, Ltd. v. Hodgson (1909) 1 K.B. 239; 78 L.J.K.B. 193; 99 L.T. 902; 53 Sol Jo. 81 (C.A.).

[27] Hunt v. Star Newspaper Co., Ltd. (1908) 2 K.B. 309; 77 L.J.K.B. 732; 98 L.T. 629; 24 T.L.R. 452; 52 Sol. Jo. 376; (1908-10) All E.R. Rep. 513 (C.A.).

[28] Turner v. Metro-Goldwyn-Mayer Pictures (1950) 1 All E.R. 449; (1950) W.N. 83; 66 T.L.R. (Pt.1) 342; 94 Sol. Jo. 145 (H.L.).

[29] Thomas v. Bradbury, Agnew & Co., Ltd. (1906) 2 K.B. 627; 75 L.J.K.B. 726; 95 L.T. 23; 54 W.R. 608; 22 T.L.R. 656 (C.A.).

[30] Carr v. Hood (1808) 170 E.R. 983; (1808) 1 Camp. 33.

[31]Popham v. Pickburrn (1862) 18 E.R. 730.

[32] Kemsley v. Foot (1952) 1 All E.R. 501; (1952) A.C. 345; (1952) 1 T.L.R. 532; 96 Sol. Jo. 165 (H.L.).

[33] Watkin v. Hall (1868) L.R. 3 Q.B.D. 396; 9 B. & S. 279; 37 L.J.Q.B. 125; 18 L.T. 561; 32 J.P. 485; 16 W.R. 857.

[34] McQuire v. Western Morning News Co., Ltd. (1903) 2 K.B. 100; 72 L.J.K.B. 612; 88 L.T. 757; 51 W.R. 689; 19 T.L.R. 471; (1900-03) All E.R. Rep. 673 (C.A.).

 

New Zealand Cases Cited:

[35] Gooch v. N.Z. Financial Times (No. 2) (1933) N.Z.L.R. 257.

 

American Cases Cited:

[36] Chaplinsky v. New Hampshire 315 U.S. 568; 62 S.Ct. 766 (1942).

[37] Beauharnais v. Illinois 343 U.S. 250; 72 S.Ct. 725 (1952).

[38] New York Times v. Sullivan 376 U.S. 24; 84 S.Ct. 710 (1964).

[39] Gertz v. Welch Inc. 418 U.S. 323; 94 S.Ct. 2997 (1974).

[40] Roth v. United States 34 U.S. 476; 77 S.Ct. 1304; 1 L.Ed.2d 1498.

[41] Stromberg v. California 283 U.S. 39; 51 S.Ct. 532; 75 L.Ed. 1117.

[42] Sweeney v. Patterson 76 U.S. App. D.C. 23; 128 F.2d 457 (1942).

 

 JUDGMENT

 

            Shamgar J: 1. We have before us an appeal against the judgment of the Tel Aviv District Court in an action for defamation in which the Appellants were ordered to pay compensation in the amount of 10,000 Israeli pounds to the second Respondent and one pound to the first Respondent.

           

            2. The following are the main facts:

           

            (a) On 14.3.67 the following article was published in the Ha'aretz newspaper:

           

"The Electric Corporation Director General's Car, by the 'Ha'aretz' Transport Correspondent.

 

On 26.10.1966, a news item appeared in Ha'aretz to the effect that the Electric Corporation had acquired a 1966 Chevrolet Impala for its Director General, Mr. Yaacov Peled. The price - 33,500 Israeli pounds.

 

After there appeared in the press letters from readers and articles criticizing this 'wasteful practice' by a State company that suffers from deficits, raises prices and is unable to distribute dividends, Mr. Peled reacted as follows, in Ha'aretz of 8.11.66: '... [A]lthough I do not agree with the opinions that relate the replacement of the car to the policy concerning the recession, I have decided to sell the new car and to continue to use the old one – so as to remove any and all cause for criticism, even if it is unjustified.' Mr. Yaacov Peled (70), who is due to retire in October, resumed using his old car, a 1963 Chevrolet Impala.

 

The new car, in which Mr. Peled had already driven about 6000 kilometers, was returned to the agent in Tel Aviv, Mr. Leo Goldberg, so that he should sell it and return the proceeds to the Corporation.

 

More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but actually. the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General, for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching.

 

The Goldberg agency was instructed to sell the car, subject to the Corporation's prior approval. After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 pounds for the car. The Electric Corporation's transport officer refused to approve the sale. He advised the agency that even if it found a buyer for 28,000 pounds (which will never happen) they would have to receive his approval of the sale.

 

From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market.

 

It is not so easy to sell a luxury Impala such as that ordered by the Corporation for its Director General, Mr. Peled: with an automatic gear, an imported radio, an electric antenna and other luxury items which raise its price several thousand pounds above the standard price.

 

The Ministry of Development should instruct the Electric Corporation management to sell the car without any further manoeuvering".

 

            Passages from this article served as the basis for the claim, which is the subject of this appeal, in which each of the Respondents sued the newspaper Ha'aretz, its editor, its owner and the correspondent who wrote the article for 50,000 Israeli pounds damages.

           

            (b) The evidence produced before the District Court established the following:

           

            The episode began, as claimed in the article, in 1966, during the period of the recession, when the second Respondent ordered the car described in the article from the Chevrolet agent in Israel, the Leo Goldberg Company (hereinafter the Goldberg agency) for 33,500 Israeli pounds. At that time, the Respondent had at its disposal a car of the same make, which was a 1963 model, and which had already been driven 150,000 kilometers and was beginning to cause problems. Hence the decision to exchange it. This decision was not presented before the Corporation's management institutions for consideration and decision. To the car which was ordered - which was one of the biggest and most luxurious cars on the Israeli roads during that period there were added an electronic antenna, white wheels and power steering, all of which were novel appurtenances at that time.

 

            News of this acquisition, which was published first in the Maariv newspaper, apparently following upon the overture of an employee of the Corporation, aroused public criticism which was expressed in letters to the newspapers and the complaints of at least one of the members of the Corporation's Board, who had not been consulted in advance. As a result, the second Respondent decided to return the car to the Goldberg agency, after he had it for about two months and had driven about 5000 kilometers. The Goldberg agency refused to cancel the sale and return the payment made, but it agreed to handle the sale of the car as a used model. The second Respondent thought, according to his testimony in court, that he was not obliged to call for tenders for the car. On 8.11.1966, the Respondent published a notice in the press announcing its intention to sell the car. It was transferred to the Goldberg agency on 29. 11. 1966 and the article, which is the subject of this action, was published on 14.3.1967.

           

            When the car was brought to the Goldberg agency, the Corporation's representatives did not fix a price for which the Corporation would be prepared to sell the vehicle and did not empower the agency to act within a particular price range as a basis for negotiating the sale to a potential buyer. Instead, the agency was asked to present every offer, without exception, for the Corporation's prior approval. Save for the second Respondent's notice in the press, mentioned above, there was no other public announcement concerning the offer to sell the car. At first, the car was placed in the agency's sales lot, but when time passed and it was not sold, it was decided to keep it in a nearby closed storage place belonging to the agency, for its protection. Naturally, as a result, it was not exposed to the view of potential buyers who visited the agency.

 

            Several offers ranging between 22,000 and 25,000 Israeli pounds were made for the car, but they were all turned down after the person in charge of sales at the agency ascertained the first Respondent's position. The crux of the matter was that because of the cumulative weight of various circumstances - such as the failure to fix a price, the rejection of offers to purchase the car at a price which appeared reasonable in the light of the economic situation and the car's nature, the passage of time and the advanced process of aging of the model in consequence thereof, the Corporation's apathetic and even discouraging attitude whenever a potential buyer contacted it by telephone and the absence of any urgency in the effort to find a buyer the person in charge of sales at the Goldberg agency, Mr. Ben-Ami Amir, received the impression that the Corporation did not really intend to sell the car. According to him, he usually succeeded in selling a used vehicle within several weeks. Mr. Amir said in his testimony in court that:

 

"I received offers. I asked Shagal. He replied in the negative. The offers which I received were 24,0000 Israeli pounds and again 24,000 pounds and 25,000 pounds.... After several offers from agencies and private individuals the reply was that even if there were an offer of 28,000 pounds I should ask again. At that time, the price of 28,000 pounds appeared to me to be a dream and I therefore concluded that the car was not for sale. This was the first time that I was unable to sell a car.... The main basis for my conclusion that the Corporation did not want to sell the car was that I received no reply at first. I have been a sales manager for many years.... Here, for the first time, I did not receive a single satisfactory reply concerning a sale for a certain price. I concluded that they did not intend to sell because no price was fixed for the sale of the car, not at the beginning and not during the course of the weeks that followed ... until I went to Goldberg and told him I would no longer handle the matter...."

 

            According to Mr. Shraga Kantor, who was in charge of the first Respondent's service department and a member of the management, he too had heard the opinions quoted above "which were widespread amongst the Electric Corporation employees who thought that it was all a bluff”. Mr. Amir passed on his impression, as described above, to the fourth Appellant who was, at the time, the first appellant's transport correspondent. He maintained close contact with Mr. Amir who was, as already stated, the sales manager of the Goldberg agency, as well as with those who perform parallel functions in other agencies. Through them he was able to keep up to date with respect to the state of the market for used vehicles. Mr. Amir's statements appeared reliable to him and were corroborated later by one of the potential buyers. After receiving the information and before publishing his article, the first Appellant approached the first Respondent's spokesman, told him what he had heard and asked for his reaction. The spokesman refused to react because, as it appears, of a general directive given him by the second Respondent not to give any information to the Ha'aretz newspaper.

           

            On 21.3.1967, after publication of the article, the late Mr. Leo Goldberg wrote to Ha'aretz seeking to describe the sequence of events and pointing out, among other things, that "we received no offer of 24,000-25,000 pounds" save from several second-hand car dealers. It appeared that what was said in the letter was not consistent with the facts known to Mr. Ben-Ami Amir or with those known to the Corporation: that a certain fruit wholesaler had offered Amir 25,500 pounds for the car and that he had repeated his offer by telephone directly to the Corporation. The Corporation did not propose, as is customary, any counterprice which appeared to it to be more reasonable, and did not even reply to the offer.

           

            In May, 1967, after publication of the article and after the action, which is the subject of the appeal, had been brought, the second Respondent contacted the manager of the Hadera Paper Mills and the Chairman of its Board of Directors and persuaded them to buy the car for 28,000 pounds. The deal was closed.

           

            3. The Respondents' claim was brought on 20.3.1967. It was based on a part of the article, beginning with the words, "More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale ..." (the fifth, sixth and seventh paragraphs quoted above), and on the article's concluding sentence: "The Ministry of Development should instruct the Electric Corporation management to sell the car without any further manoeuvering." The full text of the article was attached to the statement of claim. The Respondents claimed that the above extracts implied that the first Respondent had been guilty of -

 

          "corruption, deceiving the public, mismanagement of its affairs and its business, management by way of manoeuvering, bothering the Leo Goldberg agency and its employees in vain and misleading them."

           

            According to the statement of claim, the article charged the second Respondent with -

           

          "corruption, deceiving the public, lack of integrity in his office, mismanagement of the affairs of the Corporation and conducting the affairs and business of the Corporation by way of manoeuvering."

           

            These matters come within the definition of defamation for which the Respondents claimed the damages referred to above.

           

            The appellants, in their statement of defense, took exception to the Respondents' interpretation of their article, denied that it contained anything defamatory and pointed out that "what was said in the article is true and the publication was in the public interest" (section 14 of the Law Forbidding Defamation, 5725-1965 (hereinafter the Law)), and, that they will further contend that the publication is protected by sections 15(2) of the Law (the defense of good faith because of a legal, moral or social duty to publish the matter), 15(4) (expression of an opinion concerning the injured party's conduct in an official or public capacity or in connection with a public matter) and 15(6) (criticism of an act which the injured party performed in public).

           

            In a motion brought before the court of first instance, the Respondents asked that the defense under section 15(2) of the Law be struck out in limine. This application was dismissed by the Registrar and suffered the same fate in their appeal to the District Court. However, the further appeal to the Supreme Court was allowed and this defense was stricken (C.A. 213/69, The Israel Electric Corporation v. Ha'aretz, 23(2) P.D. 87). There remained, therefore, at the opening of the original action, only the defenses under sections 14, 15(4) and 15(6) of the Law.

 

            4. The main issue before the court of first instance was whether to classify the article's contents as being matters in the nature of facts or as expressions of opinions, and this continued to be an issue before us. The Appellants were of the opinion that most of the published matter was of the nature of conclusions and therefore constituted opinions. This matter could not, therefore, be examined under the aegis of section 14 of the Law, and was subject only to the defenses laid down in sections 15 and 16 of the Law.

           

            In its judgment, the District Court broke down the publication into its substantive elements and its drafting and concluded that it consisted entirely of matters of fact, save for the following two short items, which are in the nature of expressions of opinion:

           

"which will never happen" (i.e. - finding a buyer for 28,000 pounds).

 

and -

 

"The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            The District Court found signs of both opinion and fact in two other extracts. It stated in this regard:

           

"The statement: 'If they had decided to sell the car for reasons of public hygiene what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market', could be seen to be a continuation of the matters quoted above concerning the Goldberg agency's clerks' conclusions that the Electric Corporation was not interested in selling the car. It could also be seen as the journalist's statement, to give strength and foundation to the employees' conclusion. If we view these words as those of the employees themselves, that is to say, this is their logic and the reason for their conclusion, then it would be an argument of fact, whereas, according to the other alternative, it is an expression of the author's opinion. The same applies to the following paragraph, concerning the question whether it is easy or difficult to sell a luxury Impala. It could be seen as an expression of the author's opinion concerning the state of the car market and it could be said - and I tend toward this view - that the general state of the market is a matter of fact."

 

            The District Court rejected the Appellant's defense that the article constitutes a "matter of opinion". In its view, expressions of opinion, too, must be grounded in truth. Just as presentation of data which is not true does not benefit from the defense provided in section 14 of the Law, so too, the expression of an opinion not grounded in truth does not benefit from the defense of good faith. According to the court:

           

"Good faith and truth, although not synonymous, are bound together for purposes of the defense against defamation."

 

            Furthermore, expressions of opinion, which may be understood by a reasonable reader to be assertions of fact, will be seen to be and will be classified by the court as factual claims and not as expressions of opinion.

           

            In applying the above principles to the issue under consideration, the District Court noted that in its opinion the Appellants had no factual basis for imputing the serious allegations contained in the article to the Respondents. Only three and a half months had expired from the time that the car was returned, not four, as stated in the article. The incident occurred during a period of recession and for this reason there were no eager buyers of the car. The criticism of the original acquisition of the car was not at all relevant.

           

            The assertion that the car was "supposedly" for sale, implied an intention to mislead from the very beginning. This was without foundation, just as the imputation to the second Respondent of an intent to acquire the car after his retirement was nothing more than speculation by the Appellants. The argument that the end of the model year was imminent was also proved to be incorrect, since the article was written in March of the particular year, and the model year of American cars, unlike that of European cars, is determined by the Gregorian year. The Goldberg agency did not make any effort to sell the car and the conclusion attributed to its clerks was clearly baseless. The Appellants' reliance on Ben-Ami Amir's words does not relieve them of liability because -

 

"by publishing Mr. Ben-Ami's statements, they took defamatory matter conveyed to them privately by Mr. Ben-Ami Amir and multiplied it many thousands of times, as the number of their readers, and gave it credence among all those persons whom the paper reaches, so as to bring the Plaintiffs into disrepute and to sully their names."

 

            There was also no basis for the suspicion that the Respondents had hidden the car, since it was the Goldberg agency that decided to store it in the closed warehouse.

           

            It is true that the Electric Corporation refused to react when asked to do so by the fourth Respondent before publication of the article, but since this refusal was prompted by the bad relations which existed between the newspaper and the Corporation, he should have known that the Corporation's silence was not connected to the merits of the issue but to their relations with the article's author. The writer was not released, therefore, from his duty to check the facts in some other way.

           

            The Appellants' statement that -

           

"if they had decided to sell the car for reasons of public hygiene what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market",

 

does not meet the test of reasonableness and, therefore, bears directly on the claim of good faith. Furthermore, the use of the word "maneouvering" was without foundation.

 

            The District Court analysed the events at length to explain that, in its opinion, a completely different conclusion should have been drawn from the facts instead of that which the Appellants drew, and noted that the article contained an element of -

 

            "stigmatizing the Appellants [the Plaintiffs] as liars and not serious people".

           

            This constitutes defamation, as the Supreme Court had already concluded when it allowed the motion to strike out the defense under section 15(2) of the Law (C.A. 213/69, supra).

           

            After the District Court announced its decision that there was defamation and that it dismisses the defense claims, the parties agreed that the court should fix the amount of damages and costs at its discretion, as well as the form which an apology should take, without hearing any further evidence and arguments. The court awarded the second Respondent 10,000 Israeli pounds compensation, since he had suffered the main injury. The Corporation was awarded compensation in the amount of 1 Israeli pound, primarily in consideration of the fact that it had refused to respond to the fourth Appellant's question when he turned to it before the article was published. The court ordered publication of an apology and determined its wording.

           

            5. The appeal before us covers a wide expanse, from minor arguments concerning matters of procedure and evidence to major issues concerning the principles of the law of defamation. We will not fulfil our duty if we do not make special mention of the comprehensive and clear arguments made by both parties who appeared before us, which were of great assistance to us in fixing the bounds of the dispute and determining its essence.

           

            And now to discuss the rules of law which apply to the matter before us and their application to the facts of the case.

           

            6. A. The Respondents' argument was that the article in question imputed to them "dishonesty and hypocrisy" and stigmatized them as "liars and not serious people". Imputing such characteristics, if in fact this was done, would constitute defamation within the meaning of section 1 of the Law. The test applicable to the existence of defamation according to section 1 is not confined to the subjective insult suffered by the individual against whom the verbal or written injurious matter is aimed, but has an objective basis: that is, what is the influence or relationship of the defamatory matter on the specific plaintiff’s estimation in the eyes of others (C.A. 68/56, Rabinowitz v. Mirlin [1], at p. 1226; C.A. 534/65, Diab v. Diab [2], at p. 274). The prohibition against defamation is intended to fix firmly in enacted law the right of every person that his reputation not be demeaned or injured by false statements that denigrate him (Justice Scrutton, in Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (1934) [17], 50 T.L.R. 581, 584, referring to Scott v. Sampson (1882) [18], 8 Q.B.D. 491, 503.

 

          But the issue before us cannot be resolved by merely applying the definition of defamation in section 1 of the Law to a particular expression. The Law frames rules, whose purpose it is to create effective protection of the individual against being injured by the publication of defamatory matter, so that this area resembles the laws of privacy which seek to prevent unlicensed or uncontrolled intrusion into the private domain (see Thomas I. Emerson, The System of Freedom of Expression, 1970, p. 517). The problem that arises in this field of the law is not confined to the need to define the nature of the act in question or of the injury resulting from it, but that both the law forbidding defamation and that protecting privacy, raise the question where should the line be drawn between them and the right of freedom of expression.

         

          B. The relationship between defamation and freedom of expression has been defined in various ways and approaches. The difference between these approaches is expressed principally in fixing the status of the two subjects in relation to each other, that is, whether they are treated as two separate fields with equal status, or whether they are regarded as values, one of which deserves preferential treatment and whose importance therefore outweighs the other, either in general or in particular circumstances. There were those who regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness (see the words of Justice Murphy in Chaplinsky v. New Hampshire 315 U.S. 568, 571-572 (1942) [36], and of Justice Frankfurter in Beauharnais v. Illinois 343 U.S. 250 (1952) p. 266 [37], according to whom defamatory matter is not protected by the right of freedom of speech).

         

            But the attitude giving exceptional preference to the prohibition against publishing defamatory matter over and above the right to freedom of expression has been abandoned in the United States, for example, with regard to defamatory matter concerning holders of official or public office, and the principle which gives superior status to freedom of expression concerning subjects of public interest connected with holders of official or public office has been entrenched there (see New York Times v. Sullivan (1964) [38] and the subsequent judgments based thereon). The tendency to add constantly to the types of office holders to which this principle applies was restrained lately by the judgment in Gertz v. Welch Inc. (1974) [39], but there was no erosion of the basic approach described above with respect to the mutual relationship between defamation of office holders and freedom of expression.

           

            There is no need to try our hand at describing the tendencies and considerations that lie at the basis of any decision which is required to be made, in the varying circumstances, to resolve the conflict between one party's right to an unsullied name and another party's right, in a free society, to give expression at will to his opinions and ideas. The issue before us is more limited as it concerns a publication about the holder of a public office and relates to a public matter. We can, therefore, confine ourselves to this subject only. The first Respondent is one of the largest government companies with respect to the scope of its operations and the number of its employees; it provides a vital service to the general public, and it has a meaningful and daily relationship with every citizen. The second Respondent is the Director General of the corporation which, as a Government company, is responsible to a Government Ministry (at the time, the Ministry of Development), and because of the nature of its objectives and its economic and public standing, he must be deemed to be the holder of an office in the public service. There is also no disputing the fact that the issue before us, in light of its nature, is also a matter of public interest, for, in Lord Denning's words in London Artists, Ltd. v. Littler (1969) 2 W.L.R. 409, 418 [19]:

           

   "... Whenever a matter is such as to affect people at large so that they may be legitimately interested in or concerned at what is going on ... then it is a matter of public interest on which every one is entitled to make fair comment...."

           

            In light of the nature of the matter before us, as described above, it is therefore sufficient that we direct our discussion only to the leading conceptions and approaches that govern the examination of the question of publications concerning holders of public or official office and the relationship between them and freedom of expression. Afterwards we will examine whether and how these rules have been applied in our enacted law.

           

            7. The absence in Israel of a unitary piece of legislation of preferential legal status that embodies its constitutional principles does not mean that we have no statutes with constitutional content or that constitutional legal principles defining the basic rights of man and the citizen are absent from our system of law. The law in Israel embraces, according to our understanding and concepts, basic rules concerning the existence and protection of the freedoms of the individual, even before the bill Basic Law: Rights of Man and Citizen has become enacted law.

           

            The new draft Basic Law is intended to crystallize principles and to designate their boundary lines; its central task is to fix them firmly in enacted law so as to ensure their protection against the ravages of time. Its purpose is to give expression to values according to which the ordinary citizen should be educated and to block in advance the progress of those who seek to trespass on his rights. But even now basic rights are protected and first and foremost among these, in our basic legal conception, is the freedom of expression, and they are a substantive part of the law of Israel. The integration of these rights into our law is, as is well known, the consequence of the system of government which we so coveted (H.C. 73/53, 87/53, Kol Ha'Am Co. v. The Minister of the Interior [3], at p. 876), but the obligation to honor them is not merely a political or social-moral one; it also has legal status.

 

            Thus far as concerns the existence of the right. Now with regard to its standing in the system of law that applies in the State.

           

            The basic right of freedom of expression is of decisive importance for establishing the nature of the regime that rules in a given political or social framework. Furthermore, it is the fundamental basis of, and a condition precedent for, the existence and faithful preservation of most other basic rights. Without freedom of expression the stability of other basic rights, such as, for example, freedom of religion, is threatened and the danger that they will not be fulfilled increases. In addition, the previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status. The obligation to maintain this right serves as a guideline to fashion and shape laws and to test the legality of acts of the authorities. This also has consequences for the legal interpretation of every written law. Any limitation of the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words (H.C. 75/76, "Hilron" v. The Council for the Production and Marketing of Fruits, [4], at p. 653). Freedom of expression and a provision of law that limits it do not have equal and identical standing, but rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it. In sum, the standard of judgment that establishes the protection of freedom of expression as the primary consideration when it clashes with another right should be given full expression, not only when the legislature enacts the law's provisions, but also in the interpretation of the law and the application of its provisions to circumstances in which its actual essence and performance are tested in practice.

 

            The above-described approach is generally accepted by all when one is considering the relationship between freedom of expression and the totality of governmental powers, but the maximal restriction of the powers of official authorities in the fields of criminal and administrative law is but a fraction of the measures whose object is the protection of this foundation of a democratic regime. Despite this, it does happen that the said understanding of the mutual relationship is accepted to a lesser degree when in the circumstances of the case there is a clash between the right of the individual to give expression to his opinions and ideas and the right of an office holder who may feel injured by this expression of opinion. It would be superfluous to emphasize the importance of applying the yardstick described above correctly in these latter circumstances as well, since the right to freedom of expression can easily be diminished if, while direct administrative intervention is stymied, the individual is exposed at the same time to litigation within the framework of the laws forbidding defamation for any critical or negative expression of opinion against a public servant in connection with his official conduct, which hurts his standing in the public eye (section 1(3) of the Law) (see in this matter the words of Justice Brennan (p. 724) and Justice Goldberg (p. 737), with which Justice Douglas concurred in the said Sullivan case [38]). It was to such circumstances that Justice Agranat referred in Cr. A. 24/50, Gorali v. The Attorney General, [5], at p. 1160, when he said:

 

"The law recognizes that in known circumstances and under certain conditions the general good demands - so that the said basic right not be emptied of its content – that a person not be punished for publishing slanderous matters, since the harm which would be caused to the public by excessive restriction of freedom of speech and freedom of writing is preferred in the eyes of the law to the causing of any private injury."

 

            B. As said, we deal here with matters alleged against a Government company and its employee, concerning matters connected with the use of its funds, the observance of its required pactices and the granting of privileges to its employees.

           

            The possibility and opportunity for political, social and other criticism of the functioning of the government, its institutions, companies, representatives and employees is a sine qua non for the existence of a properly functioning democratic regime, as stated by Justice Sussman in H.C. 206/61, The Israel Communist Party v. The Mayor of Jerusalem, [6], at p. 1728:

           

"True democracy will be judged by whether criticism is published and heard, without which the democratic-parliamentary regime will descend to nothingness."

 

            In this context Justice Brennan commented, in the said Sullivan case [38], which dealt with a libel claim centering on an advertisement which contained incorrect factual data:

           

"... freedom of expression ... 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States 354 U.S. 476, 484, 77 S.Ct. 1304, 1308 [40]. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means ... is a fundamental principle of our constitutional system', Stromberg v. California 283 U.S. 359, 369, 51 S.Ct. 532, 536, [41] ... and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion'.... We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials...." (Id. at p. 721).

 

            Factual error may enter a critical statement, as happened in the Sullivan case [38], as to which Justice Brennan asks:

           

"The question is whether it forfeits that protection [of the right to free expression of opinion - M.S.] by the falsity of some of its factual statements and by its alleged defamation of respondent...." (My emphasis - M.S.)

 

            And he refers in this matter to the words of Judge Edgerton in Sweeney v. Patterson 76 U.S. App. D.C. 23, 24; 128 F.2d 457, 458 (1942) [42] that -

           

"... errors of fact, particularly in regard to a man's mental state and processes are inevitable.... Whatever is added to the field of libel is taken from the field of free debate."

 

            Justice Brennan sums up, one cannot condition the defenses provided by law on the absence of factual errors or inaccuracies. According to him:

           

"A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable 'self-censorship'. Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars.... The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

           

            C. Freedom of the press is only one of the specific forms of the right of free expression. Furthermore, this is the central area in which the extent and actual existence of the said right are tested.

           

            I will not enter here into the special question of whether the press has a special duty and status with respect to the provisions of the Law, since this question was already answered with regard to the publication before us in the above C.A. 213/69, when the defense under section 15(2) of the Law was struck out in limine. There is no doubt that this is a very important question, and any further study of it will contribute to its additional clarification (see also in this connection C.A. 90/49, Bentov v. Kutik, [7], at pp. 601, 603). As a tentative thought only, it might perhaps be regrettable that these proceedings were fragmented at the Respondents' initiative on the basis of rule 96 of the Civil Procedure Regulations, 5723-1963, so that there was no opportunity to examine all the defenses simultaneously, that is, after hearing the testimony (cf. C.A. 160/70, Hubaishi v. Disenchik, [8], at p. 395).

           

            There is no room for doubt that adoption of the rules granting special standing to the right of criticism in matters of public interest that concern holders of public office does not permit the media to indulge in unbridled writing or release them from all restraints. Later on, we will discuss the provisions of both parts of section 16 of the Law, which contain the rules that create the necessary balance between that which is permitted and what is prohibited, and that the media will not be able to avail itself of any plea of justification when a publication goes beyond the permitted. But any tendency to add to or further limit this balance creates many hazards: the rules concerning freedom of expression are tested in accordance with their long term general advantage and meaning and they should not be evaluated under the influence of events of the moment. The maintenance of basic rights is not disputed when affairs are conducted peacably and when the various authorities earn only compliments. But the real test of freedom of expression comes when there is confrontation accompanied by decisive and unpleasant criticism. Furthermore, the standing and function of the media in a free society are not measured according to how each of their elements and entities meets the expectations of the balanced and moderate citizen, but mainly in light of the media's mission and general importance in the complex network of factors which contribute to the formation of the citizen's opinion and enable him to exercise free evaluation and choice, with knowledge of what is happening and the ability to evaluate the quality and nature of every event, proposal and criticism.

 

            8. Within the framework of the proceedings before us our attention was drawn by both parties to English precedents in defamation cases. Uncontrolled reliance on such precedents could lead to erroneous conclusions. Even in the Civil Wrongs Ordinance, 1944 - which to a considerable extent adopted the law existent at the time in England - there are differences of terminology from that in the English source: in section 20 of the Ordinance, for example, under the heading of "conditional privilege" are included the defenses of "qualified privilege" and "fair comment", although in the country of origin of these rules there are differences between the two. Since then, not only have sections 16 and 22 of the said Mandatory Ordinance disappeared, but the provisions of section 2 of the Ordinance, which tied interpretation of the Ordinance to the rules of legal interpretation prevailing in England, have also been abrogated (Law Amending the Administration and Law Ordinance (No. 14), 5732-1971). In Britain the Defamation Act was enacted in 1952. The Law which we apply here was enacted in 1965 and these two laws differ in many aspects from each other and from the Mandatory Ordinance (compare, for example, section 20(1)(a) of the Mandatory Ordinance with sections 15(2) and 16(a) of the Law.)

           

            One must, therefore, classify and examine the matter very carefully before relying on quotations from English judgments or

           

 having recourse to English legal literature, some of which is already out of date in England (see, for example, Odgers, A Digest of the Law of Libel & Slander, (191l) 6th ed., p. 161, on which the Respondents relied, in comparison with section 6 of the Defamation Act, 1952). It is superfluous to add that equal care must be taken with regard to reliance on those Israeli precedents that are still anchored in the provisions of the Mandatory Ordinance.

 

            9. A. I am of the opinion that the provisions of our law with respect to defamation and the approach on which they are based are consistent with the principles and the values referred to above.

           

            The protection of the individual's good name is realized in the definition of defamation (section 1 of the Law) and in the provisions laying down that defamation is, depending on the circumstances, a criminal offense or a civil wrong. Protection of freedom of expression is formulated in the provisions of chapter 3 of the Law, which contains a list of permitted publications (section 13) and lays down the scope of the defenses of "truth" (section 14) and "good faith" (section 15). The special defense for criticism in connection with public matters appears in section 15(4) of the Law.

           

            B. When the defense of truth is pleaded, the defendant seeking to make this defense successfully is entitled to try to prove that the matter published was true and that the publication was in the public interest. This defense consists, therefore, of two cumulative components and the presence of one of them without the other will not avail the defendant (incidentally, in Britain the cumulative condition that the publication was in the public interest applies only in criminal actions).

           

            The burden of proof in a plea of "truth" is on the person making it (C.A. 326/68, Assa v. Livneh [9], at p. 25; C.A. 382/58, Tax Assessor v. Ziso-Berenthal, [10], at p. 1735).

           

            C. When the defense of good faith is pleaded, the defendant is entitled to argue that he published the matter concerned in one of the circumstances set out in section 15 of the Law and that the publication did not exceed what was reasonable in those circumstances. In the case of this defense, too, there are two interconnected cumulative components and the defense cannot succeed in the absence of either one.

           

            10. A. Clearly, the heart of any dispute in a defamation case is the meaning of the words which it is claimed are defamatory. When examining the meaning of such words they must be interpreted in accordance with what the reasonable reader or listener would understand from them, and recourse must not be had to the legal interpretations by which a legal document would be examined and its content analyzed. Lord Reid said in this context (in Lewis v. Daily Telegraph (1964) A.C. 234, p. 258 [20]:

           

            "... There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of wordly affairs....

 

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning."

 

            That is to say, the natural and ordinary meaning of the words will sometimes be found in their simple literal meaning and sometimes by reading between the lines. The natural and ordinary meaning of the words cannot be gleaned by isolating and severing them from their context. On the contrary, they must be seen against their general background and within the context of the publication in which they appear. So that, for example, when the court examines matters published in a newspaper and attempts to apply the test of the ordinary reasonable person, it must evaluate the significance and meaning of the words in the eyes of the ordinary reader and judge how he would have understood them. There is an additional aspect to this rule that directs us to the ordinary meaning of words: the words must be interpreted within the context of the publication in which they appear, without reference to additional extraneous factors which could change or broaden their meaning, unless it can be proved that these additional factors, as well, are within the ordinary knowledge of those who heard or read the words.

 

            B. When examining the significance of matters in the eyes of the ordinary reasonable reader, the publisher's intention is generally of no importance. That is, subject to the provisions of section 16(b)(3) of the Law, this question is altogether irrelevant (H.C. 14/51, The Attorney General v. "Davar", [11], at p. 1053). No evidence is to be brought in connection with the question of what meaning the ordinary reader, or one or another type of reader, would ascribe to the publication, and there is no need to hear testimony about how the published matters were understood, since it is the court itself which must judge the matter (C.A. 36/62, 92/62, Ozri v. Gilad, [12], at p. 1559). According to Lord Diplock in Slim v. Daily Telegraph (1968) 2 Q.B. 157, 165, 173 [21]:

           

            "What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel."

           

            11. A. The meaning and the sense of the article in question is clear on its face: from its wording it appears that the author concluded from the Respondents' actions and omissions that they intended to misrepresent and to deceive the public: that is, at the same time that the second Respondent declared publicly his desire to sell the vehicle, that had been purchased for what was at that time a great deal of money, the hidden intention that is discerned from the circumstances is the opposite.

           

            This comes within the definition of defamation in section 1 of the Law.

           

            On the other hand, I did not find in the article any explicit or implied allegation that the second Respondent intended to retain the car in the corporation's possession in order to acquire it upon his retirement, as the Respondents contend. This contention was raised in the course of a heated argument in court concerning why the second Respondent's imminent retirement was mentioned in the article, but the reasonable reader could not have learned about these matters from the article itself. In the eyes of one who is not familiar with the hidden ways of public authorities, the reference to the imminent retirement only stressed the absence of any justification for acquiring the car in the first place, that is, as a comment to the effect that if the matter concerns a person who is about to retire, why should he not be patient and complete his final year of service with the car he had. That explains the reference to the Respondent's retirement in connection with the story about the acquisition of the car, and that in any event is how it should be understood. Therefore, the dispute before the lower court, which was repeated before us, whether it was permissible to adduce evidence of precedents concerning acquisition of cars by employees of the corporation who retired on pension, had no relevance to the matter of the publication which is the subject of the proceedings before us.

 

            B. Once we have determined that the article contains defamatory matter, the question arises whether the Appellants can benefit from one of the defenses provided by the Law. The relevant defenses are two:

           

            (a) that the matter published is true;

           

            (b) that the publication was made in good faith.

           

            One plea does not obviate the other and it might be that one would suffice without the other. In this connection the question whether we are talking about facts or expressions of opinion, or both, is significant. We must therefore first classify the published matter according to whether it was factual or an expression of opinion and then decide whether the defenses referred to above apply in the circumstances.

           

            C. When an injured party complains about a certain publication because of its contents, one may not restrict the defendant, in presenting his defense to the particular words in the relevant publication on which the plaintiff bases his claim. The defendant is entitled to have recourse to the entire publication, including those parts not referred to by the plaintiff, in order to justify his defense, whether it be based on "truth" or on one of the alternatives in the plea of good faith. The essence of defamation is injury suffered by a person in the eyes of others and the published writings which were brought to the attention of other persons constitute a single entity. There is no justification to dissect them arbitrarily in order to stress a part of the publication which contains defamatory matter and to prevent the publisher from presenting the entire publication, since it is his right that the court view the matters in their natural light as, it may be assumed, they were seen and read by the ordinary reasonable reader (cf. C.A. 34/71, Friedman v. Chen, [13], at p. 529). This does not mean that the part of the publication containing defamatory matter is purified and cleansed of all contamination by the fact that the rest of the publication contains only truthful statements. The other parts of the publication are relevant for the purpose of presenting a complete picture and to reach a conclusion concerning the author's good faith.

 

            The defendant's said right is especially important when the publication contains several facts, some of which are proved, established and true, and do not constitute a ground for the claim, while a small number, concerning which the plaintiff complains, are not true. The relevancy of the other parts of the publication as providing the basis for the expression of the opinion increases, naturally, in proportion to the measure and extent of the truthful statements contained in the publication and is conditioned on these facts being interwoven and integrated into the expression of opinion which is the subject of the action. The approach common in England, which differs to some extent from ours (see Plato Films v. Speidel (1961), [22]), is substantively unreasonable, and recommendations were recently made aimed at changes in the legal position in England (cf. Report of the Committee on Defamation, H.M. Stationery Office, 1975, Cmnd. 5909, p. 34).

           

            D. The publication at issue before us presents a list of facts, alongside of which, or following upon which, are conclusions and evaluations of the author, that are in the nature of expressions of opinion. In order to judge its nature the publication must be read as a whole, because its factual beginning constitutes the basis for understanding the expressions of opinion contained therein. Furthermore, prima facie, any doubts or disputes concerning the classification of any part or selection of the defamatory matter quoted in the complaint can be dispelled by examining the publication as a whole and in context. This method makes eminently clear the stages of the fourth Appellant's evaluation of the situation, beginning with the factual data and ending in his conclusion that the active intervention of the Ministry of Development was called for.

 

            The court of first instance was therefore correct in considering the article as a whole and the Appellants' complaint in connection therewith is unfounded. On the other hand, I do not accept the lower court's ignoring of the influence which the inception of the incident had on the fourth Appellant's considerations and conclusions, but since this subject comes within the ambit of the defense of good faith, I will return to it when I deal with this distinct problem.

           

            E. I am not satisfied with the conclusions drawn by the lower court concerning the division of the article's contents into facts and opinions. Everyone agrees that the following were of the nature of facts:

           

(a)        the acquisition of the car.

 

(b)   the text of the Director General's reply to the criticism leveled against him.

 

(c)   the impending retirement in October 1967 of Mr. Peled, who was 70 years old, and his resumption of the use of his previous car.

 

(d)   the return of the new car to the Goldberg agency.

 

(e)   the instructions with regard to the price and the sale of the car that were given to the Goldberg agency, except the words "which will never happen".

 

(f)    the selection noting that "it is not easy to sell a luxury Impala" up to the words "above the standard price".

 

            From the evidence brought before the court of first instance, as detailed at the beginning of this judgment, it can be concluded that all the above facts, without exception, were satisfactorily proved and that no one disputes that their publication was in the public interest, as required by section 14 of the Law.

           

            It follows, therefore, that insofar as these facts are concerned, the appellants can enjoy the defense of "truth" based on section 14, even if the facts were defamatory.

           

            12. The remaining parts of the publication whose meaning demands our attention, are the following:

           

"More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General, for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching."

 

[finding a buyer at the price of 28,000 Israeli pounds] "... will never happen."

 

"From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market."

 

"The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            Before expressing our opinion concerning the nature of these selections and their legal classification, I will make several preliminary observations about the meaning of section 15 of the Law in general and of section 15(4) in particular, and its relationship to the presumptions in section 16.

           

            13. A. With regard to the mutual relationship between section 15 and section 16: In their arguments before us, the Respondents sought to set forth the provisions of the Law as creating an absolute divide

           

 between facts, on the one hand, and expressions of opinion, on the other hand. While section 14 of the Law deals exclusively with matters of fact, which must be examined solely according to the yardsticks fixed therein, section 15, according to them, deals exclusively with expressions of opinion. However, if we examine the provisions of sections 15 and 16, which are inter-connected, we will see that this is, in fact, not so. Section 15 does not consist solely, as one solid piece, of subjects that are in the nature of opinions (see, for example, the circumstances described in sections 15(1), 15(2) and 15(10)). It follows, therefore, that the presumptions set forth in section 16, which are linked with all the variegated provisions of section 15, do not apply to expressions of opinion alone.

 

            The issue at stake in every case is whether the defendant made the publication in one of the circumstances provided for in section 15. If so, then, the presumption in section 16(a), that he made the publication in good faith, applies, whether the publication contained facts or matters of opinion (see C.A. 250/69, Modi'in Press v. Chatouka, [14], at p. 137, in which the question of good faith, for purposes of section 16(a), was considered in connection with a publication in a newspaper stating that a certain woman was committed to a hospital because of mental disease and the author of the publication sought the protection of the defense contained in section 15(2) of the Law). A similar approach was adopted in Grech v. Odhams Press, Ltd. (1958), [23] in which a publication containing factual inaccuracies was allowed the defense of fair comment by the court after it was shown that the publication was made in circumstances deemed to be privileged.

           

            B. With regard to the unique nature of section 15(4): The defense provided in section 15(4) refers to a publication in the nature of an expression of opinion on the conduct of the injured party in an official or public capacity, in the public service or in connection with a public matter. That is to say, while some of the subsections of section 15 do, indeed, describe circumstances which create a basis for the defense of section 16(a) with respect to the publication of facts, this does not teach us anything about the remaining elements and paragraphs of section 15, as can be seen from the fact that section 15(4), like section 15(5), deals expressly with expressions of opinion only and cannot be stretched beyond that.

  

          The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought. The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described. The integration of all the subsections of section 15 with section 16, with the two types of presumptions contained therein, teaches us that it was not the legislature's intention that the courts should examine the wording of the publication as if with a magnifying glass in order to separate out every fragment of fact and deny it the protection afforded by section 16(a) of the Law.

         

          The approach of the Israeli legislature to this matter can be learned also from section 14: in order to decide whether the matter published was true, regard is had to the fundamental facts which reflect the essence of the publication and not to incidental details as to which any injury caused is secondary (see the last sentence of section 14).

         

          Incidentally, it would be difficult to learn anything for the purposes of the issue before us, as the Respondents sought to do, from the above cited London Artists case [19], in which it was held that the words, "... on the face of it appears to be a plan..." were, in their special context, the determination of a fact rather than an expression of the writer's opinion. I doubt very much if this court would have so understood them. But the main point is that the argument concerning the classification of the publication as an expression of opinion was dismissed in that case, first and foremost, because it was raised for the first time in the midst of the proceedings. In any event, there, too, Judge Denning reached his conclusion about the classification of the publication as a totality of facts on the basis of "... a fair reading of the whole letter ...", that is, on the basis of an examination of the document as a whole.

         

          A similar approach, stamping a publication with its dominant hallmark and deciding its fate in accordance with its classification as an expression of opinion even when it contained some facts, found expression in Justice Brennan's opinion in the Sullivan case [38].

 

            C. With regard to the element of truth in an expression of opinion: Criticism of the functioning of a public authority may be aggressive and determined, uncompromising and overtly expressive of the writer's feelings, and it will be protected even if the writer drew wrong conclusions and made a mistaken evaluation, so long as the circumstances laid down in section 16(b) do not exist, that is:

           

"(l) the matter published is not true and he did not believe it to be true;

 

(2) the matter is not true and he had not, prior to publishing it, taken reasonable steps to ascertain whether it was true or not;

 

(3) he intended to inflict greater injury by the publication than was reasonable in defending the values protected by section 15."

 

            The burden of proof concerning section 16(b) is on the Plaintiff (C.A. 134/67, Eban v. Disenchik [15]; C.A. 250/69, [14]), and if the circumstances set forth in section 15 have been proved and the publication did not go beyond what was reasonable, it would not be sufficient for the Plaintiff to show that the publication was not true in order to overcome the presumption of good faith. In other words, it is not enough that the Plaintiff show, for example, that the expression of opinion concerning the conduct of a director general of a public company was not true, but he must also prove additional elements, collected in subsections (1) to (3) of section 16(b), in order to rebut the presumption of good faith. Therefore, there is no basis for the lower court's opinion that:

           

"the concepts of good faith and truth ... are bound together for purposes of the defense against defamation."

 

            With regard to the connection between expressions of opinion and the truth, we have nothing other than the provisions of section 16(b), according to which the absence of truth per se does not negate the defense of good faith, unless additional elements are present as enumerated in this subsection. The lower court's decision would have the effect of emptying section 16(b) of all meaning.

 

            As indicated in subparagraph B above, publications are classified according to their dominant character, so that even if incidental factual details of minor importance become interwoven with expressions of opinion, this would not affect the classification of the publication for purposes of applying section 15(4) of the Law, even if it transpires that some of the factual details are untrue, so long as there are other truthful elements in the publication upon which the expression of opinion was based.

           

            A similar idea appears in the provisions of section 6 of the English Defamation Act, 1952, which states that when the words about which the plaintiff complains are composed -

           

"... Partly of allegation of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained as are proved."

 

            D. With regard to the matter of reasonableness: A substantial part of the lower court's judgment is devoted to the dispute about the reasonableness of the Appellants' assertions. This, for example, is how the lower court reacted to the Appellants' assertion -

           

"if they [the Respondents] had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car would fetch the proper price in the used car market."

 

The court said:

 

"As stated above, this assertion could be construed as the continuation of the above conclusions of the Goldberg agency employees or it could be construed as an expression of opinion on the part of the author of the article. It is irrelevant which of these is chosen since in any case it does not satisfy the test of reasonableness and reasonableness is a basic element of good faith" (My emphasis - M.S.).

           

            Following upon these words, the lower court set out in detail why it thought the appellants had erred in their conclusion concerning the price of the car and why it was preferable in the circumstances of the case not to have rushed to sell the car but to have continued to search for a buyer who would offer a higher price.

           

            It follows clearly that the lower court was mistaken about the nature of the good faith defense and the element of reasonableness included in it. Section 16(a) provides that the defendant will be presumed to have made the publication in good faith if the following two conditions are met: (a) the publication was made in one of the circumstances referred to in section 15 and (b) it did not exceed what was reasonable in such circumstances. The reasonableness demanded here does not mean that the opinion expressed in the publication must be the only, single and exclusive conclusion which can be drawn from the circumstances by pure logical reasoning. The condition not to exceed what was reasonable in the circumstances does not mean that in order for the publication to be protected it must contain only that one interpretation of the events, among several, which the court selects as the most reasonable. The element of reasonableness dealt with by Section 16(a) means that the publication should not diverge, in its wording and its relationship with the events upon which it is based, from every possible logical connection with the facts, such as if someone is called a robber and thief only because he was one day late in settling a debt. There is no attempt in the Law, even indirectly, to coerce any single uniform line of thought and it should not be interpreted as doing so.

           

            The defense of expression of opinion also does not fail because of the derogatory criticism or absence of objectivity in the publication and that does not derogate from its reasonableness. The fact that the publication's wording may not be to the taste of a moderate balanced person does not make it unreasonable. The court may not impose its taste and its logic on the publisher. It must leave room for the strong expression of opinions. The test is as laid down by Lord Esher:

           

            "Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that...." (Merivale v. Carson 1887, 20 Q.B.D. 275, 291, [24]).

 

Lord Denning commented in similar vein:

 

"These comments are capable of various meanings.... One person may read into them imputations of dishonesty, insincerity and hypocrisy.... Another person may only read into them imputations of inconsistency and want of candour.... In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was educated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words contained derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.... I stress this because the right of fair comment is one of the essential elements which go to make our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to 'write to the newspaper': and the newspaper should be free to publish his letter. It is often the only way to get things put right...." (Slim v. Daily Telegraph, Ltd. (1968), 1 All E.R. 497, 503, [21]).

 

            14. In the matter before us - that is, the failure to prove the truth of a defamatory publication containing imputations of dishonorable and corrupt motives - the English precedents are noteworthy for their lack of uniformity and even contradictions. Contrary to the strict approach toward such publications and the tendency to grant a defense only to such publications which are founded in truth (as laid down by Justice Cockburn in Campbell v. Spottiswoode, 3 B. & S. 769, 776, 777, [25] on which my learned colleague, Justice Ben-Porat relied) the view of the law expounded by Justice Buckley in Peter Walker, Ltd. v. Hodgson (1909), [26], which differs to no small extent with the former opinion, is now the more accepted one. According to Justice Buckley:

 

"The defendant may nevertheless succeed upon his defence of fair comment, if he shows that that imputation of political bias, although defamatory, and - although not proved to have been founded in truth -, yet was an imputation in a matter of public interest made fairly and bona fide as the honest expression of the opinion of the defendant held upon the facts truly stated and was in the opinion of the jury warranted by the facts, in the sense that a fair minded man might upon those facts bona fide hold that opinion." (My emphasis - M.S.).

 

            That is to say, for this purpose, it is sufficient that a reasonable person could have reached the defamatory conclusion from the facts contained in the publication and that the facts on which he relied appeared in the body of the publication. In the opinion of the authors of the British Report on Defamation mentioned above, this approach clashes also with what was held in another judgment on which my esteemed colleague Justice Ben-Porat relied, that in Hunt v. Star Newspaper (1908) [27]. The opinion contained in the Walker case [26] was approved by the Commission and was also adopted by Gatley (7th edition, paragraph 728) and apparently is the accepted one today in England (paragraphs 164 and 166 of the Report and the judgments referred to therein).

           

            In light of the lack of uniformity in the judicial precedents, it is not surprising that the British jurists are displeased by the state of unclarity in the law of defamation in their country and that, for example, Lord Diplock (in the Slim case [21] referred to above) should conclude that

           

"... the law of defamation ... has passed beyond redemption by the courts."

 

These words should give us cause for extra thought before we draw upon the English precedents for the purpose of interpreting our own enacted law, whose principles are perfectly clear.

 

            All the less, therefore, is it important that we resolve the dispute between the parties before us whether the said Hunt precedent [27] is still valid and binding. In any event, the said English Commission expressed some doubt about this (paragraph 164 of the Report) and we need not re-examine its opinion.

           

            15. A. As can be gathered from the lower court's judgment, it set true cumulative conditions for allowing the defense contained in section 15 of the Law:

           

(a)        the published matter, both facts and opinions, must be true and

 

(b)   the expression of opinion must be reasonable in the eyes of the court sitting in judgment, with regard both to the considerations on which it is founded and to its logic.

 

            The court thus whittled down the defense under section 15 so critically as to empty it of all content: because, in any event, if the truth of the publication can be proved, then there is no longer any need to resort to the defense under section 15, and the lower court's interpretation of the Law would make this section superfluous. As was said in the above Grech case [23], (at p. 281):

           

"otherwise, it seems to me that the defence of fair comment would be almost valueless; for if the jury found that the words were not defamatory or - being defamatory - were true, then the defence of fair comment would not be needed."

 

            But the legislature did not commit the sin of tautology, as would follow by implication from acceptance of the lower court's theory. The function of the defense under sections 15 and 16 is substantially different from that described by the District Court: as explained above, the purpose is to open the door to criticisms and to protect them against defamation actions, even if it transpires that the opinions expressed are not founded on truth and even if the thinking expressed therein is not consistent with what the court considers logical. The provisions of sections 15 and 16 do not invest the courts with the power of judicial censorship of truth and logic. They are a set of cumulative conditions whose aim is to deny the defense of good faith only to malicious publications, that is, those made in the knowledge that they were false or in reckless disregard of whether they were false or not.

 

            B. The clear nature and content of the extracts from the publication, quoted above in paragraph 12, which were the subject of the complaint, render them obviously expressions of opinion - that is, they are the author's conclusions founded on a set of factual particulars. This is their dominant characteristic, even if here and there certain factual assertions of secondary importance may have been attached to them. Hence, we must examine these extracts in the light of sections 15(4) and 16.

           

            Even if these ancillary facts contain inaccuracies, these are so secondary in their meaning and their importance that there is nothing in them to change the writer's conclusion. Similarly, I fail to grasp the importance of the claim that since the car was returned to the Goldberg agency on 29.11.1966 (not immediately after the Respondent's public statement of 8.11.1966) it was in the agency's custody only for three and a half months instead of "more than four months" as said in the article. So, too, it is of no importance that it was not "the agency's clerks" who drew the conclusion described in the article, but only one clerk, since this particular clerk was the one directly responsible for carrying out the assignment to sell the car, who dealt with the matter directly until he concluded what he concluded and reported that his assignment was finished. Who was more familiar with the matter than he and more competent to convey his impressions of the matter? The court concluded that his statements were not merely some malicious irrational personal speculation when it learned that many of the Electric Corporation's employees also thought that the offer to sell the car was a bluff. The factual description of the offers for sale which preceded the publication of the article is well founded and the lower court made no finding rejecting Mr. Sapir's testimony on this point. Moreover, Mr. Goldberg's letter of 15.3.1967, on which the Respondents relied, also shows that there were offers from car dealers "who thought they could get the car at this price," and the price set forth in the letter is "24,000-25,000 Israeli pounds".

           

            C. As stated, these extracts teach us that, save for the factual assertions to which we alluded above, we deal here with the expression of opinion, that is, conclusions drawn from a set of factual particulars, some of which were mentioned in the article and some not. The reasonable reader could not have mistakenly understood that these extracts conveyed factual information about a particular, express decision of the corporation not to sell the car, but it is evidently clear that the author drew conclusions, which seemed reasonable to him, from the facts of the case. If there remains any doubt whatsoever about whether this is anything more than an expression of opinion, then the words

 

          "if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it"

           

emphasize that this was a conclusion and an analogy, even argumentative in style, according to the author's logic, which sought to pinpoint the inconsistency in the acts and omissions of the corporation and its representatives.

 

            D. The claim that the author's conclusion is incorrect does not deprive it of the defense provided in section 16, since once the presumption of good faith arises, the Respondents must prove the existence of one of the circumstances set out in section 16(b), if they wish to rebut this presumption, and in this they did not succeed at all.

           

            With regard to section 16(b)(1): In the light of Mr. Amir's testimony, there is no basis to attribute to the fourth Appellant the lack of faith in the publication's truthfulness. On the contrary, Mr. Amir apparently believed sincerely in the truth of his impression and conclusions and conveyed them to the fourth Appellant. The lower court was of the opinion that this did not add an aura of veracity to the author's conclusion, but that is not so. The circumstances as a whole gave Mr. Amir's story the image of truth and reason, since the corporation had shown no initiative and outstanding passivity in everything related to the sale: no offers of sale were published in the press and no notice of tenders was announced, no price was fixed for the car by the Respondents, the offers made received no attention and no attempt was made to negotiate with the bidders in order to persuade them to raise their offers. Instead of cleaning the car, which was covered by dust, to impress potential purchasers, it was confined, to the Respondents' knowledge, in a warehouse in which it disappeared completely from view and the passing of time reduced the prospects of selling it. In this last connection, it was immaterial whether the beginning of the 1968 model year had already arrived, or whether it was a few months off, as, in any event, the natural passage of time, if not halted, brought the former event closer every day, and the aging process of the car, which was a 1966 model, continued to progress. All of these facts, which were mentioned in part in the article, gave Amir's words the appearance of authenticity, and this had direct implications concerning the conclusion as to the author's good faith.

 

            Nor can one charge the fourth Appellant with failing to take reasonable measures to discover whether the publication was true, since he approached the first Respondent whose spokesman refused to speak to him. The lower court was of the opinion that since the fourth Appellant was well aware of the reasons for this refusal, he should have sought alternative sources of information in order to fulfil the obligation set forth in section 16(b)(2). I do not see any basis for this opinion. The corporation's refusal, whatever its real reason may have been, could only have added to the suspicions in the circumstances, and that is a considered risk which anyone who refuses to react must take. Whoever approaches a public authority with a request to react is not obliged to interpret silence on the part of the authority to its advantage, but is entitled to suspect that there is something behind it. In any event, anyone who refuses to react cannot complain afterwards that the publisher did not find an alternative source of information in order to circumvent the barrier he himself created by his refusal.

           

            The court is not one of the contesting parties but must examine whether the presumption of good faith arises or whether the Plaintiff has succeeded to rebut it, and to this end it has at its disposal the criteria laid down by Law. From the wording of section 16(b)(2) it follows, inter alia, that the plaintiff may try to prove the absence of good faith by producing evidence that the publisher "had not, prior to publishing it [the matter published], taken reasonable steps to ascertain whether it was true or not". But this provision of the Law does not merely provide a way to rebut the presumption. It also provides ground to infer that if the Defendant took steps in advance to ascertain whether the matter published was true or not, that is a sign that he has passed one of the good faith tests, and the defense remains valid as long as it is not rebutted in one of the other ways laid down in section 16(b).

 

            I would like to note, incidentally, that I very much doubt whether the spokesman for a public authority may take it upon himself within the scope of his duties to apply sanctions against any section of the media. When an employee of a public authority is entrusted with the task of conducting public relations with the authority's clientele, he cannot behave, in the course of his duties, as though he is in his, or his employer's, own private domain. The justification for establishing such a function lies in the existence of the public's right to receive information about what is happening and it is only proper for the spokesman to behave accordingly.

 

            E. The District Court excluded from its considerations the criticism aimed against the very acquisition of the car. In this, too, I take issue with it. The description of this episode at the beginning of the article was not alleged to be defamatory, but when examining whether facts were presented which furnish a basis for the expression of the doubt and suspicion in the article, these matters should not be taken out of their general context. It is reasonable to assume that it was this very event which first and foremost triggered the doubts about the Respondents' judgments: when office holders in a government company have seen fit to provide themselves with a luxury, eye-gouging car in a period of recession, or before or after one, instead of meticulously observing the rules of modesty, which obligate them, and when they have persisted in denying the justice of criticism, then doubts and even scepticism may arise whether they had any proper sense, in this context, about what is proper and what is not, and about what is permissible and what should not be done. When all the events are links in one chain, it would be artificial if one did not recognize this element, too, as a possible factual basis for the criticism in the article. As already noted above more than once, the author does not have to convince the court of the justice of his evaluation but has only to show a factual foundation for his opinions and suspicions; and even if we might have come to a different conclusion, that is not sufficient in itself to undermine any conclusion about the author's good faith.

 

            F. Finally, the Respondents did not succeed in founding the argument based on section 16(b)(3).

           

            16. The Respondents could have put the Appellants' good faith to an immediate test had they taken action according to the provisions of section 17 of the Law which provides:

           

"(a) Where defamatory matter has been published in a newspaper, the plea of good faith shall not avail the editor of the newspaper, the person responsible for the publication of the defamatory matter or the publisher of the newspaper if, having been asked by the injured party or by one of the injured parties to publish a correction or denial on behalf of the injured party, he has not published the correction or denial in a manner as similar as possible to the publication of the defamatory matter and within a reasonable time from the receipt of the demand, provided that the demand was signed by the injured party, that the correction or denial contained no defamatory or other illegal matter and that the length of the correction or denial was not greater than was reasonable in the circumstances of the case.

 

(b) If the newspaper appeared less frequently than once a week, the correction or denial should also be published, upon demand of the injured person, in a daily newspaper."

 

            It is superfluous to add that section 17 is of the nature of a counter-measure against the burden of proof created by section 16(b) and is an efficient instrument for the immediate correction of the injury caused by a defamatory publication. Action in accord with section 17 in the case under consideration could have led to the immediate presentation of the matter in a true light, without waiting for the completion of legal proceedings, ten years later.

           

            17. The article expressed the author's beliefs and those of his sources of information and imputed to the Respondents an intention which they apparently did not have. But that in itself was not sufficient to deny them the defense of good faith anchored in sections 15(4) and 16(a) of the Law.

           

            These provisions of the Law are expressly designed to protect, also, those expressions of opinion which it transpires afterwards were not the truth, as long as the defense of good faith, bolstered by the presumptions in the Law, is available to the publisher of the defamatory matter. It is our task to maintain this defense, in practice and according to the letter of the Law and its intention and the tendencies that lie at its base. I would, therefore, allow the appeal and dismiss the judgment of the District Court.

           

Berinson J.:

 

            I concur with Justice Shamgar's opinion that the appeal should be allowed. Without entering into the details of his reasons and my own for justifying this result, I would like to clarify, in a few remarks only, my general stand in this matter.

           

            My first remark concerns the supreme value that must be accorded to the freedom of expression of the individual with respect to criticism of the conduct of a public functionary in a matter of public interest. In this matter, I understand there is no difference of opinion between my distinguished colleagues, and I join them. Nonetheless, I must repeat and emphasize what was expressly held by this court in the previous proceeding before it (C.A. 213/69, Electric Corporation v. Ha'aretz), that the press as such has no special standing and privilege vis-a-vis anyone else and it must take equal care not to violate the rules of the game laid down in the Law Forbidding Defamation, In Justice Witkon's words:

           

            "Where the ordinary citizen is entitled to regard himself as obliged to speak in criticism of another, a newspaper is also entitled to do so. Like the one so the other, no more and no less."

           

            My second remark is that one should attach special importance to the fact that the journalist, Mr. Kotler, drew both the information and the conclusion that he presented in his article, from a source which was more competent than any other to judge the Respondents' behavior in connection with the sale of the car - none other than the sales manager of the agency to which the car was given for sale - and the principal matters were given in his name. It is true that repetition of a libel is not forgivable and, on the contrary, repetition of a libel in a newspaper can greatly exacerbate matters. But in the case before us, account should be taken of the fact that the publication was based on information received from a competent person who was well-acquainted with the matter and the author himself, who was the Transport Correspondent for the newspaper, was not a "lightweight" and he had asked for the Corporation's comments on the matter before publication and was snubbed. There is no room for doubt that the publication was made in absolute good faith and without malicious intent, and good faith is the main basis for the defense under section 15 of the Law. Great support for the opinion expressed in the article and for the criticism can be found in the Corporation's employees. According to Mr. Kantor, senior employees of the Electric Corporation also thought that the car was returned for sale in order to deceive the public because of the criticism that had been leveled against its purchase. It is true that Mr. Kotler did not know about this at the time his article was published, but it does strengthen the reasonableness of the publication greatly, so that it may benefit from the presumption contained in section 16(a) of the Law to the effect that it was made in good faith. As Justice Shamgar explained in his judgment, the Respondents did not succeed in rebutting this presumption on the strength of one of the grounds contained in section 16(b) of the Law, and the appellants were accordingly entitled to the defense under sections 15(4) and 16(a) of the Law.

 

            Finally, I agree that from a legal point of view the author would have done better to have separated facts from opinions, to have commenced with facts and ended with an opinion; and he did not do that. In one part of the article he also mixed and joined together facts and opinions. To my mind this is not significant. What is important is whether the article established an adequate factual foundation for the conclusions expressed and the criticism contained in it. The criticism itself could be exaggerated and unjustified, and this would not render the publication unreasonable. I agree with Justice Shamgar's analysis of the facts and his finding that basically they are correct, and that any inaccuracies are of secondary importance. In this conection I concur with the words of Lord Denning in Slim v. Daily Telegraph, Ltd. (1968) 1 All E.R. 497, 503, [21] quoted by my colleague, which also reflect my general approach in this matter of expression of opinion in good faith about the conduct, acts or omissions of a public functionary in a matter which, according to all opinions, is of public importance.

 

            I therefore agree that the appeal should be allowed.

           

Ben-Porat J.:

 

            On 20.9.1966, the Israel Electric Corporation (the first Respondent) and its ex-Director General, Mr. Y. Peled (the second Respondent) bought a Chevrolet Impala car, model 1966, from the Leo Goldberg Company (the Goldberg agency) for Mr. Peled's use, to replace a similar model 1963 car, which had been in use until then. The price of the car, after a 500 Israeli pound reduction, was 33,500 Israeli pounds.

           

            On 22.10.1966, there appeared an article in the Ha'aretz newspaper which leveled severe criticism against the acquisition of a luxury car with public money during the period of recession which reigned in the country at the time. In light of the public criticism - which is not the subject at issue before us - the Respondent published a notice in the Ha'aretz and Maariv newspapers, on 8.11.1966, in which he sought to justify the purchase on economic grounds because of the condition of the old car, but stated, nevertheless, that:

           

          "I have decided to sell the new car and to continue to use the old one - so as to remove any and all cause for criticism, even if it is unjustified."

           

            On 17. 11. 1966, at a meeting of the Electric Corporation Board of Directors, a majority of the members approved of the Respondent's decision to sell the car and of his notice to the public to that effect. The Chairman even praised the Respondent "for the courage of his decision and the good example he had given which will have a positive response and will improve the Corporation's public image."

           

            On 29.11.1966, the car was transferred to the Goldberg agency to be sold. Before it was transferred, the Corporation offered to return the car to the Goldberg agency at a loss of several thousand pounds, but the agency refused to accept it. Nevertheless, they did agree to accept it for resale, promising to find a suitable buyer. An agreement was reached between Mr. Goldberg and Mr. Shagal, the Corporation's national transport manager, according to which Goldberg would inform Shagal about the price offered by any potential buyer so as to receive his approval.

 

            While the car was at the Goldberg agency, Mr. Yair Kotler, a journalist, published an article in Ha'aretz under the headline "The Electric Corporation Director General's Car". The Respondents had no complaints about the first part of the article, which we will skip over. But they found defamatory matter in the second part of the article (which will be quoted later) on which they based their action in the Tel Aviv District Court against the Ha'aretz newspaper, Messrs. Gershon Schocken and Eliahu Salpeter, and against the journalist, Mr. Yair Kotler (the first three hereinafter "Ha'aretz" and the fourth - Kotler). The action was allowed and hence the appeal before us, which concerns the allowing of the action and not the amount of the damages.

           

            2. At the beginning of the article it was pointed out that the price paid by the Corporation for the car was 33,500 Israeli pounds. After discussing the public criticism of the acquisition of the car and the Respondent's notice of his intention to sell it, the article goes on to say:

           

"Mr. Yaacov Peled (70), who is due to retire in October, resumed using his old car, a 1963 Chevrolet Impala.

 

The new car, in which Mr. Peled had already driven about 6000 kilometers, was returned to the agent in Tel Aviv, Mr. Leo Goldberg, so that he should sell it and return the proceeds to the Corporation."

 

            After this begins the part which the District Court thought condemned the Respondents as liars, not serious and cheaters (paragraph 28 of the judgment):

           

"More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten about the incident, the car will be returned to serve the retiring Director General, for it will then be a "used" 1966 model, since the end of the 1967 model year is approaching.

 

The Goldberg agency was instructed to sell the car, subject to the Corporation's prior approval. After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 Israeli pounds for the car. An official in the Electric Corporation's Transport Department refused to approve the sale. He advised the agency that even if it found a buyer for 28,000 pounds (which will never happen) they would have to receive his approval of the sale.

 

From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market.

…

 

The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            The paragraph which was omitted (indicated by the three dots), in which the Respondents found nothing wrong, says:

           

"It is not so easy to sell a luxury Impala such as that ordered by the Corporation for its Director General, Mr. Peled: with an automatic gear, an imported radio, an electric antenna and other luxury items which raise its price several thousand pounds above the standard price."

 

            3. The Appellants' learned counsel, Advocate Lieblich, argued before us that the District Court erred in several respects and that it should have accepted one of the two pleas which had been argued in defense: "truth" or "an expression of opinion in good faith". His arguments will be analysed, to the extent required, later. At this stage, I will deal with only one of them:

 

            At a certain stage in the proceedings, the Respondents petitioned the court to strike out one of the Appellants' defense pleas in limine. The issue went as far as the Supreme Court, which in fact ordered it stricken out (in C.A. 213/69). In the judgment the Supreme Court quoted, amongst other things, the following statement by the lower court judge in his judgment (paragraph 8):

           

"The insult which is the subject of the action is the condemning of the Appellants as liars and not serious people. The Appellants did not sue with regard to the first article which criticized the acquisition of an expensive new car during the period of recession. They sued with regard to the second article which imputed to them dishonesty and deceit."

 

            Later on in his judgment, which is the subject of the appeal before us, when discussing the question whether "the publication was 'defamatory' within the meaning of the Law", the District Court judge says (paragraph 27):

           

"After the Supreme Court held as it did in its judgment quoted above and said that the article 'condemned the Appellants [the Plaintiffs] as liars and not serious people', it would appear that I need not say anything further and am not required to decide anything in this matter."

 

            Advocate Lieblich argues that the learned judge was mistaken in regarding himself as bound by some supposed holding of the Supreme Court when in fact that court had merely set forth the Plaintiffs' arguments and nothing more.

           

            There is no doubt that the language of the paragraph quoted above supports this argument. However, not only did the learned judge later interpret the article independently and arrive at the same conclusion, but the Plaintiffs (the Respondents) made it clear in the lower court that they were not claiming that the writing had any special meaning, but were relying on its ordinary, natural meaning. I also have no doubt that if the Director General of a public institution announces publicly that he has decided to sell the car at his disposal, while handing it over for sale only in theory, with the intention of taking it back as soon as the incident will be forgotten, this would be improper, irresponsible conduct, tainted with prevarication and deceit. This would, to the best of my understanding, also be every reasonable reader's interpretation of what was written. As Lord Diplock said in the case of Slim v. Daily Telegraph (1968) 1 All E.R. 497, 501, 507, [21]:

 

            "This court is in as good a position as the judge to determine what is the natural and ordinary meaning of the words."

           

            The question is not, therefore, whether what was written imputes to the Respondents the conduct described above, but whether it was permissible for the Appellants to impute such conduct to them, because it is true or because it is an expression of opinion in good faith on a public matter.

           

            4. As is well known, the difference between these true defenses is considerable. As to the defense of truth, section 14 of the Law Forbidding Defamation, 5725-1965 (hereinafter the Law) puts the onus on the Defendant to prove that the expressions he used, which besmirch the Plaintiff s good name, reflect reality. The Defendant "established" a fact and he must show that it is true (save in the case of an incidental detail, as provided in the last part of section 14).

           

            On the other hand, the legislature's approach to the expression of opinion in good faith in a matter of public interest is very liberal, since freedom of expression and discussion concerning public matters constitutes one of the basic principles of every advanced society. Every unjustified limitation on freedom of expression necessarily prejudices this sacred principle which must be protected against any infringement.

           

            This defense is similar to the well-known English defense of "fair comment", although we must remember that we have before us an original Israeli law which must be interpreted according to its contents. We can, therefore, have recourse to an English precedent only to the extent that what it says is consistent with the provisions of our law and is acceptable to us as an interpretion of those provisions.

           

            As to the extent of liberality of the "fair comment" defense, I agree with Lord Esher in the well-known case of Merivale v. Carson (1887) 20 Q.B.D. 275, 191, [24]:

           

"Every latitude must be given to opinion and to prejudice and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment.... Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit."

 

The determining question according to him is:

 

"Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work [I would add, or conduct] which he criticized?"

 

            This test appeals to me, but subject to Lord Porter's comment in Turner v. Metro-Goldwyn-mayer Pictures (1950) 1 All E.R. 449, 461. [228] that one should exchange the word "fair" to "honest". The exaggeration, the obstinacy and the prejudice of the publisher, which do not necessarily deny the defense to the criticism, are inconsistent with the concept of "fairness", but are not inconsistent with the concept of "good faith", which is nothing other than honesty.

           

            I find support for the test laid down by Lord Esher, on the one hand, with the change suggested by him, on the other hand, on page 38 of the Report of the Committee on Defamation, of March 1975. See also Thomas v. Bradbury, Agnew & Co. (1906) [29], and Lord Attenborough in Carr v. Hood (1808) 170 E.R. 983, 985, [30].

           

            This approach accords with the wording of section 15(4) of the Law, but at the same time attention must be paid to the presumptions concerning the presence or absence of good faith in section 16 - that is, that the publication "did not exceed what was reasonable under such circumstances".

           

            What justifies the great difference between the stringent demand that truth be proved, in section 14 of the Law, and so liberal an attitude toward expressions of opinion in good faith? Why, for example, should a prejudiced critic be protected, even if his criticism be exaggerated and his language biting, only because he honestly believed in the opinion he expressed, whereas someone who made a factual assertion (as opposed to an opinion) will suffer the consequences, even though his error is honest, and even reasonable?

 

            The explanation can be found in very old English judgments to the effect that a person who relies on "the expression of opinion in good faith" must bring the factual basis for his opinion to the reader's attention - and those facts must be true. In this way he enables the reasonable reader to judge for himself whether the opinion is well-founded or not. In the words of Judge Wilde in Popham v. Pickburn (1862) 158 E.R. 730, 733, [31]:

           

"To charge a man incorrectly with a disgraceful act is very different from commenting on a fact relating to him truly stated, - there, the writer may, by his opinion, libel himself rather than the subject of his remarks."

 

            A second, logically necessary, demand is that it be made sufficiently clear in the publication what is claimed as fact and what constitutes an expression of opinion. Therefore, if the subject matter of the criticism is a book, an artistic creation, a newspaper and the like - then, since they are available to the interested reader, it is sufficient if the publication refers to that source and it is not expected that it actually produce the creation. As Lord Porter commented in Kemsley v. Foot and Others (1952) 1 All E.R. 501, 505, [32]:

 

"Accordingly, its contents and conduct are open to comment on the ground that the public have - at least - [my emphasis] the opportunity of ascertaining for themselves the subject-matter on which the comment is founded."

 

            The distinguished judge later refers approvingly to Odgers on libel and Slander (5th ed. 1911). Since the passage which he quotes in his judgment is appropriate, in my opinion, to our case, I shall reproduce it here, while emphasizing those words which appear to me of particular importance:

           

            "Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well-founded; and therefore, what would otherwise have been an allegation of fact - becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege of truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference - without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment.

 

But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact."

 

            I see no need to take a stand in this case on the question of whether it is necessary to detail all the facts on which the critic's opinion is founded. At least from Lord Oaksey's judgment in the above Kemsley case it follows that there is no such obligation and the same has been understood to be Lord Denning's opinion in London Artists, Ltd. v. Littler (1969) 2 All E.R. 193, 198, [19]. In the absence of any such express demand in the provisions of our Law, I am prepared to assume (without reaching any final decision on the matter) that here, too, there is no obligation to publish all the facts which led the publisher to form the opinion he expressed. However, at the same time, one must always remember the idea that lies at the basis of the substantial difference between the defense of "truth" and that of "expression of opinion in good faith". As explained above, the justification for the broad scope of the latter defense lies in the reasonable possibility afforded the reading public - and the subject is after all of interest to it - to judge for itself if what appears in the facts detailed in the article leads to the opinion founded on those facts. Hence, the double obligation imposed on the person seeking the protection of this defense: first, to reveal at least the main facts on which his opinion is founded; and, second, to make it clear, to a sufficient degree, to the ordinary reading public that what is derogatory to the person's good name is purely an expression of opinion. Therefore, if the general impression made by the publication is that the derogatory part is a determination of fact, or that it is an expression of opinion founded on extrinsic facts within the publisher's knowledge, then the defense of "expression of opinion in good faith" will not be available to the publisher, and only the defense of "truth" (or "permitted publication" within the meaning of section 13 of the Law) will be at his disposal. Concerning an opinion ostensibly founded on extrinsic facts I refer to Judge Fletcher Moulton's judgment in Hunt v. Star Newspaper Corp. (1908), [27] , which is still valid.

 

            The question arises whether the publisher of defamatory matter can resort to the argument that he received his information from a reliable source, or that he relied on rumors whose credibility he believed. The answer is in the negative, although when the court fixes the damages, it may take into consideration, in the defendant's favor, the fact that this was a repetition of something said before and the publisher had indicated the source on which he relied (section 19(1) of the Law).

           

            I emphasized the word "may" because sometimes the very repetition exacerbates the injury. In this connection, I am in accord with the words of Judge Morris in Lewis v. Daily Telegraph Ltd. (1963) 2 All E.R. 11, 161-167, [20]:

           

            "To say that something is rumoured to be the fact is, if the words are defamatory, a republication of the libel. One cannot defend an action for libel by saying that one has been told the libel by someone else, for this might be only to make the libel worse.... Blackburn J. in Watkin v. Hall (1868) L.R. 3 Q.B.D. 396, 401 [33] ."

 

Further on he said:

 

"If one repeats a rumour one adds one's own authority to it, and implies that it is well founded, that is to say that it is true."

 

            At any rate, if the publisher does not make it absolutely clear that he is only repeating what someone else said then it will not even be a consideration for reducing the compensation to be awarded.

           

            Finally, before I analyse the article which is the subject matter of the issue before us, I wish to concur with those who distinguish between expressions of opinion on matters of taste, such as the quality of a work of music, a literary work or some known policy, and an expression of opinion concerning motives or intentions. Although a public functionary exposes himself to the criticism of the public by virtue of his functions, unfounded defamation of him should not be permitted. The classical form of this rule can be found in the words of Cockburn C.J. in the well-known case of Campbell v. Spottiswoode (1863) 122 E.R. 288, 290 [25]:

           

"But then a line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid or wicked motives - unless there is so much ground - - for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements but that his belief was not without foundation. -"

 

            This approach is consistent with the language of section 15(4) of the Law: "the publication was an expression of opinion on the conduct of the injured party ... in connection with a public matter ... as revealed by such conduct". If the motive or intention of the injured party are not "revealed" by such conduct, the publisher's good faith will not avail him (here, too, save with respect to the amount of compensation to be awarded - section 19(2)).

  

                      5. I have examined the article as a whole, based on the above legal analysis, and have reached the conclusion that the Appellants' plea based on the defense of "expression of opinion in good faith" is not acceptable for several reasons:

         

          A. The Respondents' intention to deceive the public was presented in the article as an existing fact and not as the expression of the author's opinion based on facts presented. The words "supposedly" and "actually," which are not qualified in any manner whatsoever, appear in the first paragraph of that part of the article on which the action is based, as part and parcel of the other facts which precede and follow them.

         

          I have no cause for assuming, as a real possibility, that the newspaper's reading public, for whom the article was intended, understood, or could have understood, from a perusal of the whole article that there was any room for doubt about the Respondents' bad intentions. The article in this case is completely different from the letter published by a person lacking any legal education in Slim v. Daily Telegraph, Ltd. (1968) [21]. There, a lawyer who was the legal adviser of a local authority, signed an order prohibiting the passage of vehicles, including motorcycles, on a certain road, and then, after joining a certain company, changed his position and argued that the company was entitled to use the road for its lorries. The Respondent wrote in his letter that in light of the lawyer's conflicting opinions, which varied according to the interests of his clients, one could not disagree with those who view such conduct with a measure of cynicism. The lawyer argued that the readers could interpret these words as referring to conduct unbecoming to his profession. The court held, rightly with all due respect, that the deciding factor was not the interpretation of one particular reader or another but the fact that this was an expression of opinion in good faith in a matter of public interest. Each reader was given the opportunity, on the strength of the conduct described, to judge for himself whether the comment was well-founded or not and the critic could not be held responsible for others' opinions. Furthermore, even if the writer expressed himself in a rough and unsuccessful manner and even if he were prejudiced against lawyers as such, that would still not remove the matter from the defense of criticism in good faith.

         

            The present case is not similar. Rather, it resembles to some extent, despite many differences, the subject matter of the above London Artists case [19]. Four leading actors announced, separately but at the same time and in the same language, that they were resigning their posts. Such an occurrence was unprecedented at that time in the theatrical world and could have led to the termination of the production which the defendant had been presenting very successfully for two years in a prestigious theater. Some time before the letters of resignation were received, the defendant was asked by the management to move the production to another, more modest, theatre, but he refused to do so unless he were offered attractive consideration. The defendant was convinced that the "combined" resignation after his refusal was nothing more than a conspiracy against him in order to effect his departure from the theater. He was so convinced of this that he organized a press conference at which he read his reply to the actors who had resigned. In his letter to one of the actresses (that was quoted in the judgment) he complained that she had not seen fit to come to him

           

            "before being a party to what, on the face of it, appears to be a plan to close the run of 'The Right Honourable Gentleman'...."

 

            Despite the guarded language (at the beginning of the letter), the court decided, upon a reading of the whole letter, that the allegation of a plot was a statement of fact. In the words of Lord Denning:

           

"... on a fair reading of the whole letter, I think the allegation of a plot was a statement of fact. The first paragraph runs in guarded language 'it appears' and the fourth paragraph says 'in other words', but the last paragraph speaks of 'the combined effort'. Reading the letter as a whole, I have no doubt that it stated as a fact that there was a plot ...."

 

            Edmund Davies L.J., as well, regarded the plot as a statement of fact, the fruit of the defendant's invention, and quoted from the above Hunt case [27], as a rule with which he concurred, that an expression of opinion must appear as an expression of opinion and must not be so entangled with facts that the reader cannot distinguish between them.

           

 Incidentally, the very reliance on the Hunt judgment [27] in 1969 undermines the Appellants' counsel's argument that its ruling no longer holds.

 

            In our case, the impression made by the first paragraph described above is not weakened, and is certainly not negated, by a reading of the continuation. On the contrary, even the few facts in the second paragraph (on which I shall tarry later) are connected mainly, if not only, with the paragraph after it:

           

          "From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down ...."

           

            The words "from this" indicate that the facts in the previous paragraph are what moved those same employees to reach their conclusion.

           

            It follows that the first paragraph - in which there is no hint of reliance on someone else's conclusions - appears as the correspondent's factual finding and, in my opinion, it must therefore be regarded as such despite the fact that he actually relied (as appeared from his testimony) both on the information from, and the conclusion of, the Goldberg agency's sales manager. The repeated reference (later in the article) to the conclusion of the "employees" (in the plural) does not (as should be recalled) relieve Mr. Kotler of his responsibility.

           

            B. Even if I should assume, contrary to my view, that Mr. Kotler's imputation that the Respondents intended to deceive the public is an expression of opinion in good faith, this would not change the conclusion which I reached. The reason is that there must always be some mutual relationship between the facts and the opinion expressed. True, it is not necessary that the court's opinion be more lenient than that contained in the publication. Nor does it matter that different readers could draw different conclusions from a reading of the article. But as was stated in the interesting article, Van Vechten Vieder, Freedom of Public Discussion, (1909) 23 Harv. L. Rev. 412, 424:

           

          "... it must not introduce new and independent defamatory matter, or draw inferences or conclusions wholly irrelevant or out of all proportion to the given facts which supply the basis of comment."

           

            (And see also McQuire v. Western Morning News Co., Ltd. (1903), [34].)

           

            The absence of any such minimal connection converts what is assumed to be an expression of opinion into a fact whose truth has to be proved.

           

            In London Artists [19], there was a fortuitous combination of several unusual events which led the respondent to believe in all honesty that the plaintiffs had plotted against him. If he had been required to prove the truth of his allegation (as he attempted to do initially) his defense would very soon have foundered as, in fact, there was no connection between the events. But when presenting these facts to the reasonable reader, before the circumstances were clarified, some persons might - perhaps - have argued that some of the readers could have suspected a plot, as the respondent did. It should be remembered that in the case of an expression of opinion, the defense will not fail merely because in fact it was not true: Merivale v. Carson (1887) 20 Q.B.D. 275, 281, [24]. Lord Denning held, in the said judgment, that there was not a sufficient mutual relationship between the events and the conclusion concerning a plot, so that the defense of criticism in good faith was not applicable to the case.

           

            All the more is this so in our case. Even if the Respondent erred by conditioning the sale upon its own prior approval and by not accepting the buyer's (singular) offer of 24,000-25,000 Israeli pounds, and by declaring that even an offer of 28,000 pounds would require its approval, this did not provide sufficient grounds for the conclusion that the whole affair was bluff and deception. It is most certainly permissible to criticize the manner in which an institution chooses to sell its vehicle and the fact that it sought an unrealistic price (on the assumption that the price of 28,000 pounds at a time of recession was such), but from this to the conclusion contained in the article is a far cry. Incidentally, the testimony of the experts concerning a realistic price at the time was contradictory (see Orbach at page 237 and Gonen at page 220). It should not be forgotten that the article stated that the car had cost the Respondent 33,500 pounds and that the Respondent had used it for only a very short time and had driven only 6000 kilometers. In the circumstances, since the car was almost new, is the reluctance to lose more than 5,000 or 5,500 pounds, so extraordinary as to justify an imputation of deceit and prevarication? It should also not be forgotten, as was mentioned in the article, that the Respondent had published his decision to sell the car in two newspapers (Ha'aretz and Maariv). Very strong evidence was required in order to refute the sincerity of the Respondent's intention, as appears prima facie from such a notice, to adhere to his public promise. As said in Odgers, 6th ed., at p. 162:

 

"... the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct."

 

            C. It may be noted that there are inaccuracies in the facts detailed in the article whose accumulated weight is not negligible, some of which even raise prima facie doubt as to the author's good faith.

           

            It is well-known that minor inaccuracies do not cause the plea to fail: Gooch v. N.Z. Financial Times (1933), [35], although there is a contrary opinion with which, with all due respect, I do not concur: see Lord Porter in the Kemsley case, [32], at p. 506:

           

"In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence."

 

            It appears to me that just as section 14 of the Law provides that the defense of "truth" shall not be denied by reason only that an incidental detail which is not actually injurious has not been proved, so too should the same rule apply to the defense of "expression of opinion in good faith". Nevertheless, I emphasized the word "only" as it hints at the possibility that inaccuracies might carry some weight which might be combined with other considerations, if there be such, to the disadvantage of that defense. This can be understood also from the judgment in Gooch [35], in which the applicability of the defense of "fair comment" was recognized in circumstances in which

         

   "the errors of fact were of minor importance and the article, which was written in good faith, deserved no condemnation but commendation."

 

            It is apparent from the content of the article referred to there that the minor inaccuracies in that case stood alone.

           

            I shall now consider the inaccuracies (in the article in our case), skipping, naturally, those matters which directly impute to the Respondents the intention to deceive (and which according to my assumption at this stage, in contrast to my opinion, constitute "an expression of opinion"):

           

(a) "More than four months have passed since the car was returned to the Goldberg Agency ... for sale."

 

            As will be recalled, the car was not transferred to the Goldberg agency until 29.11.1966 and from then until the article was published (14.3.67) only three and a half months passed. Mr. Kotler testified that the sole source of his information was Mr. Ben-Ami Amir, the Goldberg agency's sales manager. The latter testified that he had been in charge of the sale of the car from the beginning. It could be thought that Mr. Amir, by virtue of his duties in general and this special mission in particular, knew or at least could have found out, what the real passage of time was. In these circumstances, the very fact of the inaccuracy calls for further explanation, even though, in and of itself, it is of little weight.

           

(b) ("but actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will returned to serve the retiring Director General,) for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching." (I quoted in parenthesis the portion referring to the Corporation's intention for purposes of continuity.)

 

            The District Court found in its judgment, on the strength of testimony which the learned judge found credible, that the model year of an American car, as distinguished from a European one, starts at the beginning of the Gregorian year, although a new model car can  already be obtained toward the end of the previous year. For example, a l 967 model can be acquired in December (and in exceptional cases even in November) 1966. This finding contradicts Mr. Kotler's argument that the 1967 model was already being sold in September 1966, when the Respondents received the car. The Goldberg agency deals mainly with the sale of Chevrolets and it is difficult to believe that their sales manager of many years was not aware of this detail. It follows that by the middle of March 1967, less than a quarter of the model year had passed. In light of this fact, the words "since the end of the 1967 model year is approaching" do not, in my view, constitute an incidental detail of little importance, and they even cast additional doubt on Mr. Kotler's good faith, or that of his source of information - Mr. Amir.

 

            (c) The next paragraph states:

           

"After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 pounds for the car. The Electric Corporation's transport officer refused to approve the sale."

 

            If we had had to depend on the Appellants' witnesses I would have held without any hesitation - although I did not have the advantage of seeing and hearing the witnesses - that there was no evidentiary basis even for this claim. My reasons for reaching this conclusion are as follows:

           

            The witness Shlomo Yaacobi said that he had been at the time the only bidder (and this actually fits in with the word "buyer" in the singular in the article) and added that at first he offered Goldberg 25,000 Israeli pounds but afterwards raised the price to 25,500 pounds, which he claimed was comparatively higher than the market rate at that time. But he said in his testimony that during the course of negotiations he had telephoned Ha'aretz and told Mr. Kotler that he (Mr. Kotler) was correct in alleging that the car was not for sale. It is clear that the article had already been written at the time of that conversation, and (it must be assumed) that the witness gathered from its contents what the opinion of the author was. And when he was cross-examined on this he said: "it is possible that my first (my emphasis) contact was after 25.3.1967" (p. 11) and that "it is possible that in the light of the fact that the publication concerning the presence of the car with Goldberg was on 14.3.1967, my contact was after that date" (p. 12). It is clear that what is determinative is the state of affairs at the time the article was published and this testimony therefore becomes valueless, particularly since the burden of proof rests on the Defendants.

 

            The witness Yaacov Beckerman related that he was in the habit of getting in touch several times a week with all of the companies dealing with cars, including the Goldberg agency. That way he learned from Mr. Amir that there was an "almost completely new" car. According to him, he had to take the trouble to come no less than three times before he was able to see it, since this required special permission from Mr. Goldberg. He went with Mr. Amir to the warehouse where the car was. "It looked nice, but very dusty." When he asked what the price was he was told that he had to make an offer and this appeared unusual to him. He offered 22,000 pounds and Mr. Amir promised to give him an answer. After this visit, three months passed before he met Mr. Goldberg (p. 51). He again started with an offer of 22,000 pounds and raised it to 24,000 pounds, but he was informed that the Electric Corporation's approval had to be obtained. Up to this point the testimony appears reasonable, but elsewhere (p. 57) he declares, surprisingly, "I told Ben-Ami my offer to buy the car for 22,000 pounds without seeing it, and I saw it for the first time after the article" (my emphases). This did not prevent him from saying in another place (p. 83): "After I saw it I thought to myself that it was worth 22,000 pounds."

           

            The lapse of time of three months between his first visit, when Mr. Amir showed him the car, and his meeting with Mr. Goldberg, also goes up in smoke, as he says later (p. 62), "When I came to Goldberg it was already, as far as I can remember, after I had seen the car on that same day. It seems to me that all this happened at the same time. When I went in to examine the car and had just seen it Ben-Ami told me that it had done 6000 kilometers."

           

            Furthermore: Mr. Amir said in his testimony that the location of the car did not disturb his efforts to sell it, a matter I shall discuss more fully later. In any event, it is clear that Mr. Amir's testimony is not consistent with the great difficulty Mr. Beckerman had when he sought to see the car.

           

            But the Appellants' work was done for them in this matter by Mr. Shagal, the Respondent's transport manager, who said (at p. 273):

           

"From time to time there were offers. I received notice about them from Ben-Ami. There were three offers that I remember: 22,000, 24,000 and, lastly, 25,000-26,000. I do not remember if the last offer (my emphasis) was before or after the article. I remember that I reported it to Mr. Peled in April 1967. I do not remember when the second article appeared."

 

            Since it is known that the article was published on 14.3.1967, it follows that Mr. Shagal received two offers before then, the higher of which was 24,000 pounds. It was therefore not correct to write in the article that there was an offer from a buyer of 24,000-25,000 poounds.

           

            The correct facts alongside those detailed in the article are, therefore, as follows:

           

a.     The car was at the Goldberg agency for three and a half months and not for more than four months, as written;

           

b.    By then, the end of the first quarter of the 1967 model year was approaching and not the end of the model year itself.

           

c.     The offer that was rejected by the Respondent was for 24,000 pounds and not 24,000-25,000 pounds, as was published.

           

            In my opinion these are not inaccuracies whose cumulative weight amounts to "an incidental detail which is not actually injurious" within the meaning of section 14 of the Law which deals with the defense of truth, especially since they do not stand alone, but are in addition to the other considerations because of which the defense of "expression of opinion in good faith" is not available to the Appellants.

           

            For this reason, too, my conclusion is that this plea should be dismissed.

           

            6. But I am prepared to proceed on the assumption (contrary to my opinion) that there is no need to include within the body of the article even a minimal factual foundation so as to enable the reader to decide, for himself, if the opinion expressed has grounds, and that it is possible to content oneself with the facts published, so long the defendant (in our case the Appellants) produces in the course of the proceedings supplementary facts which together provide a proper factual basis. likewise I proceed on the assumption (again contrary to my opinion) that the imputation of an intention to deceive was an expression of opinion and not the establishment of a fact.

 

            On the basis of these assumptions, I will examine what facts, of which Kotler was aware when he published his article, were proved in the course of the action. I have limited myself as emphasized, since the facts of which he had no knowledge could in any case have had no part in the formation of his opinion. See Gatley on Libel and Slander, 7th ed., p. 293, near line 6.

           

            As already noted, Mr. Kotler testified that his information was based on one source only: Mr. Ben-Ami Amir, the Goldberg Company's sales manager (p. 209). According to him, Mr. Amir concluded that the Electric Corporation only wished to gain time based on the consideration "that otherwise it was not possible that they would place a car intended for sale in a warehouse, where it would become covered with dust for four months" (p. 214). During the course of his testimony he returned to the concealment of the car as the central consideration for his conclusion. For example, the following statements made by him appear in the protocol (at the end of p. 210 and the beginning of p. 21l):

           

"He [Ben-Ami Amir] explained to me that the car was brought to the company's warehouse but they hid it from the eyes of the public, that is, they did not want to sell it, because if you want to sell you display it. Ben-Ami Amir told me that in fact they did not wish to sell the car and that is what I wrote.

 

The car was hidden by Goldberg, apparently upon the instructions of the Electric Corporation and that is why I wrote that the car was supposedly put up for sale".

 

            It follows that even in the first paragraph of the part of the article upon which the action was based, Mr. Kotler was not other than Mr. Amir's mouthpiece, but this was not made clear to the readers.

           

            With regard to the importance that Mr. Amir attaches to the concealment of the car, as appears clearly from the above quotation, it is worth noting that this fact is not at all mentioned in the article, and what is still more important - it is not consistent with Mr. Amir's own testimony, in which he said:

           

"It is two that when they brought the car for sale to the Goldberg garage they told me to try and sell it and I really tried to sell it.... I did everything to find a buyer. I don't know why I didn't move the car and place it amongst the used cars that were for sale. I am mostly interested in selling new cars, not old ones.... I don't think that I said that the fact that it stood there was an obstacle. I did not emphasize this. True, it was not visible to people. But this was not an obstacle. The location of the car did not impede its sale".

 

Incidentally, Mr. Shagal testified as follows (pp. 273- 274):

 

"I gave the car to an agent and it was placed in a garage which was in fact a yard. Afterwards, Mr. Peled's driver, who happened to be there in the course of attending to another car and who saw that the car was very neglected, got in touch with me. I then phoned Mr. Ben-Ami and as a result the car was stored in a place where new cars were stored. I was there. Ben-Ami complied with my request unreservedly. The car was in a closed warehouse which served as a place for storing Chevrolets. It is not a basement. It was not deep down. I saw new cars there. The choice was between an open area and this place, because I did not presume to ask him to put the car in the display window since there was room there for only two cars and I saw two new cars there."

 

            In any event, Mr. Amir's testimony is sufficient to refute the main consideration which moved Mr. Kotler to write "supposedly", that is to impute to the Respondent the intention described above. Furthermore, according to him, this was the explanation which he received from Mr. Amir, and if that is the case then they contradict each other.

           

            It should be noted that even the significance of the fact that the Respondent conditioned the sale of the car on its prior approval is lessened, to a not inconsiderable extent, by Mr. Amir's testimony, since he said (p. 37):

           

"Although this is not usual, in any event there is nothing wrong in someone saying that I should receive his approval before I sell a car. The purchase of a used car is sometimes concluded in a minute. There should be a ceiling price. If there is not - then one must call for approval. There is nothing improper in this."

 

            I am aware of the fact that in another part of his testimony he converted this into almost the main consideration for the conclusion concerning the absence of any real intention to sell the car, but, after all, the burden of proof rests on the Defendants.

           

            On this point, too, it is worth turning to Mr. Shagal's testimony, who told Mr. Amir more than once that he was not prepared to lose more than 5,000 pounds. This testimony accords with the figure of 28,000 pounds that appears in the article. And in fact Mr. Shagal added in his testimony that he advised Mr. Peled to accept an offer of this sum if tendered.

           

            The fact that the Corporation did not ask for an assessment of the car by an assessor is not particularly surprising. After all the Respondent had paid 33,500 pounds for the car a short time earlier, after receiving a rebate of 500 pounds. The car had been driven 5,000 kilometers, according to the learned judge (and not 6,000 as written in the article - an inaccuracy with which I do not deal). It was suggested that Mr. Goldberg take it back for 30,000 pounds, but he refused to do so and recommended that the car be left with him to be sold. We speak about a transport manager of a large company with a lot of experience, both in sales and in general, as well as the owner of an agency for selling cars of the same kind. Is it possible that in such circumstances it was not clear what the approximate value of the car was and what price the seller could expect to get for it? So when the offers failed to come in, Mr. Shagal "descended" from 30,000 to a minimum of 28,000 pounds, and according to his testimony (it will be recalled) he informed Mr. Amir that he was not prepared to lose more than 5,000 pounds, and hence, apparently, came the need to receive the Corporation's approval if an offer of 28,000 pounds was made, that is if the loss should amount to a little more than the ceiling he laid down.

 

          The fact that a practically new car was not sold by means of a public tender could, as stated above, perhaps be a subject for public debate and criticism, although this could be seen as an exceptional case requiring unusual treatment. The Respondent's version of events in his testimony, to the effect that in this special case in particular he wished to insist on as small a loss as possible, seems reasonable and I do not intend taking a stand on whether calling for tenders - as the witness Kantor thought should have been done - would have been a more effective way to achieve the desired end.

         

          In any event the judge was correct, in my opinion, in holding that there was no connection between these matters and the subject at issue. Furthermore, I did not find in the testimonies of Messrs. Kotler and Amir any hint that they knew of, or even considered, the standard practices of the corporation, in general, and with regard to sales by tender in particular. There is no need to state once again that a fact which was not considered by the publisher is not available to him on which to base the opinion he expressed.

         

          7. Notwithstanding several doubts arising from the detailed factual inaccuracies, I am prepared to conclude that Mr. Kotler published his article in good faith based on the fact that before doing so he contacted the Respondent in order to get his reactions, but was informed that the latter would have nothing to do with him.

         

          But good faith is not sufficient. The conditions which I enumerated above must be met before the defense of "expression of opinion" becomes available to the publisher: compare the London Artists case above [191. There, too, the defendant's good faith was not in doubt.

         

          8. Mr. Lieblich argued that the judge should not have relied on the letter from Mr. Leo Goldberg, as it was admitted at the time on condition that it would not serve as proof of the truth of its content.

         

          I do not think that this error - if indeed it is an error - is sufficient to change in any way the considerations from which I drew my conclusions. I said "if indeed it is an error" because Mr. Shagal in his testimony said that "what Leo Goldberg says in his letter is right" - an answer which prima facie makes the content of his letter acceptable as evidence.

 

            9. At this stage I had the opportunity to examine Justice Shamgar's opinion and I would like to comment that the judgment in the Campbell case [25], (at the end of paragraph 4 in his judgment) is, to the best of my knowledge, still recognized in England, and is referred to without any reservations in the House of Lords' judgment in Kemsley [32]. With all due respect, I do not think that the judgment in Walker, [26], changes anything, but only adds a further dimension to the existing situation. It is referred to, inter alia, in the London Artists case, [19] on which I in any event relied, and the conditions enumerated there are not present, in my opinion, in our case.

           

            Similarly, I regret to have to dissent from my distinguished colleague Justice Shamgar's description of the facts, which is based on a completely different evaluation of the testimony from that of the District Court judge. I examined very carefully both the evidence and the judgment of the District Court, which is the subject of this appeal, and I could not find any cause for interfering with the judge's factual findings based on his personal impressions of the witnesses who appeared before him.

           

            10. The plea of "truth" was also unfounded - a conclusion which derives directly from an analysis of the evidence and of the facts proved during the course of the action.

           

            There remains for me to consider, in this context, the argument of the Appellants' counsel that the judge should have permitted him to prove the Electric Corporation's practice that a retiring director general receives the car which had been in his use, as part of his retirement conditions.

           

            If they sought to prove an improper practice, then the answer depends on the interpretation of section 22 of the Law, which is intended, in general, to prevent the presentation of evidence, and the examination of witnesses, concerning past objectionable acts on the part of the injured party, save in so far as these particulars are directly relevant to the defamation which is the subject of the action. It is clear that "... one cannot prove intent - which is a matter of the heart - save by drawing conclusions from a complex of facts" (Cr.A. 215/58, [16], at p. 394). The "intent" therefore touches directly on the subject of the action. But what intent? That is to say - the intent to abide by the promise that was announced in the press to sell the particular car, in light of the public criticism of its acquisition. It appears to me that we would breach the dam which the legislator sought to impose in the said section 22 if we were to permit the alleged objectionable promise to be proved as evidence of an intent to break a promise to the public.

           

            In any event, even if we assume - in complete contradiction of the witnesses' answers to the questions of the Appellants' counsel, as noted in the court protocols - that there was such a practice and that evidence of it was admissible, there still would not be a factual basis for the intention imputed to the Respondents. I already pointed out above that the fact that a solemn promise is made publicly constitutes strong prima facie evidence of its sincerity, and this evidence is not rebutted by proof of past sins of the Corporation which employs the maker of the promise, if in fact there were such sins. It is also not conceivable that the Respondents would have dared to use that same car again, as long as the eyes of the media were focussed on their actions.

           

            In so far as the defense of "expression of opinion in good faith" is concerned, this promise has no importance ab initio, as there is no evidence (it will be recalled) that Messrs. Kotler and Amir knew about it and took it into account amongst their other considerations.

           

            11. In light of the above considerations I would dismiss the appeal.

           

            The appeal is allowed, by majority decision, and the judgment of the District Court is dismissed.

           

            The Respondents will bear the Appellants' costs in this Court and in the District Court, including advocates' fees, in the amount of 5,000 Israeli pounds.

           

            Judgment given today, 6 Adar 5737 (24.2.1977).

 

At the Supreme Court sitting as the Court for Civil Appeals

 

C.A. 8954/11

                       

Before:                                                            The Hon. Deputy Chief Justice M. Naor

The Hon. Justice S. Joubran

The Hon. Justice N. Sohlberg

 

The Appellant:                                    John Doe

                                               

V e r s u s

 

The Respondent:                                 1. Jane Doe

The formal Respondent:                     2. Jane Doe

 

An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, dated October 11, 2011, by Justice Gila Knafi-Steinitz

 

 

On behalf of the Appellant:                Adv. Ephraim Abramson, Adv. Yifat Aran

 

On behalf of the Respondents:           Adv. Amir Fischer

 

 

Judgment

 

Justice Noam Sohlberg:

"All human beings have three lives: public, private, and secret".

(-Gabriel Garcia Marques-)

Table of Contents

The Parties and the Main Facts...................................................................................... 3

The Parties' Main Arguments in the District Court........................................................ 4

Abstract of the District Court Judgment....................................................................... 6

The Main Arguments of the Appellant in the Appeal.................................................... 9

The Main Arguments of the Respondent in the Appeal.............................................. 12

The Normative Framework.......................................................................................... 15

Freedom of Expression and Artistic Freedom............................................................. 16

The Autobiographical Composition............................................................................. 18

The Right to Privacy.................................................................................................... 21

The Right to Privacy – Scope...................................................................................... 23

The Justifications for the Right to Privacy.................................................................. 24

The Intrinsic Justification............................................................................................. 24

Instrumental Justifications........................................................................................... 25

The Right to Privacy and Intimate Relationships........................................................ 29

English Law................................................................................................................. 31

The European Court of Human Rights........................................................................ 35

Continental Law.......................................................................................................... 36

U.S. Law...................................................................................................................... 38

Interim Summary – Foreign Law................................................................................. 40

The Normative Balance between the Rights................................................................ 40

Proportionality in the Narrow Sense – a Balance of Profit and Loss.......................... 41

Freedom of Speech and the Right to Privacy.............................................................. 43

From the General to the Particular – the Right to Privacy and Freedom of Speech... 48

Degree of Fictionalization............................................................................................ 49

The Degree of Invasion of Privacy.............................................................................. 52

Protection of the Trust Relations between Couples..................................................... 52

Freedom of Speech...................................................................................................... 53

Concern of Literary Work being Shelved.................................................................... 54

Copyright and Defamation.......................................................................................... 56

Consent of the Respondent......................................................................................... 56

Conclusion................................................................................................................... 57

Prologue

1. An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, (Justice Gila Knafi-Steinitz) which granted the Respondent's motion for the issuance of a permanent injunction to prohibit the Appellant from publishing and distributing a book written by him. In addition, the Appellant was charged to pay damages to the Respondent in the amount of ILS 200,000 for her non-pecuniary damages.
2. The core issue at the center of the discussion is the question of the proper balance between the right to freedom of expression and artistic freedom on the one hand, and the right to privacy and a good reputation on the other.

The Parties and the Main Facts

3. The Appellant – a married man and father of children, who lived with his family in Jerusalem, is the author of the novel contemplated in this suit (hereinafter: the "Novel").
4. The Respondent was employed in a cinema in Jerusalem during 2001, was at that time a student in an art institute, and was living with her partner in the vicinity of the Appellant's neighborhood in Jerusalem. The details of her life were the Appellant's inspiration in writing the Novel; the Formal Respondent – the publisher – published the Novel.
5. In 2001, the Appellant met the Respondent at her workplace in the cinema. With time, the connection between the two deepened, and turned from an "acquaintance" to a close and intimate relationship, which lasted some five years – first in secrecy, then disclosed to the people close to them, and eventually published in the Novel. Following the exposure of the romantic relationship between the two, the Appellant divorced his wife and the Respondent separated from her partner.
6. In the midst of the romantic relationship, the Respondent was diligently preparing her graduation project, as part of her last year of studies, which mainly focused on a relationship developing between a man and a woman.
7. At the end of 2004, the Appellant began a work of his own, a first novel focusing on the "drama of breaking up a family" (as stated on the back of the book). The Novel describes an emerging intimate relationship between a man of the Appellant's age, who is discouraged by a non-fulfilling marriage, and a young student, starting with their first meeting at a cinema. The male-protagonist's occupation is identical to that of the Appellant; the cinema is the one in which the Respondent was employed. In the Novel, at the beginning of their acquaintance, the male-protagonist is a married man, father of children and living with his family in Jerusalem, whereas the female-protagonist, a single young-adult woman, rents an apartment in Jerusalem, close to the home of the male-protagonist, where she lives with her partner. Upon the completion of the exhausting work of writing, the Novel was published. The publication of the Novel was accompanied by a marketing campaign in the media, including an interview in the weekend supplement of a widely distributed newspaper, a TV interview and articles in newspapers and various websites.
8. Immediately upon the publication of the Novel, the Respondent contacted the Appellant and the Publisher and demanded to immediately stop the marketing and distribution of the Novel, to recall all copies already distributed, and to compensate her for her damages. According to her, the book is an accurate autobiographical description of the author's life, and it includes descriptions pertaining to the intimate aspect of the relationship between them, while severely violating her privacy and committing libel and slander: "in writing and publishing the book you breached the law, fatally violated her privacy pursuant to the provisions of Sections 2(8), 2(9), 2(10) of the Protection of Privacy Law… and published libel against her under Sections 1 and 2 of the Defamation (Prohibition) Law…" (letter of the Respondent's attorney, Adv. Amir Fishcer). The Respondent further claimed that the unlawful use of her personal letters for the purpose of writing the Novel establishes an independent cause of action under the Copyright Law.
9. Upon receipt of the said demand, the publisher notified the Respondent, in an unusual step, and without admitting to her claims, that it decided to temporarily cease the distribution of the Novel until the dispute is resolved. To that end, the publisher contacted the retail chains and bookstores and asked to retrieve the copies of the Novel that were yet unsold.
10. After some communication between the parties, and as the Respondent's said demands were not entirely fulfilled, the suit contemplated herein was filed to the Jerusalem District Court. On June 9, 2009, the Jerusalem District Court (Justice H. Ben Ami) granted the Petitioner's motion for a preliminary injunction prohibiting the distribution of the Novel written by the Appellant (M.C.M. 7649/09). A motion for permission to appeal, which was filed with this Court (L.C.A. 5395/09), was denied by Justice (his former title) A. Grunis, in his decision dated August 27, 2009.

The Parties' Main Arguments in the District Court

11. The Respondent's position is that the publication of the Novel and the its distribution severely infringe on her right to privacy, in violation of the Protection of Privacy Law, and further blemish her reputation in violation of the Defamation (Prohibition) Law. According to her, other than changing the names of the protagonists of the Novel, there is complete congruence between herself in her real life and the literary character of the female-protagonist of the Novel. For example, according to the Respondent, the book describes in an autobiographical manner and in "frightening accuracy" the Appellant's life during the time he had an intimate relationship with the Respondent; the female-protagonist's character includes many identifying details that are unique to the Respondent and enable members of her family and acquaintances to easily identify her; in addition, the author did not withhold  the internal and external realms of the Respondent's life, including her body, feelings, weaknesses, her most private secrets, her sexual activity and preferences, as well as her most intimate relationships. Moreover, according to the Respondent, the Appellant in his book, made breaching use of both her letters and her art from the graduation project, without obtaining the required consent and in violation of the provisions of the Copyright Law. With respect to the Publisher's responsibility, the Respondent argued that it knew, or at least should have known, that this is obviously an autobiographical book, and is therefore also liable for the offense and tort. With respect to the damage, the Respondent mentioned the distress caused to her, and the concomitant injury to her future personal and professional life.
12. On the other hand, the Appellant argued that the Novel he wrote is merely a fictional composition, that the real-life persons were nothing but an inspiration, and that the Novel most certainly is not a complete autobiographical and true description of the author's life. Two opinions were submitted on behalf of the Appellant by two experts of the highest caliber in the field of literature: Prof. Ariel Hirschfeld and Prof. Hannan Hever. Prof. Hirschfeld summarized his opinion in several conclusions, inter alia, that "Reading the Novel… it is absolutely clear that it has no pretense to reflect or record actual reality" (para. 32); "Accepting the claim would be a far-reaching precedent, whereby the mere possibility to identify any realistic model for a fictional character, even in the private context known to just a few, will be a violation of the law. In such case, the judicial authority undertakes the re-definition of literature and its boundaries, thus damaging the deep and essential principle of fiction, that which enables the freedom to create and interpret the human reality in its entire complexity" (para. 34). Prof. Hever summarized his opinion with the conclusion that "reviewing the aggregate weight of the existing hints… unequivocally indicates that the book deals with a creation of fiction, rather than real-life reality, and that no 'autobiographical contract' is entered into by the author and his readers. Such conclusion rebuts any claim which is based on such argument" (para. 3.3).
13. The Appellant argues that the source of the identification of the Respondent is the "confirmation bias" – a phenomenon whereby people adhere to similarities and ignore the existence of differences. The Appellant further argued that the Respondent gave her consent and even her blessing to the writing of the Novel. The Respondent read parts of the draft of the book and knew it would be about the affair she had with the Appellant, and therefore will naturally also include intimate details. The Appellant argued that attention should be paid to the fact that the Respondent refrained from reading the book prior to its publication, and thus waived the option to control its content. Moreover, the Respondent's acts amount to "false representation" to the Appellant that she will not deny the publication. According to him, once the Respondent's consented to the publication of the Novel, her argument regarding violation of her right to privacy is precluded. With respect to the Respondent's argument regarding her right to good reputation, the Appellant relies on the testimony of the author Mira Magen, whereby the personality of the female-protagonist, as it is portrayed in the Novel, is endearing in the eyes of the readers. According to him, this is not a humiliating expression, thus, it does not constitute defamation. The Appellant further noted that the Respondent submitted no evidence of the possibility to identify her, and therefore no "actual" injury to privacy had been proved. The Appellant further claimed that insofar as any damage had been caused to the Respondent's privacy, it should be balanced against his freedom of expression and artistic freedom. In such a balance, the freedom of expression prevails. In response to the Respondent's argument with respect to copyrights of her letters, the Appellant argued that their use in his book falls within "fair use". Alternatively, he argued that the Respondent gave her consent for such use. To conclude, the Appellant noted that taking the book off the shelves is inconceivable, for that is a serious and severe injury to freedom of expression and artistic freedom.
14. The Publisher repeated in its arguments some of the arguments raised by the Appellant, and emphasized that he presented the Novel to it as a fiction, hence it did not know, nor could it know, that the Novel is actually based on real events. The Publisher further noted that the Appellant stated, within the agreement therewith, that "his book is a fiction novel… the characters mentioned in it are fragments of the author’s imagination. Any resemblance to reality or to real people is completely coincidental and resulting from the author's imagination or the acquaintances he had in the course of his life" (Section 1.1a of the agreement). The Publisher further noted its fair conduct, from the moment it learned of the Respondent's claims, upon which it put halt to the sales of the book and had it removed from the shelves.

Abstract of the District Court Judgment

15. The District Court first reviewed the main argument of the experts on behalf of the Appellant, Messrs. Hirschfeld and Hever that "the mere publication of a composition as a work of fiction, which has the common literary characteristics of a work of fiction, creates an inseparable border between the content of the work and reality, and bars the review of the content of that composition as a documentary work which records reality" (para. 30 of the Judgment). In addition, the Court addressed the experts' main concern whereby "adopting the alternative position, whereby a work of literature, even when declared to be fictional, might be perceived as a violation of privacy, may lead to a slippery slope…" (ibid). In the second stage, the District Court noted that in this case there is "a dilemma, pertaining to the tension between two important values, which are perceived as two basic rights in a free and democratic society: artistic freedom on the one hand, and the right to privacy on the other" (para. 31 of the Judgment). At the third stage, the District Court ruled that "neither one of these rights can be granted absolute protection, and it is therefore also not possible to adopt  the sweeping position that mere publication as part of a work of literature is sufficient to bar consideration of the violation of privacy argument on its merits. The same position was adopted by the legislator" (para. 36 of the Judgment). The District Court thus denied, de facto, the argument that a fictional novel in itself – by virtue of its literary definition – grants its author absolute protection against any claim of violation of privacy. At the same time, the District Court reserved and stated that "the argument of violation of privacy based on fictional literature will not be easily accepted. The author's argument of fiction… is a weighty argument which has a substantial contribution to the prevention of the violation of privacy", however, it is not enough to exclude it altogether (para. 37 of the Judgment). "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (ibid).
16. Thereafter, the District Court reviewed the contemplated literary work itself, i.e. – is this a fictional novel, or "documentary literature disguised as a fictional novel" (para. 37 of the Judgment). Following a meticulous review, the District Court ruled that the "character of the female-protagonist in the book includes many unique identification details that identify the Plaintiff therewith in a definite and unequivocal way" (para. 40 of the Judgment). Such unique details include her "…physical appearance, informative details regarding her age, unique occupation, place of studies, work place and residence, details pertaining to her unique art work, identifying details of the defendant, her partner, and events that took place in reality in the presence of third parties…" (ibid). The inclusion of the said identifying details led the District Court to the conclusion that "the Respondent's family members, associates and acquaintances, will unquestionably identify the Respondent as the female-protagonist of this book" (para. 41 of the Judgment). The District Court further stated, in response to the Appellant's argument, that in order to prove the identification, there is no need to present witnesses who will expressly identify the literary character with the Respondent. Such identification transpires, according to the District Court, from the book itself.
17. Having reviewed and considered the parties' arguments with respect to the violation of privacy, the District Court concluded that the violation of the Respondent's privacy derives from the aggregate weight of two main components:
    
    1. The numerous identifying details that indicate that the Respondent, who is not a public figure, is unmistakably the female-protagonist of the Novel written by the Appellant;
    2. The number of issues exposed in the book that pertain to the core of the individual's privacy, and their scope and nature.

The aggregate weight of these two factors, according to the District Court, "rebuts the author's fiction argument " (para. 51 of the Judgment), and turns the Novel to a documentary book disguised as a fictional composition. In other words, the author "abused the characteristics of fictional literature, in order to document his relationship with the Plaintiff, while severely damaging her privacy" (ibid). The District Court emphasized that the violation of the Respondent's privacy could have easily been avoided "insofar as her character… would have been camouflaged and made indistinct by disguising details". However, the District Court noted that the Appellant's insistence on including in his book many details that identify the Respondent as the female-protagonist of his book, and his choice to stay as close to reality as possible work against him: "instead of 'distancing' the work from the Plaintiff, and detaching it from the milestones of the reality of his relationship… the Defendant chose to firmly anchor it in a specific reality, known and recognized not only to himself and the Plaintiff, but also to numerous third parties" (para. 52 of the Judgment).

18. The District Court denied the Appellant's argument that the Respondent ostensibly gave her consent to the publication of the Novel. Relying on an "array of evidence" it was held that the Appellant failed to prove that the Respondent indeed gave her "informed consent, whether expressly or implicitly, for publications that contain violation of her privacy" (para. 59 of the Judgment). First, the book, in its full version, was never submitted for the Respondent's perusal – neither in its original nor in its final version – and her consent for its publication was not requested (ibid); second, the Appellant admitted that he initially considered publishing the book under a pseudonym, and contemplated this option up until the book’s publication (para. 60 of the Judgment); third, the Respondent's objection, prior to the book’s publication, to mentioning the name of the institute where she studied (para. 61 of the Judgment); fourth, the Appellant's response to the Respondent's arguments following the book’s publication (para. 62 of the Judgment); fifth, the "charged" and impressive testimony of the Respondent in the District Court (para. 63 of the Judgment). In conclusion, the District Court ruled that "not only did the Plaintiff not give informed consent to the violation of her privacy, but she clarified to the Defendant, prior to the publication, that she forbids him to include any detail that might lead to her identification in the book." (para. 65 of the Judgment).
19. Regarding the right to a reputation, the District Court ruled that the question whether the Novel refers to the Respondent in a "humiliating, offensive or demeaning" manner shall be decided according to an objective standard of the reasonable person. The mere fact that the Respondent is described in the Novel as "someone who carried an intimate relationship with a married man, and did that in parallel to the relationship with her partner at the time… someone who will trample anything in her way to reach her goals, and someone who is using people 'as if they were objects'" (para. 68 of the Judgment) in itself constitutes defamation.
20. The District Court denied the Appellant's arguments that various defenses are available to him under the Protection of Privacy Law and the Defamation (Prohibition) Law. Regarding the defense of public interest under Section 18(3) of the Protection of Privacy Law, the District Court held that "the Law… does not extend absolute protection to any literary composition… the Law only extends protection to the infringement of privacy when there is 'a public interest which justifies the infringement under the circumstances'" (para. 72 of the Judgment). The Appellant failed to establish any reason to justify the satisfaction of his freedom of expression in such an offensive manner, and it could have easily been satisfied by publishing the Appellant's artistic work without infringing the Respondent's privacy. Regarding the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law and Section 15(6) of the Defamation (Prohibition) Law, the District Court held that the violation was not in good faith. The Appellant acted to publish the Novel in its full version, and paid no attention to the Respondent's demands to refrain from publishing it.
21. With respect to the Respondent's arguments regarding violation of copyright of her letters, the District Court held that the proof of the infringement of privacy and the remedies resulting therefrom render the need to decide on the issue of copyright to the letters redundant. The District Court noted that even if the Appellant's acts do constitute a violation of the Respondent's copyright "this does not justify compensation beyond the compensation that was determined" (para. 80 of the Judgment).
22. Regarding the liability of the Publisher, it was ruled that its acts do not establish legal liability under Section 31 of the Protection of Privacy Law and Section 12 of the Defamation (Prohibition) Law. "In the matter herein, Defendant 2 did not have to know, on the basis of the facts available to it at the time of the book’s publication… that the book includes a violation of privacy with respect to the Plaintiff" (end of para. 85 of the Judgment).
23. Therefore, the District Court prohibited the publication of the book and its distribution. The monetary compensation to the Respondent, for her non-pecuniary damages, was set at ILS 200,000, after the District Court had considered the scope of the violation of the Respondent's privacy, nature of the publication, number of books distributed, pain and suffering caused to the Respondent, the Appellant's behavior, insisting on the publication of the Novel even after her requests and demands to refrain therefrom, and additional considerations.

The Main Arguments of the Appellant in the Appeal

24. According to the Appellant's position, the District Court erred in its interpretation of the Protection of Privacy Law. According to him, "the status of fictional works does not depend on the ability to identify their sources of inspiration but rather on the probability that their content would be attributed to the Plaintiff as a true description". In other words, "fictional compositions have a special status because of the interpretation of the text and not because the lack of identification of the sources of inspiration". The Appellant argues that "under the existing legal status, the attribution of the published content" to the Respondent requires the fulfillment of two cumulative conditions: first, the identification of the real character with the fictional one; and second, the interpretation of the literary text as a "true description" pertaining to the real person. However, according to the Appellant – in terms of what the law ought to be – the proof of another element should be required: "the proof of malicious intent on the author's part". Alternatively, the Appellant argues that lack of fulfillment of the said second condition is seemingly sufficient to grant the appeal herein, while reversing the judgment of the District Court.
25. The Appellant further notes that the common position in case law is that the Defamation (Prohibition) Law can be considered as a helpful tool in the interpretation of the Protection of Privacy Law. Pursuant to Section 3 of the Defamation (Prohibition) Law (concerning "means of expressing defamation"), omitting the name of the party injured by the publication "does not preclude defamation, provided that the content pertains to him"; i.e. – according to the Appellant, the Respondent must prove that the combination of the published content with external circumstances, indeed leads to the attribution of the published content to her. The Appellant further refers to the ruling of the District Court, whereby "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (see Para. 16 above). According to the Appellant, "reasonable reading of the Novel, which takes into account its metaphoric nature… does not lead to the conclusion that the content of the book is true and reflects the reality of the Respondent's life" (para. 39 of the Appellant's summations).
26. According to the Appellant, the test of the "ability to identify the injured person", which was adopted by the District Court, cannot be used as a single condition for the classification of a literary composition as a documentary text, for the purpose of implementing the Protection of Privacy Law and the Defamation (Prohibition) Law. Even more so, according to him, the sources of a fictional composition can almost always be identified. "The unwritten common contract between artists and art consumers in the western culture is that all those books that are published and distributed under the title of "Fiction" do not document reality but are a fiction for all intents and purposes". Moreover, the Appellant warns against the adoption of a legal policy that encourages lawsuits against authors, requiring them to "confirm or deny the degree of similarity between the book’s plot and the reality of their lives". According to him, this state of affairs places authors in an inherently inferior position, i.e. – the similarity is more easily noticed than the differences, in view of the proven existence of the psychological phenomenon called the "confirmation bias".
27. The Appellant argues that the discussion in the District Court’s judgment "was flawed by over-interference in considerations of artistic editing", and ignored the fact that, in any case, there was no proximate cause between the inclusion of the details in the Novel and the identification of the female-protagonist with the Respondent. According to him, the District Court erred in accepting the argument that his choice to write the Novel under his own name, rather than under a pseudonym, precipitates his identification with the male-protagonist, and consequently – the identification of the Respondent with the literary character of the female-protagonist.
28. The Appellant further disagrees with the District Court's ruling that the violation of the Respondent's privacy could have easily been avoided by blurring and camouflaging identifying details. According to him, such ruling is based on "retrospective wisdom", and therefore cannot attest to his "offensive" intent. In this context, the Appellant further notes that the Respondent's consent to a detailed description of her unique work of art in the Novel, realizing that the readers may associate her with the literary character, cannot be ignored.
29. According to the Appellant, the District Court erred in giving no weight to autobiographical artistic freedom. According to him, the book contemplated herein is nothing but a fictional Novel, and in any event the Court must balance the Appellant's autobiographical artistic freedom against the Respondent's right to protection of privacy. Denying the Appeal at bar, according to him, may put an end to autobiographical writing as a whole.
30. Moreover, the Appellant argues that the District Court erred in applying, de facto, a vertical balancing of rights rather than horizontal balancing; i.e. – prioritized the Respondent's right to privacy over the Appellant's freedom of expression. According to him, the District Court used a "statistical formula" whereby there is high probability that the Respondent will be identified in a manner that may lead to a violation her privacy. Alternatively, the Appellant argues that horizontal balancing implies that he should be allowed to make corrections to his work. In support, the Appellant notes that in the hearing held on June 13, 2011 before the District Court, he offered to delete parts of his book and change the characteristics of the female-protagonist, as will be required.
31. According to the Appellant's position, the District Court erred in ruling that the Novel is excluded from the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law in the circumstances of Section 15(6) of the Defamation (Prohibition) Law. The Appellant supports his arguments, inter alia, on the testimony of his friend, who noted that the Appellant acted "under the belief that the Plaintiff will be glad and proud of the character whose creation was inspired by her, and of the entire Novel, which is an expression of appreciation of her graduation project". Therefore, according to the Appellant, the District Court erred in ruling that the "violation was not in good faith. The Appellant was informed that the Plaintiff objects to the publication, and he therefore cannot claim that he believed in good faith that he was entitled to do so".
32. The Appellant argues that "the appropriate balance between artistic freedom and the protection of privacy, in lawsuits pertaining to an argument of violation of privacy in fictional compositions, will be obtained by a test that will focus on the question whether the author acted with malicious intent". According to him, the factual matrix indicates that he had no "malicious intent" in publishing the book contemplated herein or at least in the humiliation of the Respondent. On the contrary, the close acquaintance with the Respondent and her behavior during their relationships "caused the Appellant to truly believe that the Respondent does not recoil from exposure", and even more so from the publication of a Novel for which she was the inspiration. Thus, this is not a violation of the Respondent's privacy that will prevail over the Appellant's freedom of expression. Moreover, the Appellant argues that mere negligence is insufficient in itself to hold the author of the composition liable, due to fear of "abuse" of fictional literature. However, under the circumstances herein, the District Court held that the Appellant's negligence in obscuring the identity of the source of inspiration for a character in the book is sufficient to justify the prevention of its publication and the prohibition of its distribution.
33. Based on the defense of "public interest" under Section 18(3) of the Protection of Privacy Law, the Appellant argues that there is "public interest" in the publication of the Novel contemplated here. "The Novel concerns a universal issue: romantic relationships, the world the man and the world of the woman, marriage, parenthood, love and its collapse… at the center of public discourse…". As evidence, the Appellant refers to readers' letters sent to him following the publication of the Novel which describe "a deep sense of identification with the protagonists". According to the Appellant, the position adopted by the District Court, whereby "literature will not be harmed if writers are prohibited from including [in the composition] details that enable the identification of the sources of inspiration" in fact seeks "to eat the cake and leave it whole". Adopting a judicial policy in the spirit of the aforesaid position, might condition on the artistic freedom of writers by stating: "you [authors – N.S.] may develop the fictional characters as you please, with the exclusion of details that later, potential injured persons may appear and argue to be exposing their identity". The Appellant again notes that he proposed to the District Court to allow him to edit the Novel such that details which may be viewed as "lacking public interest" will be omitted, and therefore, the extinction of the Novel as a whole is a disproportionate judicial ruling.
34. According to the Appellant, the District Court erred in imposing the entire legal liability on him. He believes that "pursuant to the consideration of fairness, he who benefits from an activity should bear the consequences thereof". The Appellant thus insinuates, indirectly, that liability should have been imposed on the Formal Respondent, as the publisher who gained most of the royalties resulting from the publication of the Novel. The Appellant further notes that "contributory fault, implied consent or at least voluntary assumption of risk on the Respondent's part should be added in the matter at hand" as she knew for three years that he was writing a Novel inspired by the relationship he had with her.
35. The Appellant further complains on the lack of balance, according to him, in the remedies ordered by the District Court. He believes that the District Court erred in not issuing a more proportionate injunction, i.e. – 'limited in time', or alternatively one that conditions the publication of the Novel on the omission or re-editing of parts thereof. The Appellant further challenges the amount of monetary damages awarded, which is not based on proven damage to the Respondent, and does not properly weigh additional considerations.

The Main Arguments of the Respondent in the Appeal

36. According to the Respondent, the Appellant, who neglected to attach his affidavit to the Exhibit Volume on his behalf, does not dispute the factual findings determined in the judgment of the District Court. Under these circumstances, his arguments related to the legal conclusions at the basis of the Judgment creates a difficulty with the line of argument on which his appeal is based.
37. The Respondent further notes that the District Court rightfully denied the Appellant's argument, whereby the publication of an intimate relationship guised as a literary Novel is allegedly sufficient to make the protection against an expected violation of privacy redundant. According to her, the Appellant seeks to add an "artificial defense" to the provisions of the Protection of Privacy Law and the Defamation (Prohibition) Law, in contrary to the position of the legislator.
38. The Respondent relies on the ruling of the District Court whereby the fiction argument used by the Appellant is an "empty shell" and that the Novel's storyline is an exact reflection of reality, including many events which took place and were experienced by the Appellant and the Respondent in the presence of third parties. The Respondent supports her arguments on the reasoning of the District Court’s Judgment for the denial of the Appellant's position that the Novel is a fictional composition, and in the holding that the Appellant's arguments regarding the tests that should be applied in the deliberation of a fictional composition are baseless.
39. The Respondent further argues that the Appellant's position that "lawsuits for damage to reputation and violation of privacy that pertain to fictional compositions, will only be accepted in exceptional and rare cases" does not contradict the judgment but rather supports it. The issue at bar is indeed an "exceptional and rare case".
40. The Respondent also refers to additional factual arguments raised by the Appellant, including the passing of time between the beginning of the intimate relationship between the Appellant and the Respondent, and the publication of the Novel. However, there is no need to provide further details within the Appeal herein. Moreover, the Respondent argues that the Appellant's attempted "comparison" – i.e. the comparison of his personal liability to that of the publisher, is irrelevant.
41. According to the Respondent, the Appellant's fear that "similarity is far more evident than differences" was considered by the District Court, which specifically qualified and clarified that “a claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself " and where there is, in addition, "clear and inevitable identification".
42. The Respondent argues that the absurd expected outcome of "burial of masterpieces of the Hebrew Literature" described by the Appellant with respect to the Judgment of the District Court – has no grounds and is argued in vain. According to her, freedom of expression and artistic freedom will only be limited under "exceptional and extreme circumstances of certain and inevitable identification, and when the scope of the violation of privacy and damage to reputation and its magnitude, are that severe".
43. With respect to the Appellant's argument that a "third element" should be required – the establishment of malicious intent on the part of the author – the Respondent argues that such requirement imposes too heavy of a burden on the injured party – "to prove the veiled inner motivations of the perpetrator". Under the circumstances of the Appeal at bar, the Respondent believes that in light of her repeated pleadings not to publish the novel, the "malicious intent of the Appellant, and at the very least, his total apathy in view of the damage caused to the Respondent upon the publishing of the book – was also proven".
44. According to the Respondent, the Appellant's decision to publish the Novel under his own name contributed to her identification with the female protagonist of the Novel. According to her, the rulings of the District Court should not be viewed as "over-interference in considerations of artistic editing" but rather as an "obvious logical conclusion". The Respondent further denies the Appellant's argument that the District Court allegedly founded its conclusions on "hindsight", since "had she known of the many, more specific, details included in the book which lead to her identification, she would have overtly objected to the publication of the book". Not only did the Appellant deny the Respondent's pleas, he also ignored the pleas of his former wife and mother of his children, who appealed to him to avoid the publication of the Novel.
45. With respect to her alleged consent to include a detailed description of her unique work of art in the Novel, the Respondent refers to the factual ruling of the District Court in this respect: "all that was presented to her was a paragraph pertaining to her work". According to her, it was proved to the District Court that she had no knowledge of the Appellant's intention to include in the Novel descriptions that would violate her privacy and damage her reputation.
46. According to the Respondent, the superiority of the freedom of autobiographical expression in the American Law, on which the Appellant relies, exists "only in cases where it is intended to promote a justified public interest". Regarding the issue of public interest in publishing the Novel contemplated herein, the Respondent refers to the Judgment of Justice (his former title) A. Grunis in L.C.A. 5395/09: "In the matter at bar, the publication of the book does not reflect a public interest of high importance. The Respondent is not a public figure. The events which are argued to be described in the book occurred in private circumstances. The public has no special interest in these details" (ibid, Para. 6). Moreover, review of the judgments referred to by the Appellant clearly indicates that the infringements described therein are limited – in both scope and magnitude – in comparison to the damage caused to the Respondent; in any case – these are foreign judgments that do not bind the courts in Israel, which "already deliberated – in three different tribunals – the facts of the specific case at bar, and fully denied the thesis at the basis of the Appeal".
47. The Respondent argues that horizontal balancing between rights does not mean orders will be issued regardless of applicable law, but rather balancing between rights of equal standing and deciding which one will prevail under the circumstances of the case at hand. According to her, the District Court rightfully ruled that the Novel inflicts severe damage to her privacy and reputation, and that the Appellant and his book are not protected by the defenses prescribed by law. Moreover, the Respondent claims that the Appellant's proposal to allow the publication of the Novel subject to changes is merely a "manipulative empty proposal"; and putting a time limit of the publication, as he proposed, is expected to backlash in the future and hit her "again, and perhaps more severely than the first time".
48. With respect to the defense of good faith, the Respondent notes that this is a typical factual question that was discussed and decided by the District Court, and in which the appellate jurisdiction should not interfere. Moreover, according to the Respondent, the testimony of the Appellant's friend regarding his intentions in publishing the Novel is not free of doubt. The Appellant knew of the Respondent's demands and requests to refrain from publishing the Novel, thus it is unclear how he can  "hold the stick at both ends". According to her, the Appellant's criticism regarding the requirement of the artificial foundation to prove "malicious intent" in publications, should "be directed at the legislature that determined the limitations of the defense of good faith", and not at the Court.
49. With respect to the defense of "public interest", the Respondent claims that the Appellant relies in his arguments on the online response of an anonymous reader who said the book moved him. According to her, the Appellant's interpretation of the said term strips it of any content or meaning, and in any event – there is no room for comparison between the public interest and damage to the reputation of Captain R. (see C.C. (District Jerusalem) 8206/06 Captain R. v. Dr. Ilana Dayan (December 7, 2009); C.A. 751/10 John Doe v. Dr. Ilana Dayan (February 8, 2012) (hereinafter: "re. Captain R.") and the public interest in the publication of the Novel and the degree of the violation of the Respondent's privacy and damage to her reputation. In this context, the Respondent again refers to the above cited dictum of Justice (his former title) A. Grunis, that "the publishing of the book does not reflect a public interest of high importance". 
50. According to the Respondent, the Appellant's argument that "he who gains from the activity" should be held liable is unclear, and in any event – is not supported by the letter of the law. The Respondent further notes that attributing contributory fault to her own acts is inconsistent with the factual findings determined in the Judgment of the District Court.
51. The Respondent claims that the Appellant failed to present pertinent case law to support his argument that the monetary compensation awarded does not represent proper balance and proportion. On the contrary – the only judgment discussed in the Appellant's summation is the aforementioned re. Captain R., in which the District Court awarded non-pecuniary damages in the amount of ILS 300,000, which was later reduced by the Supreme Court to the amount of ILS 100,000. According to her, the scope of interference of the appellate jurisdiction in damages of that kind is restricted to exceptional cases only. Furthermore, according to the Respondent, the damages set by the District Court are significantly lower than the rate of statutory damages to which she is entitled in view of the magnitude of the violation of her privacy and damage to her reputation.
52. The Respondent further notes that the District Court refrained from deciding the copyright infringement cause of action on its merits. According to her, the Appellant's arguments with respect to both the issue of "fair use" and her alleged consent to the publication of the Novel, are inconsistent with the factual findings as determined in the judgment of the District Court. Additionally, as aforesaid, the District Court did not rule on the independent cause of action of copyright infringement, as it was content with the proof of the violation of the Respondent's privacy. However, the Appellant, on his part, did not bother to address this cause of action in his summations, and therefore, even on such grounds alone, his appeal cannot be accepted.

The Normative Framework

53. The decision regarding the nature of the relationship between "freedom of expression" and "the right to privacy" and the balance between them, is at the core of the social treaty. Section 1 of the Basic Law: Human Dignity and Liberty prescribes that “The fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel”. The "values of the State of Israel as a Jewish and democratic State" are embedded in the Basic Law (Section 1A) and they will guide us. We must turn to explore the fundamental principles at the basis of our legal system. Many pens have been broken, and many keyboards will be worn out in the attempt to define the proper balance between the contemplated basic values. The burden imposed on judges in decisions of a constitutional nature is a heavy one. The fear to possibly damage the freedom to create art, compositions which express the inner desires of the artist and are an inspiration the public, a model to be followed and identified with and at times even spark for social change, weighs against the fear to permit an invasion into the private realms of the individual. "The blessing is only found in that which is kept out of sight" (Bavli, Taanit H, B) with respect to issues pertaining to the inner-personal sphere of the individual. Emergence into the world, untimely and without the full consent of an individual, can actually destroy lives.
54. The proper judicial balance will be decided after examination of the conflicting rights in each case on its merits. The Appeal at bar concerns artistic freedom, including the autobiographical composition. Setting the boundaries of the exact applicability of this right, in consideration of its siblings in the family of rights – the right to a reputation and the right to privacy – is the essence of the Appeal at bar.

Freedom of Expression and Artistic Freedom

55. As is well known, freedom of expression is one of the pillars of our democratic governance, and is one of the basic anchors of the society in which we live. The importance of freedom of expression is amplified in the Israeli society, which is characterized by substantial, even polar, conflicts of opinion, on issues pertaining to the roots of human existence. Israeli law embodies perennial Jewish tradition which encourages dialogue, as concisely verbalized by the expression "these and these are the words of the living God" (both interpretations are legitimate) (Bavli, Eiruvin, 13, 2). Viewing the freedom of expression as a "superior" right (H.C.J. 73/53 "Kol Ha'Am Ltd. v. the Minister of Interior Affairs, PDI 7 871, 878 (1953) (hereinafter: "re. Kol Ha'Am") and as the "heart and soul of democracy" (Cr.A. 255/68 "the State of Israel v. Avraham Ben Moshe, PDI 22(2) 427, 435 (1968)) is grounded in the reality of life in Israel, as well as in the sphere of faiths and opinions which is at the basis of the definition of the State of Israel as a Jewish State.
56. In this sense, freedom of expression serves as a cultural anchor that is partially rooted in the democratic foundation of the State of Israel – "democracy is first and foremost a governance of consent – the opposite of a government based on force. The democratic process is therefore a process wherein the common goals of the people and the way to achieve them are selected through deliberation and verbal negotiation, i.e. by way of open settlement of the problems on the agenda of the State and free exchange of opinions in respect thereof" (re. Kol Ha'Am above, p. 876); the freedom of expression is also partially rooted in the Jewish foundation of the State – "and the entire dispute between the Tanaim, the Amoraim, the Gaonim and the Poskim, is in fact the words of the living God, and the Halacha includes them all; Moreover, this is the glory of the Holy Torah, whereas the Torah is read as singing, and the beauty of the song is the disparity of voices. This is the essence of music" (Aruch HaShulchan, Hoshen Mishpat, introduction). "Just as their facial features differ from one another, so their opinions are not identical, but rather they each have an opinion of their own… since Moses asked God, at death's door he said to him: oh Lord, the minds of each and all are revealed before you, and they are not one. When I pass, I plead you to appoint a leader that will be able to handle each and every one of them in accordance with his own mind" (Numbers Rabbah (Vilnius), Pinchas, Section 21;  for further detail see the dictum of Justice (his former title) M. Alon in E.A. 2/84, Neiman v. the Chairman of the Central Election Committee for the 11^th Knesset PDI 39(2) 225, 294-297 (1985); Aviad HaCohen "Freedom of Expression, Tolerance and Pluralism in Jewish Law" 45 Mincha le'Menachem (Hana Amit, Aviad Hachohen and Haim Be'er editors, 2007).
57. Hence, the freedom of expression in Israel stands on two foundations – Judaism and democracy (see the dictum of Justice (his former title) A. Barak in H.C.J. 6126/94 Senesh v. the Israel Broadcasting Authority PD 53(3) 817 (1999) (hereinafter: "re. Senesh").
58. Freedom of expression extends to artistic expression. This form of expression has unique characteristics, that require unique protection. The importance of art is in the development of human culture, and in being a means to express and execute one's inner wishes; its importance gives art its unique status. In his artistic work, the private boundaries of an artist are broken and place the artistic freedom as a social value. "Freedom of expression is the artist's freedom to open his heart, spread his wings and set his mind free" (H.C.J. 14/86 La'or v. the Council for the Review of Films and Plays PD 41(1), 421, 433 (1987). With respect to the scope of artistic freedom, it was held as follows: "Such freedom is more than the freedom to express commonly accepted opinions. It is the freedom to express deviating opinions, with which the majority disagrees. It is the freedom to not only praise the government, but also to criticize it. It is the freedom to create any work of art, whether of a divine artistic value and whether of no artistic value whatsoever, and even if it is – as the Council found – 'an offensive paste of erotica, politics and perversions of all sorts and kinds'" (ibid; on creation in Jewish law see: Alexander Ron "On Artistic Creation and Artistic Freedom" Parashat Ha'Shavua 63 (Truma, 5762)).
59. The status of artistic freedom is established, according to one doctrine, in the freedom of expression, i.e., freedom of expression in itself yields "the freedom of artistic work including literature and the various displays of visual art" (see: H.C.J. 806/88 Universal City Studios Inc. v. the Council for the Review of Films and Plays, PD 43(2) 22, 27 (1989)); according to another doctrine, the unique characteristics of the artistic expression require that artistic freedom be an independent right. "It can be seen as a standalone constitutional right. It is based in the perception of humans as autonomous creatures who are entitled to self-realization, both as creators and as consumers of art. Indeed, artistic freedom is the freedom of an artist to create. It is the freedom of choice with respect to the topic and its presentation, and the freedom of others to hear and comprehend" (H.C.J. 4804/94 Station Film Co. Ltd. v. the Council for the Review of Films and Plays, PD 50(5) 661, 677 (1997)).
60. I find no real difference between those who think that the status of the right to artistic freedom is that of a "primary right" and those who think it is merely a "secondary right" (for the distinction between a "primary right" and a "secondary right" see: Aharon Barak Proportionality – Constitutional Rights and Their Limitations 76-78 (2010) (hereinafter: "Barak, Proportionality"). Whether you support this position or the other, it is necessary to define and limit the characteristics of the right. This will be done according to the unique rationales on which it is founded. Such rationales form the "genetic code" of the right, and determine the scope of its applicability. They are conceived in the theoretical legal laboratory and move to the world of practice. The justifications can be viewed as the scalpel and hammer in the hand of the sculptor, assisting to clearly chisel the image of the right and distinguish between similar issues; "like silver touched by the silversmith – alloying and merging as he pleases" (the liturgical poem  "like substance touched by the artist", Yom Kippur prayer). In the realm of rights, the rule of "complete separation of realms" (Bavli, Brachoth 48, 2) does not apply. On the contrary, the rights are combined and integrated, sometimes to an inseparable degree. Chiseling is not an easy task, and it can occasionally upset one of the rights and its beneficiaries. The Court will not easily decide the exact scope of applicability of the right. Decisions of this kind have deep and wide impact, and may affect social life, commerce, culture, art, politics and more.

The Autobiographical Composition

61. Freedom of expression stands on three pillars: the exposure of the truth, personal wellbeing and its value in the democratic regime (see Aharon Barak "The Tradition of Freedom of expression in Israel and its Problems" Mishpatim 27, 223, 227-228 (5757)). These pillars do not equally support each and every instance of freedom of expression. Some instances are supported by all rationales; others are only sheltered by some. The strength of the rationales at the basis of each instance also varies. Examining the rationales and their strength will determine the level of protection extended to the expression. "Not all rationales [supporting the freedom of expression – N.S.] are equally present in all types of expressions. If an expression does 'not fall under' the rationales for freedom of expression, this may influence the degree of the legal protection extended thereto" (H.C.J. 606/93 Kidum Entrepreneurship and Publishing (1981) Ltd. v. Israel Broadcasting Authority, PD 48(2) 1, 12 (1994) (hereinafter: "re. Kidum"). The status of the autobiographical artistic freedom will be determined in light of the "quality" and "quantity" of rationales at its base. Prior to examining these rationales, we wish to post the following words as a guiding road sign: "The literature, painting and sculpture manifest the spiritual values which are inherent to the human soul; so long as there is a single drawing still concealed in the depth of our souls and yet unplaced on paper, art is obligated to produce it" (Rabbi Kook, Olat Reaya 2, p. 3).
62. The justification of personal wellbeing emphasizes that "without allowing people to hear and be heard, to read and to write, to speak or be silent, one’s humanity is flawed, since his spiritual and intellectual development are based on his ability to freely form his perspective" (see: H.C.J. 399/85 Kahana v. Israel Broadcasting Authority, PD 41(3) 255, 274 (1987) (hereinafter: "re: Kahana"). And elsewhere: "The importance of the principle [freedom of expression – N.S.] also lies in the protection that it extends to a distinctly private interest, i.e. the interest of each individual, by virtue of his humanity, to fully express his qualities and personal virtues; to nurture and develop its self to the maximum; to voice an opinion on any matter which he considers vital for him; in short – to speak his heart, so that life seem worthy to him (re: Kol Ha'Am p. 878). Case law further emphasized the close connection between this pillar of the freedom of expression – man's personal realization – and human dignity (see: Aharon Barak Human Dignity 717-721 (2014) (hereinafter: "Barak, Human Dignity")); it was held that "this argument [of personal wellbeing – N.S.] ties the freedom of expression to human dignity" (re. Kahana above, p. 273) and "what is human dignity without the fundamental right of a person to hear his fellow humans and make himself heard; develop his personality, form his perspective and achieve self-realization?" (P.P.A 4463/94 Golan v. Israel Prison Service PD 50(4) 136, 157 (1996)).
63. The autobiographical artistic freedom is in fact a manner of expression which materializes this justification almost in its entirety. Autobiographical writing is personal, intimate writing, which expresses the writer's life story. Such writing is a basic human need that is veiled in the hearts of many people. The execution, the relief experienced by the author when the drawing of ideas from the depths of his soul is completed, is the strongest evidence of the importance of the publication of an autobiographical composition. The expansion of the phenomenon of autobiographical writing, across all walks of life, is yet another evidence of the importance thereof to human development. We are no longer in the era when autobiographical writing is the realm of the few, those outstanding people who were lucky to describe, through the telling of their personal story, the story of their generation. Nowadays, every person with an internet connection and a keyboard can write his life story and publish it on the global network. Stories that were once secluded now move forward to the front of the stage, and stories that were previously published and famous now retreat into the background. Autobiographical writing is therefore of great importance, to the individual and society, for self-realization and the promotion of literary creation.
64. As aforesaid, the justification of the right to autobiographical creation does not end with the personal justifications for freedom of expression; societal justifications provide another plentiful source from which this right flows. Pursuant to the justification of exposure of truth "The freedom of expression must be guaranteed in order to enable the competition between various and diverse perspectives and ideas. From this competition – rather than from the dictation of a single governmental "truth" –the truth will arise, as the truth is destined to prevail in the battle of ideas" (re: Kahana, p. 273). The right to autobiographical artistic freedom assists the realization of this rationale. Seemingly, as the number of people who write their life stories will grow, human knowledge will grow respectively, as will the ability to reach the bottom of truth. Human knowledge is not equally dispersed in the town square. Groups with better exposure and accessibility to media have greater ability to communicate information. The existence of autobiographical writing will help us to break the "monopoly of knowledge" and also obtain information from non-conventional channels (for additional information see: Sonja R. West., The Story of Me: The Underprotection of Autobiographical Speech, 84(4) WASH. U.L. Rev.905, 944-948 (2006)) (hereinafter: "West").
65. The importance of autobiographical artistic freedom is also rooted in the democratic justification. "Freedom of expression is a pre-condition for the existence of democracy and its proper operation. Free voicing of opinions and their unlimited exchange between fellow men is a contitio sine qua non for the existence of social and political governance in which a citizen may fearlessly consider, through the study of information, what is required, as per his best understanding, for the benefit and wellbeing of the public and of individuals, and how the existence of the democratic governance and the political structure in which he lives can be secured… the democratic process is conditioned, as aforesaid, on the possibility to hold an open discussion of the problems on the agenda of a State, and the free exchange of opinions in respect thereof… it cannot be perceived that elections in a democratic regime be held if they are not preceded by an opportunity to exchange opinions and attempt mutual persuasion and without holding the deliberations and discussions that form public opinion, which has a vital role in every free regime. The above, as aforesaid, is as valid during elections as it is in other times" (H.C.J. 372/84 Kloppfer Nave v. the Minister of Education and Culture, PD 38(3) 233, 238-239 (1984)). The autobiographical artistic freedom cherishes the importance of the direct flow of information between the author and the public. Public channels of information are supervised by several "veto players" which prevent the free flow of information. Media, governmental censorship, the legal system and the laws, access to wealth – are just some of the barriers confronted by owners of information who seek its publication. The autobiographical artistic freedom gives importance to the direct encounter between author and readers. Furthermore, the autobiographical artistic freedom assists in making free expression more available to social and cultural minorities, which are under-represented in the central media, thus enriching the variety of voices heard in public. We have just recently witnessed the empowering and catalyst effect of autobiographical expression of experiences online on social and political revolutions in the neighboring Arab countries. This right is reinforced in this era of internet, where electronic means and media such as "Twitter", "Facebook" and blogs implement this idea in practice. Many scholars noted the connection between a wide spectrum of opinions heard in public and the existence of a lively and healthy democracy. The rules of democratic decision-making are the body; the freedom of expression is their soul. A democracy without freedom of expression is like a body without a soul. The autobiographical artistic freedom not only enables each citizen to vote and be elected, but also to influence society's cultural fabric (for an extensive review of the basis of the right to autobiographical writing, see: West, p. 948-957). Hence, the autobiographical composition is closely connected to the abovementioned three rationales of freedom of expression.
66. Its importance notwithstanding, freedom of expression, including the autobiographical artistic freedom, is not an absolute right, and it is not immune to restriction. "The freedom of expression and the artistic freedom are not the only values to be considered. A democratic society is based on a variety of values and principles, of which freedom of expression and artistic freedom are just a part of. The implementation of these diverse values and principles naturally mandates the restriction of the protection extended to the freedom of expression and the artistic freedom, to the scope that is required to protect such values and principles. My freedom of movement stops where your nose begins; my freedom of expression does not justify slander or libel against another person; it does not justify disclosing top state secrets or disturbing the peace; freedom of expression is not the freedom to give false testimony in court" (re: Senesh, p. 830). With this warning in our saddlebag, we will now review the right that collides with the autobiographical artistic freedom in the Appeal at bar – the right to privacy. 

The Right to Privacy

67.The right to privacy is a constitutional right. Section 7 of Basic Law: Human Dignity and Liberty instructs that:

“(a) All persons have the right to privacy and to intimacy.

(b) There shall be no entry into the private premises of a person who has not consented thereto.

(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.

(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.”

The status of the right to privacy is also expressed in the case law of the Supreme Court as “one of the freedoms that shape the character of the regime in Israel as a democratic regime, and one of the supreme rights that establish the dignity and liberty to which a person is entitled as a person, as a value in itself” (Cr.A. 5026/97 Gilam v. The State of Israel (June 13, 1999) (hereinafter: “re. Gilam”); for further details, see HCJ 8070/98 The Association for Civil Rights in Israel v. The Ministry of the Interior, PDI 58(4) 842 (2004)).

68.The proper balance between the right to privacy and other rights was determined by the legislature in the Protection of Privacy Law. With respect to the interpretation of the act, case law has already been established whereby laws that were passed before the enactment of the basic laws will be interpreted in the spirit of the provisions of the basic law. “This law (Basic Law: Human Dignity and Liberty – N.S.) granted a super-statutory constitutional status to the right to privacy. This status should affect the interpretation of all of the laws, both those passed before the legislation of the basic law and those legislated thereafter. This constitutional status of the right to privacy should also affect the interpretation of the Protection of Privacy Law” (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, PDI 61(1) 581, 602 (2006) (hereinafter: “re. Jane Doe”); for further details see F.Cr.H 2316/95 Ganimat v. The State of Israel, PDI 49(4) 589 (1995)).

69.The law’s protection of the right to privacy is relatively new. It began approx. one hundred years ago.The starting point of the discussion regarding the right to privacy, its status and its justifications was expressed in an important article from the beginning of the last century, in which Justices Warren and Brandeis pointed to the existence of the right to privacy (Samuel Warren & Louis Brandeis, The Right to Privacy, 4 H. L. R. 193 (1890) (hereinafter: “The Right to Privacy”). The innovation of the authors was not reflected in the creation of a right “ex nihilo”, but rather in conceptualizing its various appearances in legislation. This approach does not recognize the benefit inherent in defining privacy as an independent right. Privacy is limited to how it was defined in legislation and in case law, which must be interpreted narrowly in order to prevent double protection in view of the basic assumption that the legislature does not waste ink. A similar approach was initially established in the case law of the Supreme Court: “The Protection of Privacy Law is intended to create and define new boundaries, and there was therefore, no need to redefine existing offences as prohibited acts… why would the legislature deem fit to once again prohibit in later legislation acts of violence that have already been determined as criminal offences in the existing penal law, only to include them in the definition of a new prohibited act, alongside which a maximum penalty is set, which does not exceed the penalty for any one of the existing violent offences. This is double legislation, which is entirely unnecessary” (see the opinion of Justice (former title) M. Shamgar FH 9/83 The Military Appeals Court v. Vaknin, PDI 42(3) 837, 853 (1988); for further details see L.Cr.A 9818/01 Biton v. Sultan, PDI 59(6) 554 (2005)). The concept that deems the right to privacy as a right limited solely to its appearances in legislation and to a narrow interpretation thereof, did not last forever. The right to privacy soon acquired a permanent status in the family of constitutional rights. Buds of this concept are found in the opinion of Justice (former title) A. Barak in HCJ 2481/93 Dayan v. Major General Wilk, Jerusalem District Commander, PDI 48(2) 456 (1994) (hereinafter: “re. Dayan”): “Every person in Israel is ‘entitled to privacy’ (Section 7(a) of Basic Law: Human Dignity and Liberty)… now that is has been afforded a statutory constitutional basis, it must be interpreted from a ‘broad perspective’ ‘and with the understanding that we are concerned with a provision that determines ways of life’… a constitutional provision must be interpreted ‘with a broad outlook, and not technically’… hence the approach – which is accepted in enlightened democratic countries – that constitutional provisions must be interpreted ‘generously’… with a substantive approach and not a ‘legalistic’ approach… with a pertinent approach and not a ‘technical’ or ‘pedantic’ approach… against the background of this approach it may be ruled that the constitutional right to privacy extends, inter alia – and without any attempt to delimit the right with all of its aspects – to a person’s right to conduct the way of life he wishes behind closed doors, without outside interference. A person’s home is his castle, and within its confines he is entitled to be left to his own devices, for development of the autonomy of his will” (ibid, on page 470).

70.Indeed, “The kids which you left have become goats with horns” (Bavli, Brachot 63 p. A), the buds sprouted, and received precise and clear expression in the opinion of Justice (former title) A. Barak in re. Jane Doe (above, on pages 595-597): “The right to privacy is one of the most important human rights in Israel… its roots are deeply embedded in our Jewish heritage… it is therefore called for by the values of Israel as both a Jewish and democratic state. It is recognized by Israeli common law as a human right… in 1981 the Protection of Privacy Law was enacted. Privacy was defined in the law (Section 2) in a manner which does not ‘cover’ all accepted forms of privacy. With respect to a violation of privacy over and above the definition in the law, Israeli common law continues to apply… in 1992, a material change occurred in the status of the right to privacy… Basic Law: Human Dignity and Liberty explicitly recognized a constitutional right to privacy… a constitutional right to privacy was thus recognized at a broader scope than the scope of privacy in the Protection of Privacy Law. Indeed, by virtue of the basic law, privacy became a super-statutory constitutional right… any and all government authorities – including any court and tribunal in the state – must honor it”.

71.The right to privacy is a constitutional right. It must be interpreted in a “generous and broad” manner, according to its justifications, in order to realize the purposes underlying it. However, the scope of the protection of privacy will not be determined broadly or narrowly but rather precisely. For the purpose of balancing between clashing rights, when the court is faced with a decision which calls for the drawing of the exact outlines of the rights, the court will employ strict interpretation, examining which of the rationales realized in the manifestations of the rights before it must be preferred (see: Aharon Barak, Interpretation in Law, Vol. 3: Constitutional Interpretation 83-84 (1993) (“Interpretation in Law (Constitutional Interpretation); and – Aharon Barak, Proportionality in Law 94-97 (2010)). The accepted opinion in our law is that the scope of the constitutional right should not be reduced in order to take into consideration the collective or the right of others. These will be taken into account at the following stages of the constitutional analysis (ibid). Israeli law therefore distinguishes between the application of the right and its protection. The mere application of the right does not necessarily guarantee a comprehensive protection of it. Application is one thing and protection another. Broad interpretation does not equal full protection.

The Right to Privacy – Scope

72.The ambiguity of the right to privacy is well-known (see for example: Re’em Segev “Privacy, its Significance and Importance” Privacy in an Era of Change 25, 26 (Tehilla Shwartz Altshuler editor, 2012) and the authorities therein) (hereinafter: Segev “Privacy, its Significance and Importance””). This ambiguity, which in the opinion of some of the scholars is derived from the social character of the right and from its technological context, makes it difficult to define the exact boundaries of privacy (see for example: Michael Birnhack “Control and Consent: The Theoretical Basis of the Right to Privacy” Mishpat Umimshal 11 9, 13-19 (2008) (hereinafter: “Control and Consent”)). “The right to privacy is a complex right, whose boundaries are not easily determined” (see HCJ 1435/03 Jane Doe v. The Haifa Civil Service Disciplinary Court, PDI 58(1) 529, 539 (2003)).

73.In this appeal, we are exempt from deciding the definition of the exact boundaries of the right to privacy. We are concerned – in the book at bar – with the core of the right to privacy. “With respect to situations of ‘classic privacy’, there appears to be broad consent. For example, we agree that it is appropriate to protect the acts of a person in his own home, the content of telephone conversations or of sealed envelopes, and certain types of information, such as our medical condition, our sex life, … when an outside agent intervenes without our permission in any of the above, we feel that our privacy has been violated” (see ‘Control and Consent’ above, on page 13).

The Justifications for the Right to Privacy

74.Many justifications have been given in literature and case law for the right to privacy. There are those that rest on a personal basis and those that are based on social values. These justifications can be split into two separate categories: the first, intrinsic-inherent justifications; the second, instrumental-purposeful justifications. The distinction between the types of justifications is clear: the intrinsic justification deems the right as a purpose in itself; the instrumental justification deems the right as a means of achieving a nobler purpose.

The Intrinsic Justification

75.The intrinsic justification for privacy asserts that a violation of privacy is equal to a violation of a person’s dignity, welfare and his ability of self-realization. This outlook is based on the moral theory of the philosopher Immanuel Kant. According to Kant, man exists as an end in himself. Use of man as an object for the purpose of achieving another purpose constitutes a violation of his dignity:

“Man, and in general every rational being, exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. He must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end… Persons are, therefore, not merely subjective ends, whose existence as an effect of our actions has a value for us; but such beings are objective ends, i.e., exist as ends in themselves.” (Immanuel Kant, Groundwork of the Metaphysic of Morals, 428 (H. J. Paton trans., 1964)).

76.A person is not an “object”; he should not be used as a means to achieve other purposes. A person has emotions, feelings and desires. Blatantly ignoring these and crudely trampling them is intolerable. The mere violation of a person’s privacy is the prohibited act. Intrusion into and exposure of the private space renders the person a means for fulfilling the purposes of the exposer and intruder. Privacy is the heart and core of human autonomy. This is the space in which everything dear to a person, his emotions, his inner desires, his innermost secrets, are found; all of these are part of the heart and core of the right to privacy. Violation of these is a grave violation of the person’s dignity. In the words of the scholar Bloustein:

“The injury is to our individuality, to our dignity as individuals, and the legal remedy represents a social vindication of the human spirit thus threatened rather than a recompense for the loss suffered.” (Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1003 (1964) (hereinafter: “Bloustein”).

And in the words of the scholar Benn:

“To conceive someone as a person is to see him as actually a chooser, as one attempting to steer his course through the world, adjusting his behavior, as his appreciation of the world changes, and correcting course as he perceives his errors. It is to understand that his life is for him a kind of enterprise, like one’s own… To respect someone as a person is to concede that one ought to take the account of the way in which his enterprise might be affected by one’s own decisions. By the principle of respect for persons, then, I mean the principle that every human being, insofar as he is qualified as a person, is entitled to this minimal degree of consideration” (Stanley I. Benn, Freedom, and Respect for Persons, in Privacy & Personality 1, 9 (J. Roland Pennock and John W. Chapman eds., 2009)).

77.Indeed, the right to privacy is derived from the right to dignity and is closely related to it. “The right to privacy therefore concerns the person’s personal interest in developing his autonomy, his peace of mind, his right to be with himself and his right to dignity and liberty” (see C.A. 8483/02 Aloniel Ltd. v. McDonald, PDI 58(4) 314, paragraph 33 of the judgment of Justice E. Rivlin (March 30, 2004)); for further details see re. Jane Doe above in paragraph 10 of the judgment of Chief Justice A. Barak; Ruth Gavison “The Right to Privacy and Dignity”, Human Rights in Israel – An Essay Collection in Memory of H. Shelah 61 (1988)).

Instrumental Justifications

78.Further justifications deem the right to privacy as a means to achieve substantive purposes. The right to privacy is perceived as the basis of the individual’s wellbeing; as vital to ensuring relationships of trust between people, and particularly intimate relationships; as a means of ensuring proper community life; as a basis for the existence of a democratic regime.

79.Several theories point to the fact that privacy is important for the purpose of improving people’s personal wellbeing, and for the possibility of maximum self-fulfillment. Private space gives a person the possibility to meditate and challenge the common world view of the society to which he belongs. Private space allows a person to design his private home as he wishes. This space sometimes expresses the innermost secrets that a person, for his own reasons, does not wish to publicly reveal. A person is entitled to the possibility of building his world as he wishes, which cannot be done when he is being watched from all around. The social view is sometimes paralyzing, preventing the individual from undertaking original and bold action. Private space is where the individual can break the fixed social boundaries. Violating the private space denies the individual the possibility of creating a unique and individual personal world. Unique literary expression of this concept is found in George Orwell’s book “1984”, which has become one of the world literature’s invaluable assets. See the opinion of Justice Brandeis:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.” (Olmstead v. United States, 277 U.S. 438, 479 (1928).

And in the words of the scholar Bloustein:

“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality… Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” (Bloustein, 1003).

For further details on the issue of personal wellbeing, see: R. v. Dyment, [1988] 2 S.C.R. 417. For further authorities, see: Michael Birnhack, Private Space: Privacy, Law & Technology 117-120 (5771) (hereinafter: “Birnhack, Private Space”).

80.A violation of privacy is a violation of personal autonomy. Tearing down the screen separating the private and the public realms violates a person’s right to conduct his life as he wishes. Some wish to conduct their liveson the radio waves, in the ‘big brother house’, or on the pages of the newspaper; others wish to live their lives peacefully and modestly, far from the spotlight, from the public eye, and from the lens of the camera. Exposure of privacy by another violates a person’s right to conduct his life as he wishes. “…The right to privacy draws the line between the individual and the public, between ‘me’ and society. It delineates a defined area in which the individual is left alone, to develop his ‘self’, without the intervention of others…” (re. Dayan above, on page 471).

“Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters, and of publicity as to others. One may wish to live a life of toil, where his work is of a nature that keeps him constantly before the public gaze, while another may wish to live a life of research and contemplation, only moving before the public at such times and under such circumstances as may be necessary to his actual existence. Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from this liberty” (Pavesich v. New England Life Insurance Co., 50 S.E. 68, 71 (Ga 1905)).

81.Note, the freedom of expression and the right to privacy do not merely clash; they also complement one another. A violation of privacy is sometimes also equal to a violation of the freedom of expression. The existence of a protected private space, to which the individual may withdraw, be alone, is sometimes a condition to the existence of creative activity. Creativity, which deviates from the existing social order, struggles to emerge under the penetrating gaze of the community. The screen of privacy protects the existence of the internal world. This world will be exposed to the audience when the screen goes up. Premature exposure and without consent of the unfinished product, will lead to failure; or as in the theatre world, will lead to harsh reviews which might leave the creative work in its unripe stage, and prevent its coming to fruition. Personal space is vital for the development and emergence of different ideas in the public realm. Individuals with free opinions are an essential ingredient for the existence of democracy. Without freedom of thought, made possible where there is a personal space, a healthy society cannot be developed. Indeed, the right to privacy is not necessarily contrary to the freedom of expression and creation, it also serves them.

82.The Torah describes the public setting in which the first Tablets of Stone [Luchot HaBrit] were given, and the breakage; and the second tablets that were given to Moshe Rabbeinu (Moses) alone, and were a masterpiece. The first tablets were given “amid great pomp and circumstance” (Rashi, Shemot 34, C) on Mount Sinai in front of the entire Jewish nation. The second tablets were given to Moshe Rabbeinu in silence: “No man may ascend with you nor may anyone be seen on the entire mountain. Even the flock and the cattle may not graze facing that mountain” (Shemot 34, C). It was stated thereon in Midrash Tanchuma ((Warsaw) Ki Tisa, 31): “The first tablets were given in public, and therefore the evil eye had control over them and they were broken, and here G-d told him there is nothing better than modesty”. We can see that modesty and personal space may produce great creation. The creation is not necessarily the result of the freedom of expression. It is actually the scaling down, the privacy, the modesty, that may be fertile ground for growth and renewal. The secret of the dialogue and actions taken between is the proof. Needless to say, humans, the crown of creation, are the result of the most intimate relationships. This teaches us that infinite exposure is not always a guarantee for creation; on the contrary, there are concealed areas that we must strictly preserve as such, not only as protection against harm, but in order to ensure productivity, creation and fulfillment. “And it is written ‘with the modest is wisdom’ (Mishlei 11, B), since wisdom connects two things, and it is the primordial power, as is known, and through this things change from one state to another, and this is the meaning of the verse ‘with the modest is wisdom’. Therefore, when you want to plant a seed and want it to change its form, you conceal it and insert it into the ground, so that it may arrive at its primordial state, which is wisdom, as is recalled” (Torat Hamaggid, Torah, Parashat Balak).

83.Harav Kook (Orot Hakodesh C, Part Two, Vol. Three, Title E) addresses the required balance between a person’s need to be alone and his need for company: “Out of these two opposing judgments, the noble person must stand in the midst of two tendencies: to separate himself and to draw close. With this, he attains conceptual purity, on the one hand, and the natural strength that exists in simplicity and natural freshness, on the other”. Harav Kook further eloquently writes in his essay “A time to be silent and a time to speak” (Orot Hakodesh, Part Two, Vol.  Three, Title H): “The structures of a person’s spirit suffer great destruction when the inner light of “a time to be silent” appears, when the holy and supernal muteness in the splendor of its glory and the gravity of its burden fills his entire soul. If he rebels against it and breaches it, this rebellion against the sovereignty of silence destroys all of its structures, all of the treasury of innocence and uprightness, of profundity and supernal connection, these are all shattered. And he will later need, if he wishes to build his ruins, to reestablish everything anew, and the wise person will be silent at that time. However, if a person gives silence its due when it first appears, it will perform its duty, establish its muteness, penetrate in its profundity and reach the perplexities of its depths, from which it will bring forth mighty foliage and branches with the power of great and fresh blossoming. The leaves will be filled with power and the expression of his lips will emerge. Then the “time to speak” will begin in its glorious majesty and the spirit of silence will be the angel that acts upon the outpouring of speech, which will flow like streams, with great abundance and all beauty. ‘[I] create the speech of the lips. Peace, peace, to the distant and to the near,’ says Hashem, ‘and I will heal him’.  Its fruit will be for food and its leaf for healing, freeing the mouth of the mute”.

84.The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the beady eye of the state is vital to the existence of a pluralistic society which gives a stage to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression. This position was recognized in the past by this court, which held that the right to privacy is “one of the freedoms that shape the character of the regime in Israel as a democratic regime” (see Paragraph 9 of the judgment of Justice H. Ariel in re. Gilam; see also: Campbell v MGN Ltd. [2004] UKHL 22 (hereinafter: “re. Campbell”). For an extensive review see: Annabelle Lever, Privacy Rights and Democracy: A Contradiction in Terms? 5 Contemporary Political Theory142 (2006)). And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

The Right to Privacy and Intimate Relationships

85.Further justification for the right to privacy is found on another level of the human existence – interpersonal relationships. “It is not good that man be alone” (Bereishit B, 18); “human beings are by nature political animals” (Aristotle, Politics, Book A, 27-28 (Rachel Zelnick-Abramovitz Editor, Nurit Karshon translator, 2009)); “either companionship or death” (Bavli, Taanit 23, p.1). These are a few of the texts written throughout the generations to describe the importance of relationships in the lives of humans. Each one of us is involved in many relationships: family; work; friends; acquaintances; neighbors; service providers. All of the above and many others encircle and surround our daily routine. Just as their facial features differ, their relationships differ. And in the case at bar: a father-son relationship does not resemble a relationship between husband and wife; between friends, between distant and close acquaintances; etc.

86.There are “certain relationships that require background conditions of privacy to enable their optimal existence” (Birnhack, Private Space above, on page 120). Deep friendships and connections between couples are built and based on keeping the most intimate of secrets. A world in which privacy is trampled and secrets become common is a world in which people will refuse to bare their soul to their friends for fear of it being exposed to the entire world. The same is true to professional relationships and friendships, a fortiori with respect to romantic relationships. In such relationships, couples mutually reveal to one another their most secret desires, wishes and aspirations. A partner also reveals to his partner his positions and opinions regarding work colleagues, family members, friends and previous partners. This sensitive information is given to the other partner on a silver platter, under the assumption that he will act as a loyal ally and confidant. This is the “unwritten” contract between partners in a long-term romantic relationship. These are the “terms of employment”. Any sensible person knows this. “The growth of a couple’s relationship… needs, inter alia, the couple’s privacy from the outside world. The privacy enables intimacy, which is a necessary condition for a couple’s relationship… the privacy allows trust between the couple and creates the space… where they can be authentic and gain each other’s support” (Birnhack, Private Space above, on page 121; for further references, see: Segev, Privacy, its Significance and Importance above, on pages 83-86).

87.A special place is kept for intimate long-term relationships between couples, and particularly for married life. The commitment created between two spouses is not limited to economic arrangements. These constitute the body of the marriage, while the trust and love create its soul. Marriage is based on “love, friendship, peace and companionship”. One acts as the other’s “confidant”. The self-sacrifice, the strong friendship, the endless empathy, these are the essence of married life. “Therefore a man shall leave his father and his mother and cling to his wife and they shall become one flesh” (Bereishit B, 24). The separateness becomes oneness. The day-to-day challenges that couples face, maintaining the relationship, household, professional career and childrearing, all constitute a quasi- “melting pot” for this personality merger. Many studies have indicated that the mental identity of spouses changes with time. The partners go from separate beings to a single family unit (see, for example: Milton C. Regan, Family Law and the Pursuit of Intimacy 147 (1993)). Spouses are exposed to one another, in happiness and in sadness, in times of hardship and crisis, as well as in times of success and comfort. They share with one another their thoughts and feelings about what goes on around them. In many relationships, spouses read one another, like an open book - “no secrets escape them”. True in this regard are the words appearing in the traditional deed of conditions: “and from this point forth, the said couple will act jointly with love and affection, and will not conceal or hide or lock away from one another…” (Q&A Nachlat Shiva, Shtarot, Part I). It would not be superfluous to note in this context the degree of closeness between a husband and wife, inter alia, in relation to the laws of testimony (disqualification of a husband’s testimony also disqualifies the wife’s testimony) and the laws of agency (a husband is appointed as an agent for his wife for things that others cannot do as her agent). I will also mention the provisions of Section 3 of the Evidence Ordinance [New Version], 5731-1971 that “In a criminal trial, one spouse is not competent to testify against the other”.

88.The right to privacy in its romantic form is in fact the right of the spouse not to be exploited by his spouse. A situation in which one spouse reveals to the other spouse everything that is on his mind, and the other spouse uses the information for his own purposes – is intolerable. A legal regime that does not prevent this does not protect the unwritten contract of marriage. The privileges between various individuals in society are regulated in legislation. Is it conceivable that the law, which regulates attorney-client relations; doctor-patient relations; psychologist-patient relations; bank-customer relations; will not extend its protection and defend the most sensitive relationship in a person’s life – between man and wife, between spouses?! (For further details, see: Hanoch Dagan & Carolyn J. Frantz, Properties of Marriage 104 Colum. L. Rev. 75, 82-83 (2004) and the authorities appearing therein). It is for good reason that the “public hearing” principle which was set forth in Section 68(a) of the Courts Law [Consolidated Version], 5744-1984, whereby “court hearings will be open to the public”, retreats in “family matters, within the meaning thereof in the Family Court Law, 5755-1995”, pursuant to the provisions therein in Section 68(e)(1).

89.The culmination of the joint spousal relationship is embodied in long-term relationships, with a joint economic regime, regardless of whether we are concerned with the institution of marriage or with common-law partners. These relationships include an increased duty of care vis-à-vis the joint intimate space of the couple. Even romantic relationships that are not characterized by a full economic partnership establish an individual ‘fiduciary duty’ to protect the spouse’s intimate space. The opening of the intimate space to the other partner occurs in the early stages of the relationship. The protection of this space will emerge at the initial stages of the intimate relationship.

90.These are the main justifications for the right to privacy. However, before we begin discussing the proper balance, we will take a look at comparative law for support in deciding the legal issue that was placed at the center of the appeal at bar.

English Law

91.In the past decade, the right to privacy has acquired a place of honor in English case law. In the past, the only grounds for a suit for a violation of the right to privacy was a breach of confidence, which requires three separate elements to be proven: (1) the nature of the information that was revealed mandates protection of its confidentiality; (2) the information was transferred under circumstances which establish a duty of confidence; (3) misuse or unauthorized use of the information (for further details, see: The Law of Privacy and the Media 163-222 (Mark Warby, Nicole Morehman and Iain Christie eds., 2011 (hereinafter: “The Law of Privacy and the Media”)). However, in 2008, the House of Lords adopted, in re. Douglas v. Hello! Ltd. [2008] 1 A.C. 1 (H.L. 2007) (appeal taken from Eng.), an additional independent cause of: ‘misuse of private information’. While the cause of breach of confidence emphasizes the breach of the confidential relationship between the parties, the cause of misuse of private information “highlights” the violation of privacy even without the existence of a confidential relationship. See Paragraph 51 of the opinion of Lord Hoffmann in re. Campbell (above):

“The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity - the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.”

92.The said legal development expresses the rise of the importance of the right to privacy in English law. This right, which was defined, in practice, as a right pertaining to an ‘in personam’ relationship became an ‘in rem’ right. The cause of ‘misuse of private information’ requires the following two conditions to be proven: (1) the information that was misused is indeed information that is protected by the right to privacy, as it appears in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the “European Convention for Human Rights”); (2) examination of the balance between the freedom of expression and the right to privacy, as they appear in the European Convention for Human Rights, tips the scale in the direction of the right to privacy (see, for example: re. Campbell above and: The Law of Privacy and the Media above, 226).

93.In the said re. Campbell, the House of Lords required The Mirror magazine to pay model Naomi Campbell damages following publications regarding drug rehabilitation treatments which she underwent – a publication that amounts to a violation of her privacy. The judgment discusses at length the nature of the cause of ‘misuse of private information’. With regards to the first condition, which concerns the definition of the information that is protected by the right to privacy, the House of Lords referred to the “reasonable person” test, which was determined around a decade prior thereto in re. ABC, in which the motion of a plant owner to identify the methods of killing opossums at his plant as information protected by the right to privacy was denied:

“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behavior, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63).

[Emphasis added – N.S.].

94.On a side note, we will mention that the same test was adopted in the case law in New Zealand (see, for example: P v D [2000] 2 NZLR 591) and it is also supported in academic literature (see, for example: William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 396-397 (1960)). Moreover, see Paragraphs 20-21 of the opinion of Lord Nicholls of Birkenhead in re. Campbell, in which it was held that in terms of the question of whether the information is protected under the right to privacy, the rights of others or other interests that may be harmed due to prevention of the publication should not be taken into account. These will be considered at the stage of the balancing of the rights. The guiding question at the initial stage is whether the injured party had a “reasonable expectation of privacy” with respect to the facts that were exposed:

“20. … article 10(2), like article 8(2) [of the European Convention for Human Rights – N.S.] recognizes there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life.

21. Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.

[Emphasis added – N.S.]

95.It was further held in re. Campbell that the manner in which the clashing rights will be balanced will be decided in each case on its merits. Freedom of expression does not prevail in principle over the right to privacy. It is necessary to meticulously examine the clashing rights in each and every case, and to refrain from determining a generic hierarchy between the two rights (see, for example: In re S [2004] Fam 43 (C.A. 2003)). In balancing between the two rights, i.e. the protection of privacy on the one hand, and the freedom of expression on the other, it is necessary to examine whether the infringement of privacy is supported by the existence of a ‘sufficient public interest’. Against the background of the aforesaid, it appears that reporting on a private person who is undergoing rehabilitation treatments, although they are a public figure, does not fulfill the said condition:

“I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilized values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favor of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicized in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognized and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatsoever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information”.

(Re. Campbell above, in Paragraphs 55-56 of Lord Hoffmann’s judgment).

[Emphasis added – N.S.].

In other words:

“The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press’s freedom to report it.”

(Ibid, in Paragraph 157 of the judgment of the Baroness Hale of Richmond).

96.Re. McKennitt, the circumstances of which are relevant to the appeal at bar, discussed the suit of Ms. McKennitt, a Canadian folk singer, whose main claims were based on an infringement of her privacy (see Mckennitt v. Ash [2008] QB 73 (C.A. 2006) (hereinafter: “re. Mckennitt”)). In 2005 (before the House of Lords adopted, as stated in Paragraph 91 above, an additional independent cause of ‘misuse of private information’), the singer’s friend published a book which exposed extensive parts of her private life, including: details regarding her relations with her late fiancé, her health, and details about her sex life. It was ruled that because of the trust relationship that prevailed between the singer and her friend, the publication of the book fell under the duty of confidence (the ‘breach of confidence’), and that it fulfilled the following three elements: (1) a friendship trust relationship existed between the parties; (2) the nature of the information that was published mandates maintaining its confidentiality; (3) misuse and unauthorized use was made of the information.

97.However, in another case, English case law recognized ‘the right to tell one’s own story’ where the information is “joint” and was acquired in an experience common to the two partners. A v B [2003] Q.B. 195 (C.A. 2002) (hereinafter: re. A v B). At the center of the case was a famous soccer player who had casual extramarital sexual relations with two women, and petitioned against a newspaper article based on their testimonies. It was ruled that the women have the right to publish their story, and it prevails over the soccer player’s right to prevent the publication. The freedom of expression was preferred over the right to privacy. The main grounds for dismissing the soccer player’s petition were based on the short acquaintanceship between the couple, which did not establish for any one of the parties an expectation of a ‘fiduciary duty’ (ibid, in Paragraph xi):

“The fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right. While recognizing the special status of a lawful marriage under our law, the courts, for present purposes, have to recognize and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it”.

[Emphasis added – N.S.].

98.Thus, in re. McKennitt above, the court distinguished the case before it from the A v B case, ruling that the latter concerned a casual sexual relationship, and as such does not prevent either one of the partners from describing his story at the expense of the other party. However, it was clarified that in a stable and lasting relationship, by virtue of which a ‘duty of confidence’ arises, the right to privacy will prevail over the freedom of expression:

“…the relationship between Ms. Mckennitt and Ms. Ash…was miles away from the relationship between A and C and D. In the preceding paragraph I deliberately and not merely conventionally described the latter as a relationship of casual sex. A could not have thought, and did not say, that when he picked the woman up they realized that they were entering into a relationship of confidence with him …” (Paragraph 30).

99.On a side note we will point out that the fundamental position of the English legal system with respect to the status and scope of the right to privacy was adopted, with minor changes, by other common law courts (see, for example: Canada – Aubry v Les Éditions Vice Versa Inc [1998] 1 SCR 591; New Zealand – Hosking v Runting [2005] 1 NZLR 1).

The European Court of Human Rights 

100.‘Privacy’ law developed in English law under the patronage of the European Convention for Human Rights and its interpretation by the European Court of Human Rights. It is only natural that we examine the position of the ‘bride’ in the issue laid before us.

101.Re. Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 ECHR 2012 (hereinafter: “re. Von Hannover”) concerned the claim of several members of the Monaco royal family against a German newspaper which published their pictures while they were on a private vacation. It was ruled that in the clash between the freedom of expression and the right to privacy, it is necessary to consider the following criteria: (1) the extent of the contribution to public debate; (2) whether the person is a public or private figure; (3) the conduct of the person with respect to violation of his privacy prior to the publication; (4) the content, form and consequences of the publication; (5) the circumstances in which the information was obtained.

102.We will now explore the nature of these criteria: (1) it was ruled that the contribution to public debate is not limited to political matters or to matters pertaining to crime and corruption. Information that is relevant to the field of entertainment and sport also contributes to public debate. However, rumors regarding marital difficulties of a public figure or financial difficulties of a person from the field of entertainment are not protected by this defense; (2) it was ruled that reporting on a person holding a public position is not similar to reporting on a private person. While reporting on a public figure is indeed essential to the existence of a democratic society, reporting on a private person is not required to such an extent; (3) it was ruled that past cooperation of the subject of the publication with the media will work against him. However, not all cooperation with the media can serve as an argument that legitimizes the publication; (4) and (5) it was ruled that the other elements serve as indicators that attest to the extent of the violation. Thus, for example, a publication in a national newspaper is in no way similar to a publication in a journal intended only for workers of a certain sector. 

103.In re. Axel Springer AG v. Germany [GC], no. 39954/08 ECHR 2012, a similar suit was heard regarding the publication of a report on the arrest of a German celebrity. The European court reiterated the tests determined in re. Von Hannover above, stating (in Paragraph 93) that in balancing between the rights, both the manner in which the information reached the publishing party and the extent of its credibility must be addressed.

Continental Law

104.The German legal system developed a three-stage test in order to handle situations in which it is alleged that the right of a person to privacy has been violated. First, the extent of the violation of privacy is examined; second, the justifications for the violation are examined, for example: public interest and the consent of the subject of the publication; third, an examination is carried out of the proper balance between the violation of privacy and the right exercised, while addressing the manner and scope of the publication and subjective matters (such as: intention to harm). However, insofar as the violation of privacy touches on the “core of human life”, the said balancing will not be conducted at all, and the publication will be prohibited (for an extensive description regarding the development of the German law and further authorities, see: Paul M. Schwartz & Karl-Nikolaus Peifer, Prosser's Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept?, 98 Cal. L. Rev. 1925 (2010) (hereinafter: “Prosser’s Privacy”). Translations of the judgments are taken from this article). As a consequence, a violation of the core of the right to privacy will not be allowed, even where it is balanced against a broad public interest:

“Even serious public interests cannot justify encroachments of this area; an evaluation according to the principle of proportionality does not take place” (BVerfGE 80, 367 (1998) NJW 1990 563)”.

105.In 2008, the German Federal Constitutional Court issued a judgment in a similar case to the case at bar: (BVerfGE 119, 1 (Ger.) 61 NJW 39 (2008) (Ger.)) (a detailed description of the judgment appears in Prosser’s Privacy above on pages 1932-1937). According to the facts of the judgment, Maxim Biller (hereinafter: “Biller”) published, in 2003, a novel revolving around a romance between an author by the name of ‘Adam’ and an actress by the name of ‘Esra’. The novel describes the gamut of difficulties faced by the couple, and references, inter alia, the character of ‘Esra’s’ family and her fatalistic personality, including: her mother’s arrogant character; details regarding her daughter who was born from her first marriage, and a description of the sexual relationship between them. According to Biller’s former partner, there is a considerable similarity between her character in real life and the character of the protagonist as described in the story’s plot (‘Esra’). According to her, the novel contains many intimate details in connection with the relationship she had in the past with the author of the work – Biller, without obtaining appropriate consent. Her mother further stated that the novel contains intimate details that publicly expose her personality which is presented in the novel in a negative light.

106.At the initial stage, the court dealt with the examination of the artistic medium through which the violation of privacy was committed. Ostensibly, the book written by Biller is a fictional novel, any connection between which and reality is completely coincidental. However, according to his former partner, the novel contains precise details and in fact constitutes a ‘memoir’ (i.e. an autobiography) in the guise of a novel. At the second stage, the court examined whether readers belonging to the broad social circle of the average person (such as: the injured party), as distinguished from the circle of celebrities and public figures, could indeed identify her by reading the novel. Examining the extent of the novel’s classification as fiction or biographical will be examined in view of the social circle, i.e. – identification of the character described in the novel by the social circle, is nothing but a presumption that the novel is based on real life – ‘roman à clef’. Case law has developed a dual test intended to help identify the character described in the novel: One, the degree of similarity between the literary character and the real character; two, the degree of the violation of privacy. An intermediate violation of privacy may be remedied by a weak likeness between the literary character and the real character; and vice versa, a weak violation of privacy may be remedied by a stronger similarity between the real character and the literary character. Consequently, German case law developed a two-stage test: (a) is the literary character indeed identified by the close social circle; (b) is the degree of the violation of privacy neutralized through the ‘fictionalization’ of the character described in the plot. We therefore have a quasi- ‘parallelogram of force’ between the extent of the identification and the severity of the violation.

107.After examining the evidentiary matrix, the claim of Biller’s partner that she may be identified by reading the novel, was accepted. Conversely, her mother’s claim was rejected. Once it was ruled that it was indeed possible to identify Biller’s partner, the court examined the violation of the right itself. Due to the fact that the violation is at the core of the right to privacy, and as such cannot be remedied, the publication of the novel was prohibited.

108.From inspection of French case law, a similar approach can be identified (for a specification, see: The Law of Privacy and the Media above, on pages 155-159 and the authorities cited therein) (the article below: Privacy in Europe and the Common Law). The source of the protection of the right to privacy is embedded in Section 9 of the Code Civil [C. CIV.] (in its translation into English):

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.”

109.Throughout the years, the French courts have developed two main principles when dealing with a violation of privacy: (a) there is no hierarchy among the competing rights; each competing right has the same normative status; (b) all measures taken in the course of the balancing must be proportional.

110.Against the background of the said principles, it was held that freedom of expression will prevail where there is a public interest with respect to a certain event (‘fait d'actualité’) or when there is a significant contribution to public debate. Examination of the existence of the public interest in the framework of French law is similar to examination of the public interest in the case law of the European Court of Human Rights, as specified above. The right to privacy will prevail over freedom of expression only where the violation is in the ‘intimate dimension of private life’ (for further details and references, see: Helen Trouille, Private Life and Public Image: Privacy Legislation in France, 49 (1) I& C. L. Q. 199 (2000), and: Privacy in Europe and the Common Law above, on pages 155-159).

U.S. Law

111.Freedom of expression is established in the First Amendment to the Constitution, an amendment which has received immortal status in U.S. case law, to the point that it is hard to overstate its importance (see, for example, U.S. law on prior restraint: Near v. Minnesota, 283 U.S. 697 (1931)). In contrast, the right to privacy is not established in the Constitution. Indeed, since the above key article of Justices Warren and Brandeis (The Right to Privacy above) the status of the right to privacy has changed. However, it still remains constitutionally inferior to the freedom of expression.

112.U.S. law recognizes four tort causes of action for a violation of privacy (see Restatement (Second) of Torts, § 652 (1977)). From the causes of action, the one relevant to the case at bar is: ‘public disclosure of private facts’. The cause of action is defined thus (ibid, 652D):

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public”.

In order for a cause of action by virtue of ‘public disclosure of private facts’ to rise, the plaintiff is required to prove that: (1) the publication concerns matters pertaining to his private life; (2) the information that was published is highly offensive to a reasonable person; (3) the information that was published is not of legitimate public concern.

113.U.S. case law has focused on the definition of legitimate public concern. Its existence is dependent on proving a logical nexus between the private information that was exposed and the existence of a legitimate public concern (see, for example: Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980)) (hereinafter: “re. Seabury”). This causal link was generously and broadly interpreted in case law (ibid).

114.In a series of judgments concerning the publication of autobiographical works, it was explicitly held that the existence of a ‘legitimate public concern’ prevails over a person’s right to privacy. Thus, for example, in the said re. Seabury, a suit was heard in connection with the exposure of information relating to the conduct of the plaintiff’s marital and domestic life. In the book, which was published by her former husband’s brother and focused on the relationship between the two brothers, details were included pertaining to her marital life. She, on her part, petitioned the court to prevent the publication and distribution of the book. However, her suit was dismissed with prejudice in view of the existence of a ‘logical nexus’ which falls under the constitutional protection:

“A review of the record in this action clearly shows the requisite logical nexus. An account of the author's close association with his older brother certainly is appropriate in the autobiography. Likewise, accounts of his brother’s marriage as they impacted on the author have the requisite logical nexus to fall within the ambit of constitutional protection” (ibid, on page 397).

[The emphases have been added – N.S.].

115.In 2004, another lawsuit was heard concerning a violation of privacy, following the publication of an autobiographical work (Bonome v. Kaysen, 17 Mass. L. Rep. 695 (Mass. Super. Ct. 2004)). ‘Kaysen’, a well-known author, wrote a book entitled ‘The Camera My Mother Gave Me’, which describes her coping with severe pain in her genitals. The book documents the impact of her said medical condition on the intimate relations with her partner, ‘Bonome’. ‘Bonome’ is presented in the book in a negative light, and it is suggested that he attempted at one point to rape Kaysen, after she refused to have sexual relations with him. ‘Bonome’s’ claim against the publication and distribution of the book was dismissed with prejudice because there was a ‘legitimate public interest’ in the publication of ‘Kaysen’s’ autobiographical book. The courtaddressed the difficulty inherent in an autobiographical story containing the experiences of two separate partners. Although the autobiographical story of one is a violation of the other’s privacy, recognition of ‘Kaysen’s’ right to expose the private information establishes the logical nexus required between the information exposed and the public interest, in order to justify the publication thereof.

“As noted above, there is an additional interest in this case: Kaysen’s right to disclose her own intimate affairs. In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story – which inextricably involves Bonome in an intimate way. In this regard, several courts have held that where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern. Id.; Anonsen, 857 S.W.2d at 705-06; Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Where one’s own personal story involves issues of legitimate public concern, it is often difficult, if not impossible, to separate one’s intimate and personal experiences from the people with whom those experiences are shared. Thus, it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident”.

Interim Summary – Foreign Law

116.The case law in England, Germany, France and of the European Court of Human Rights leans towards granting extensive protection to the right to privacy versus the freedom of expression. Conversely, the U.S. system has adhered to granting a weak status to the right to privacy.

We will now examine our “homegrown” law on the issue of the relationship between the right to privacy and the freedom of expression.

The Normative Balance between the Rights

117.The right to privacy is a relative right. Freedom of expression is also not an absolute right. As such, it is necessary to balance them, one against the other, and against parallel rights and other interests. In the appeal at bar, we are witnessing a “frontal clash” between the right to privacy and the freedom of expression. What is the law when two constitutional rights clash with one another? The freedom of expression and the right to privacy are rights that are shaped as principles, and hence the clash between them is not an abstract clash, without any foundation in legislation. On the contrary, the parties’ claims are based on and supported by the legislation itself. Section 2 of the Protection of Privacy Law prescribes that the “publication of a matter pertaining to the private life of a person, including his sexual history, or his health, or what he does in private” is included in this violation. The law does not deem this determination to be an absolute matter, and instructs in Section 18(3) of the Protection of Privacy Law that the violation is permitted if there is a “public interest therein that justifies it under the circumstances, and provided that if the violation was by way of publication – the publication was not false”. We therefore have before us a question regarding the interpretation of the provision of the said Section 18(3). This balance is, naturally, an interpretational-constitutional balance. “It takes into consideration the in-principle importance of each one of the rights and its weight at the point-of-decision. It reflects the balance conducted within the bounds of proportionality in its narrow sense in the limitation clause” (see Barak, Proportionality in Law above, on pages 124-125).

Proportionality in the Narrow Sense – a Balance of Profit and Loss

118.The test of proportionality in the narrow sense examines the existence of “a proper correlation between the benefit that the policy produces and the damage that it causes” (see HCJ 3648/97 Stamka v. The Minister of the Interior PDI 53(2) 728, 782 (1999)). “It is necessary to examine whether a proper ratio exists between the public benefit derived from the act of legislation whose legality is considered and the damage to the constitutional right caused by such act of legislation” (see HCJ 2605/05 College of Law & Business v. The Minister of Finance, Paragraph 50 of the judgment of Chief Justice D. Beinisch (November 19, 2009)).

119.At the center of the proportionality test – in its narrow sense – is the following question: does the weight of the benefit derived from the realization of one right exceed the weight of the damage that will be caused to the other constitutional right. This weight is neither measurable nor quantifiable, but rather metaphorical weight derived, inter alia, “from political and economic ideologies, from the unique history of each and every country, from the structure of the political and governmental system” (see Proportionality in Law above, on page 431) from the specific legal tradition and various social values.

120.We are not concerned with comparing the weight of the two constitutional rights themselves, i.e. the weight of the right to privacy on the one hand and the weight of the freedom of expression on the other. The question put to our decision is different and limited in scope: is the weight of the marginal benefit derived as a result of realization of one right greater than the marginal damage that will be caused to the other right. As stated at this court in another case: “The question is whether the blanket prohibition is proportionate (in the narrow sense)? Is the correlation between the benefit derived from achieving the proper purpose of the law (to reduce as much as possible the risk from the foreign spouses in Israel) and the damage to the human rights caused by it (a violation of the human dignity of the Israeli spouse) a proportionate one? The criterion we must adopt is a value one. We must balance between conflicting values and interests, against a background of the values of the Israeli legal system. We should note that the question before us is not the security of Israeli residents or protecting the dignity of the Israeli spouses. The question is not life or quality of life. The question before us is much more limited. It is this: is the additional security obtained by the policy change from the most stringent individual check of the foreign spouse that is possible under the law to a blanket prohibition of the spouse’s entry into Israel proportionate to the additional violation of the human dignity of the Israeli spouses caused as a result of this policy change? (HCJ 7052/03 Adalah The Legal Center for Arab Minority Rights in Israel v. The Minister of the Interior, PDI 61(2) 202, Paragraph 91 of the judgment of Chief Justice A. Barak (2006)).

121.The question at the center of the appeal at bar is not which is preferable, freedom of expression or the right to privacy; but whether the weight of the benefit that will grow from the prevention of publication of the book at bar – which violates the right to privacy – is greater than the weight of the damage that will be caused to the freedom of expression as a result of the prevention.

122.In determining the weight of the rights placed on the scales, three criteria must be addressed: the importance of the right; the probability of the violation or realization of the right; the magnitude of the violation or the realization. With respect to the importance of the right, it has already been ruled that despite the identical constitutional status of the members of the family of rights, the social objectives established and protected by such rights are not identical. “Not all constitutional rights are equal in importance, and consequently nor is their specific weight. The importance of a constitutional right and the importance of preventing its violation are determined according to the basic perceptions of society. They are impacted by the cultural history and the character of each and every society” (see Barak Proportionality in Law above, on page 443). There is another distinction between the core of the right and its margins. Protection of the core of the right is not the same as protection of its margins. Relevant in this regard is the opinion of Justice (former title) A. Barak in HCJ 5016/96 Horev v. The Minister of Transportation, PDI 51(4) 1, 49 (1997): “Within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered to political expression is superior to that allotted commercial expression. In the context of a certain aspect of a right (such as political speech), a violation at the core of the right is not the same as a violation in its margins”.

123.The “geographic location” of the specific case is determined in view of examination of the rationales underlying the manifestation of the right with which we are concerned. “Although all expressions are included in our system in the one ‘category’ of freedom of expression, not all types of expressions enjoy equal protection. The basic criterion for determining the extent of the protection for a certain expression is the social importance of the expression, and particularly its importance in realizing the objectives underlying the freedom of expression” (F.Cr.H 7383/08 Ungerfeld v. The State of Israel, Paragraph 28 of the judgment of Justice (former title) E. Rivlin (July 11, 2011); for example: protection of the freedom of commercial expression is not the same as protection of the freedom of artistic expression; their importance is different (the above re. Kidum; see and compare: HCJ 5432/03 Shin - The Israeli Movement for Equal Representation of Women v. The Council for Cable TV and Satellite Broadcasting, PDI 58(3) 65, 82 (2004); HCJ 4644/00 Jafora-Tabori Ltd. v. The Second Authority for Television & Radio, PDI 54(4) 178, 182 (2000)). Similarly, the protection of freedom of expression in relations between individuals is not the same as protection of freedom of expression in relations between an individual and the government: “The scope of the individual’s right to freedom of expression against the state is more extensive than the individual’s right to freedom of expression against another individual” (Barak Human Dignity, above on page 723).

124.Note, it is necessary to be careful of being ‘swept away’ in the ideological level. The value must not serve as a veil against an interest. Sometimes, the ideological robe, the shell, the external covering, is void of any moral content and is actually an interest-oriented (financial, personal or other) dispute. In situations such as these, there is nothing in the manifestation of the right with which we are concerned other than what it comprises. In this case, values which do not underlie the limited manifestation should not be read into it in an artificial and forced manner. These are the situations in which the right of one individual to personal wellbeing clashes with the right of another individual to personal wellbeing. In such a case, we should not wear ideological dress nor be blinded by an ideological argument. The value is, as a matter of fact, an interest, and the Talmudic question then arises “why do you think your blood is redder than anyone else’s” (Bavli, Pesachim 25, B). In these situations, there is no need to examine the “clash of civilizations” between the basic rights. The specific issue of division of the “personal wellbeing” between the litigants may be decided without requiring the in-principle decision.

125.The probability of the violation in the realization of the right, and the magnitude of the injury, also affects the relative weight of the rights on the constitutional scales. A highly probable violation is not the same as an improbable violation; the violation of a single right is not the same as a violation of many rights; a severe injury is not the same as a minor injury; the violation of a right in relations between individuals is not the same as a violation of a right in relations between an individual and the government.

Freedom of Speech and the Right to Privacy
 

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126. In the proper balance between the right to privacy and freedom of speech, it is first necessary to examine the degree of compatibility of the right at hand with the rationales it is based upon. Accordingly, first to be examined is the extent of the expression's contribution to public debate against the severity of the infringement on the right to privacy. An expression that greatly contributes to public debate will be given priority on the constitutional scale when weighed against a medium-level invasion of privacy; infringement on the core of privacy will be afforded protection from a medium-level infringement on freedom of speech. Indeed, an issue that is important in and of itself is the existence of a parallel infringement, similar in degree, such as a collision between an expression that greatly contributes to public debate and severely impinges on the core of privacy. I need not resolve this issue in this appeal. Such a decision will require a meticulous examination of the details of the case in question. The appropriate balance, to my mind, is this: preferring an infringement on the fringes of the right to privacy to the alternative of an infringement on the core of freedom of speech, and preferring an infringement on the fringes of freedom of speech to the alternative of an infringement on the core of the right to privacy.

 

127. An aid as to the degree of infringement on the right to privacy is to be found in the examination of numerous characteristics, including: (1) the "geographic" location of the infringement on the right, at its core or on its margins; (2) the nature of the relationship and the duties of trust between the parties; (3) the publicness or privacy of the figure; (4) the manner of publication; (5) the way in which the information came to the knowledge of the promulgator; (6) the conduct of the person with respect to invasions of his privacy prior to the publication; (7) the infringement, whether one-time or continuous. These criteria and others like them assist the presiding judge in deciding the severity of the injury.

 

128. In deciding the matter at hand, we have adopted an arrangement similar to the one practiced in the European legal systems. These legal systems are better suited to our legislative and constitutional structure. Let us keep in mind and give heed: turning to comparative law harbors both peril and blessing. The blessing lies in learning from the experience of others, as articulated by Justice Holmes "The life of the law has not been logic, it has been experience" (Anonymous [Holmes], Book Notices, 14, Am. L. Rev. 233, 234 (1880)). Comparative law allows us to enrich our world, learn and acquire knowledge.  However, alongside the blessing, there is also danger - "The root of faith is the root of rebellion" – learning in the "copy-paste" method is not appropriate. Each and every system has its unique characteristics: the values underpinning the system, a legislative and constitutional structure, national history, political ideologies and more. These unique elements affect the rulings of the court: "It is a burden that we bear to be careful not to be captivated by foreign legal systems, and primarily – to know to distinguish and choose between principles and doctrines and manners of thought and solution techniques – in which inspiration and wisdom can be found – to specific solutions and details that we will leave unnoticed. Indeed, comparative law expands the mind, it enriches with knowledge and wisdom, rescues us from provincialism, yet, at the same time, let us not forget that it is ours and our situs that we are dealing with, and let us beware of an imitation of assimilation and self-deprecation" (L.Cr.A. 8472/01 Maharshak vs. the State of Israel, PD 59(1)442, 474 (2004)); and in other words: "This comparative law – whether on the international level or the state level – holds great importance … however, every country has its own problems. Even if the in-principle considerations are similar, the balance between them reflects the uniqueness of every society and the characteristics of its legal arrangements … indeed, that is the power and these are the limits of comparative law. Its power lies in the expansion of the interpretational field of vision and horizon. Its power lies in the guidance of the interpreter as to the normative potential held by the legal system … its limits are in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it treats individuals and society. Indeed, comparative law is like an experienced friend. It is advisable to listen to his good advice, but it should not replace self-decision" (see H.C.J. 4128/02 Adam Teva V'Din – Israel Union for Environmental Defense vs. the Prime Minister of Israel, PD 58(3)503, 515-516 (2004)).

 

129. As aforesaid, the American legal system places supreme importance on freedom of speech. Only rarely will freedom of speech retreat therein before the right to privacy. This legal perception is not in line with the common standard in common law and continental law jurisdictions. It is based on the First Amendment to the Constitution, whose status and importance in American case law and culture is a well-known fact that requires no proof. American legal policy reflects, de facto, a nearly generic preference of freedom of speech over the right to privacy.

 

130. Should we learn from the European legal systems or follow in the footsteps of their American counterpart? As for myself, the answer is clear, and results from the remoteness of the American system from the Israeli constitutional tradition, from the legal framework and from our Hebrew legacy (see and compare: Eli Salzberger and Fania Oz-Salzberger, "The Tradition of Freedom of Speech in Israel", Quiet, Someone is Talking! The Legal Culture of Free Speech in Israel, 27 (Editor: Michael Birnhack, 2006)).

 

131. On the constitutional level – the status of the right to privacy as a basic right is established in Section 7 of Basic Law: Human Dignity and Liberty. Freedom of speech is absent from this law. Without delving into the thick of the question – of whether freedom of speech is included in the constitutional rights contained in the Basic Law – it is undisputed that "Freedom of speech is not within the rights explicitly enumerated in the Basic Law". Even those who include freedom of speech in the Basic Law believe that it is derived from the principle of human dignity and self-fulfillment (see: Interpretation in Law (Constitutional Interpretation) above, on pages 427-428). For details and references on this matter see also: Hillel Sommer "The Non-Enumerated Rights – of the Scope of the Constitutional Revolution" Mishpatim 28 257, 318-322 (5757)). The adoption of an outlook that grants freedom of speech "supreme status" over the right to privacy has no footing either in the constitutional text itself or in its reasoning. As may be recalled, when the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation were legislated, the Basic Law: Freedom of Speech and Organization Bill was also submitted, but failed to pass into a law in the Knesset (see Bills 5754 101).

 

132. On the theoretical level, it is possible to base a chronological approach of "[T]urn from evil and do good": preventing an invasion of privacy first and realizing artistic freedom later. This, in order to prevent creative work whose glory would come from trampling over others: "Man is like the tree of the field and speech is his fruit…and just as a bad fruit does not emerge from a good root and a good fruit does not emerge from a bad root, so is man's speech when he quarrels with his fellow man and insults him, this indicates that the root from which the insult comes is bad, and therefore the insult is within him, because the bad thing coming out of him is present in him, and where the trunk of the tree is flawed so is what will come out of it" (the MaHaRal, Netivot Olam [Paths of the World] B, Netiv HaShtika [Path of Silence], Chapter A). This issue deserves thought and contemplation, as to both theory and practice. As for me, I agree with the words of Justice I. Amit in Re. Captain R. (above, in paragraph 5 of the judgment): "Since the legislature has chosen, in the Basic Law:  Human Dignity and Liberty, to elevate the right to dignity and understate freedom of expression, I believe weight should be ascribed to that, in the sense that it may not be predetermined that in a collision between the two, the weight of the right of expression will prevail. I will note that in many judgments we find reliance on the judgment in Re. Avneri as part of the reasoning for a preconceived preference of freedom of speech, but one should bear in mind that this judgment was rendered prior to the enactment of Basic Law: Human Dignity and Liberty. In my mind, when the matter at hand pertains to a collision between freedom of speech and the right to a good name in a private lawsuit under the Defamation Prohibition Law – to be distinguished from a collision between freedom of speech and other values, such as the protection of public feelings – the balance should be carried out ad hoc, and one should beware of a formula that includes a "coefficient" or "power multiplier" that favors freedom of speech". These words also coincide with the aforementioned statements by Prof. Barak, whereby "The scope of the individual's right to freedom of speech against the State is more comprehensive than the individual's right to freedom of speech against another individual" (Barak, Human Dignity, above on page 723). Hence, in the balance between the freedom of speech of one individual and the privacy of another individual, freedom of speech is not to be given automatic precedence nor granted "super-status".

 

133. On the legislative level – the Protection of Privacy Law prescribes in Section 18(3) that "In any criminal or civil proceeding for infringement of privacy one of the following may constitute a good defense … there is public interest in the infringement which justified it under the circumstances of the case". The language of the law does not provide a sweeping protection to any infringement that has a public interest. This language expressly deviates from its American counterpart, which offers protection to any expression of public interest and spares any further examination of the magnitude of the infringement. This is not our way. We hold America in esteem, but we do not acquire all of the goods it offers. It is not for naught that the Israeli legislature rejected the proposal to omit the words "which justified it under the circumstances of the case" (see: Eli Halm Protection of Privacy Law 235 (2003)) (hereinafter: "Protection of Privacy Law"). Case law states: (C.A. Registrar of Databases vs. Ventura, PD 48(3)808 827 (1994)): "The question that needs to be examined in order to establish the protection of Section 18(3) of the law is not whether the public has an interest in the information, but rather whether there is a cause that justifies the invasion of a person's privacy in order to satisfy such public interest". This position has also been expressed in literature: "It is not sufficient that the invasion pertained to a public interest, but rather it has to be clear that there was a public interest in the invasion itself. That is to say, the fact that the subject-matter of the publication in general is of public interest will not lead to the application of the protection. The person advocating it will need to persuade that the public interest required him to invade another's privacy. The question of existence of a public interest cannot be examined by the court merely according to a general formula, and it will need to give heed to the circumstances of the matter adjudicated before it, in order to decide whether the invasion of privacy is justified under such circumstances" (Ze’ev Segal "The Right to Privacy versus the Right to Know", Iyunei Mishpat 9 175 193 (1983)). For additional information see also: Ruth Gavison "Prohibition on a Privacy Invading Publications – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204-214 (Editor: Ruth Gavison, 1982)).

 

134. Our Jewish Heritage – the right to privacy seeps through the slits of the comprehensive writings of Jewish law. Prohibitions on defamation, gossip, Herem De-Rabbeinu Gershom [Ban of our teacher Gershom], Heizek Re'iyah [damage by seeing], are only a few of the many appearances of the right to privacy in Hebrew law (see, for example: Nahum Rakover Protection of Privacy (2006); Itamar Warhaftig A Person's Privacy– the Right to Privacy in the Halacha (2009)). We cannot specify and enumerate its various appearances here, and we will therefore make do with a brief review of an issue that is close to the matter at hand – the "Bal Ye'amer" [not to be told] prohibition. This prohibition is defined in the Talmud (Bavli, Yoma D, B) as follows: "Whence do we know that if a man had said something to his neighbor the latter must not spread the news until he tells him ‘go and say it’? From the scriptural text: The Lord spoke to him out of the tent of meeting, le’emor [saying] ". This prohibition was interpreted in the answers of Rabbi Haim Palachi (Q&A Hakakei Lev, Part A, Yoreh De'ah, Title 49 (hereinafter: "Hakakei Lev Q&A"): "And it further appears to my humble mind to say that even if a person sends a letter to his friend, the friend who received the letter is forbidden to disclose the contents of the letter to others. Even if it concerns nothing unusual, contains no secret nor something indecent nor damage to the writer of the letter, there is a prohibition to disclose, as stated in the Gemara, [when] anything told to a friend is not to be told, until he says so. All the more so where disgrace or a secret are concerned, and damage arises when it is disclosed". Indeed, under Jewish law, a person is prohibited from revealing the secrets of his fellow man, not only on grounds of gossip, but also in order to prevent harm. As articulated by Rabbi Yonah Girondi: "And a person must conceal the secret his friend will confidentially reveal to him, even though revealing that secret is not a matter of gossip, because revealing the secret will cause harm to its owner and a reason to breach his intentions… because the person revealing the secret has only just left the path of modesty, and here he is violating the will of the owner of the secret" (She'arei Tshuvah Part C, Title 225). Therefore, revealing a secret is not only a betrayal of trust, but also a blatant invasion of the private space of the owner of the secret and a "breach of his intentions", i.e., - impingement on his liberty. Another opinion was expressed by Rabbi Haim Palachi, whereby the person who discloses the secret of another person, steals the other person's proprietary right to the secret he told him: "Veritably stealing his mind, which is at the hidden depths of his heart" (Q&A Hakakei Lev above, ibid).

 

135. The formal course for our reference to Jewish law, Section 1 of the Foundations of Law Act, 5740-1980, prescribes as follows: "Where the court, faced with a legal issue requiring determination, finds no answer thereto in the statues or case law or by analogy, it will determine in the light of the principles of freedom, justice, equity and peace of Israel's heritage”. Basic Law: Human Dignity and Liberty outlined, in Section 2, its purpose to establish "The values of the State of Israel as a Jewish and democratic state". It appears unnecessary to discuss the level to which Jewish law is obligatory in the Israeli legal system. It is our privilege that the tradition of Israeli law does not begin in 5708, upon the establishment of the State of Israel, but is rather rooted in a tradition of thousands of years. A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law and holds the protection of a person's privacy in high regard. As articulated by Chief Justice A. Barak: "Reference to the fundamental values of Jewish law is not reference to comparative law. It is a reference to the justice of Israel. It is a mandatory reference" (Aharon Barak A Judge in a Democratic Society 290 (2004)).

 

136. The proper position in a collision between the rights in question – I believe it is the one warranted by reality – is the examination of every case on its merits, without an in-principle ruling as to the precedence of one right over the other. A severe infringement of freedom of speech would outweigh a light and a medium infringement of the right to privacy; a severe infringement of the core of privacy would outweigh a light and a medium infringement of freedom of speech. This rule must be put into practice whenever the rights collide with one another. It is not for us to complete the task, but neither are we free to avoid it.

From the General to the Particular – the Right to Privacy and Freedom of Speech

137. We must take several steps in order to analyze the novel at the center of the appeal before us, determine the severity of the infringement on rights, the damage of the collision between them and the balance required under the circumstances of the matter: firstly, we will discuss the degree of fictionalization of the protagonist and the similarity to reality; secondly, we will examine whether the invasion of the Respondent's privacy is at the core of the right to privacy or at its margins, and discuss the degree of the injury; thirdly, we will examine the severity of the possible violation of freedom of speech.

Degree of Fictionalization

138. Two opinions by senior scholars in the field of global and Hebrew literature – Prof. Ariel Hirschfeld and Prof. Hannan Hever – have been placed before the District Court. In the opinions, the scholars impressively explained why the novel in question belongs to the category of fiction literature and is not classified under the autobiographic-historic category. Whilst "The historian claims that what he writes really happened", the novelist claims "that what he wrote did not happen but rather could have happened". In short, "The historian has a truth claim. The novelist has no truth claim" (see Hirschfeld, in Sections 7 and 8). Hirschfeld continues to examine in detail the creative work of the Appellant and proves, based on its internal and external attributes, the elements of pattern and style thereof, that this text belongs to the literary-fictional type. His fellow scholar, Prof. Hannan Hever, reaches a similar conclusion. According to his position "The distinction between an autobiographic novel and a fictional novel does not depend upon the closeness or remoteness of its plot from the reality of the novelist's life. It is an objective test that is derived from the interpretation of the reasonable reader to the gamut of indications in the novel". After "considering the cumulative weight of the indications found in the novel" Hever reached the conclusion that these indicate "unequivocally that the book deals with the construction of fiction rather than actual reality and that no 'autobiographical contract' was reached between the writer and his readers". Prof. Hever even went as far as to say that "this conclusion refutes any claim based on this argument" (see Hever, in Section 3). A similar conclusion was expressed in the affidavit of the writer Mira Magen, who accompanied the Appellant in the "labor pains" of the book.

 

139. The coming together of different worlds of content harbors both a blessing and a peril. The blessing – in mutual enrichment, in learning from the different and the similar; and the peril – the blurring of the lines that separate the disciplines. Different purposes lie at the basis of law and literature. The roles of law – the resolution of disputes, the imposition of order and the administration of justice – are not in keeping with the objectives of literature, which are the creation of art in and of itself and the creation of meaning for man, as Prof. Hirschfeld says. At times, law and literature go hand in hand, and then law girds up its loins and fights in the defense of literature, but at times – it fulminates against it. The definition of a creative work as fictional, in one area – literature – does not compel a similar definition in another area – law. "Every State in its own script and every people in its own language". The basic assumptions that underlie the different disciplines sometimes lead to opposite definitions and conclusions. That is also the case in the matter at hand.

 

140. Literary fiction expresses an "unwritten contract" between the reasonable reader and the writer. One of the terms of the contract is the lack of connection between the creative work and reality. This is not the case where legal fiction is concerned. The law, contrary to the literary-professional position expressed by the expert professors in the opinions, does not render its judgment in a binary world in which the work is categorized into one compartment and not the other. The law examines the degree to which the work is fictional. At times, the work slightly resembles events that occurred in real life; at times the work is based on such events, but without a full compatibility; and at times, such events are reflected in the actual work word for word. The examination of the degree of fiction is not a theoretical matter. It will be carried out according to the extent of the reader's acquaintance with the events that appear in the work. At times, only the soul mate of the real-life character would be able to recognize the events described through the lines. However, at times, close acquaintances of the character would also be able to recognize it. And sometimes its distant acquaintances, and sometimes the nameless amorphous reasonable reader would be able to identify it. Adopting a legal policy that is based on the literary worldview of the scholars Hirschfeld and Hever is inappropriate. Such a policy would allow those who so seek to publicize things that amount to invasion of privacy and defamation under a literary-fictional guise. The reasonable reader would view the literary manifestation and would be able to ignore the real-world one. However, the acquaintances and cherishers of the real figure would easily recognize it, process the information in their consciousness, and arrive at real-life conclusions; not fictional ones. This would open the door to the nullification of the laws of privacy protection and defamation prohibition.

 

141. Examining the degree of fiction of the creative work before us indicates that the character of the female protagonist includes numerous and unique identifying details, which enable the recognition of the Respondent. Among these, we can enumerate the description of her physical appearance, details of her age, unique occupation, her place of studies, her workplace and her place of residence, details of her special creative work, identifying details of the Appellant, her partner, and events that occurred in reality in the presence of third parties. In its judgment, the District Court correctly articulated these details (ibid, paragraph 40):

 

"a.        The female-protagonist is described in the book when meeting the male-protagonist [as being[ at the age of the Plaintiff at that time, and as someone who studies in the same institution and in the same department as the Plaintiff had, and works at the same place and in the same position as the Plaintiff had. The Plaintiff resided with her partner at the time relevant to the claim in the area described in the book, her partner’s also lived in the immediate area of the location described in the book. The female-protagonist has the same number of siblings as the Plaintiff and her parents are of the same ethnic origins as the Plaintiff's parents.

 

b.         The physical appearance of the female-protagonist as described in the book bears a great resemblance to the physical appearance of the Plaintiff, including her hair, the color of her eyes and the presence of tattoos in locations similar to the ones specified in the book. The book describes many additional details with respect to the female-protagonist's appearance, her hobbies and her past; however, these are less pronounced for the identification of the Plaintiff with the female-protagonist.

 

c.         The book describes, as aforesaid, the Plaintiff's graduation project. The book includes a conceptual description of the project and describes all of the stages of preparation of the project as well as its visual appearance. It is a unique project that had been publicly presented as the Plaintiff's graduation project in the presence of her teachers and schoolmates and consequently also identifies the Plaintiff. The vast volume apportioned in the book to the work and the stages of preparation thereof also points the finger, in and of itself, at the Plaintiff.

 

d.         The descriptions of the male-protagonist in the book in a manner which identifies him as the Defendant also contribute to the identification of the Plaintiff, as the Defendant's partner at that time, as the female-protagonist. A fact to be added thereto is that the book was written by the Plaintiff [sic; should be "Defendant"] under his own name, in the first person, and this too contributes to the identification of the Plaintiff by her immediate environment, which knew her to be the Defendant's partner.

 

e.         The book includes events that undisputedly occurred in reality, in the presence of third parties, and which enable the identification of the Plaintiff as the literary character in the eyes of the persons who were present in the events or had heard about them from the parties".

 

142. These details – factual findings determined by the District Court, and there is no cause to intervene therein or change them – tip the scale and mandate the conclusion that the Respondent can be recognized as the female-protagonist of the Appellant's book. On the whole, according to the nature of the details and their accumulation, there is basis for recognition by the reasonable distant acquaintance, a colleague, a classmate and a potential student. To this we must add that it is the course for juicy details such as these to reach broader circles. A description of physical appearance in a novel is not generally etched in the mind of the reader, and it is temporary and passing. On the other hand, a description of the character's sexual habits and details of her doings in the bedroom fulfill voyeuristic urges and serve as juicy raw material, tradable currency.

 

143. A side note on the opinions of the experts, Prof. Hirschfeld and Prof. Hever: A light and superficial perusal of the theoretical literature that addresses fiction gives rise to distinctions which were not mentioned in the opinions at all, and mainly, the existence of midpoint intermediate definitions between fiction and documentary, such as the Roman à clef genre. For some reason, the experts chose not to present the court with the theoretical definitions and sub-definitions for the term "fiction", which are extensively discussed in research literature. That is a problem with that. As a result, Prof. Hever decisively determined in his opinion that his own conclusion "refutes any claim based on this argument". There is no room for a conclusion such as this in an expert opinion. The expert is required to opine in the field of his expertise, not to overstep the jurisdiction of the court.

The Degree of Invasion of Privacy

144. As aforesaid, with respect to the invasion of privacy, we make a distinction between an impingement on the core of privacy and an impingement on the margins thereof. The core of the right – intimate details of a person's life – "the inner circle of life". The margins of the right – details that belong to the external space of a person's life – "the external circle of life". In this appeal, we are not required to discuss the "twilight zone" that lies between the margins of the right and its core. We are concerned here with a clear infringement on the core of the right. The book includes "a detailed description of matters pertaining to the private life of the Plaintiff… a detailed description of the Plaintiff's relationship with the Defendant, including events, conversations and descriptions that are unmistakably intimate. The book includes a description of the Plaintiff's relationship with her former partner until their breakup, with the parents of her partner and with her own parents, including statements made by the Plaintiff with respect to her parents in personal conversations she had with the Defendant. The Plaintiff rightly claims that the book comprehensively, and without any camouflage, describes her most intimate relationships, exposes her thoughts, feelings, desires, secrets and sexual life. All in such a manner that the Plaintiff's life, down to the most intimate details, is spread out as an open book before the readers" (paragraph 49 of the judgment of the District Court). Descriptions of this type constitute a severe impingement on the very core of the right to privacy.

Protection of the Trust Relations between Couples

145. "Acquire a friend for yourself". This sound advice, which is based on nature and human need, is given to us by Rabbi Joshua Ben Perachia (Mishna, Avot, 1, 6). "And how will one acquire a friend? This teaches that a person should acquire a friend with whom to eat… and read … and reveal all of his secrets, the secrets of the Torah and the secrets of worldly things". (Avot de Rabbi Natan 8, 3). A person needs a friend; man and woman need one another. "Either friendship or death" (Bavli, Bava Batra 16, 2). The relationship between a man and his friend and between a man and his wife serves as a haven for a person, a protected and safe place. The outside world, it is strange and alienated. A man's home is his castle. In the public domain, a person is constantly under a scrutinizing and inspecting eye. In private, in the privacy of his own home, together with a friend or a spouse, a person has a piece of land, physical relaxation and peace of mind. This relationship is characterized by a high level of trust between the parties. At its peak, the friends and the spouses accept each other, as they are, unreservedly. Relationships such as these encourage a person to open his heart and share his secrets with another. Unlike the scale armor that a person wears when going out into the outside alienated world, relationships like these are characterized by removal of the outer layer and exposure of the inner world. In the course thereof, the spouse is stripped bare, physically and spiritually, before the other spouse. A worthy legal regime grants protection to such a relationship. Secrets and details revealed in the framework of interpersonal relationships, in which there is a high expectation for trust relations, are worthy of legal protection. Words such as these were stated by the English Court:

 

"There could be hardly be [sic] anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed". (Argyll v. Argyll [1967] Ch. 302, 322).

 

For additional information see also: Nigel Lowe & Gillian Douglas, Bromley's Family Law 113-118 (2007).

 

146. The Appellant and the Respondent had a longtime romantic relationship that lasted approximately five years. In the course of their acquaintance, the Respondent separated from her partner, and the Appellant divorced his wife. Clearly such a stable and lengthy relationship gives rise to an enhanced duty of loyalty. In exposing intimate details, which one of the parties learned about during the couple’s relationship, there is severe harm to the rationale at the base of the protection of privacy and to the inclination to safeguard and protect the existence of interpersonal relationships. Naturally, the context in which the details were disclosed, and the ones for which the question of exposure is on the table, also adds to the depth and to the weight of the invasion of privacy in the case at bar.

 

147. Interim Conclusion: After examining the degree of fiction in the creative work and the degree of infringement on the right to privacy, we have learned that there is little fiction and great harm. This is a creative work, a novel, in which the reasonable distant acquaintance may recognize the Respondent. It is a grave infringement on the core of the right to privacy, the trust relationship between a couple. The inevitable result is that publishing the novel will cause a severe and intense invasion of the Respondent's privacy; the identification and the injury join together to create heavy weight on the side of privacy on the constitutional scale.

Freedom of Speech

148. The extent of the violation of freedom of speech will be examined according to its underlying rationales. We will distinguish between rationales that reflect extensive social values such as: human dignity, the exposure of truth, and the importance of freedom of speech in a democratic regime. Realizing these values through the examined expression elevates the protection of the expression to a high level and the freedom to express it. On the other hand, insofar as the expression primarily stands on the basis of personal wellbeing, the value will be reduced to interest level, simultaneously reducing the degree of protection of the freedom to express it. This is not a binary choice. Many expressions contain several elements that stem from different rationales. The court is entrusted with the task of deciding the dose of the rationales fulfilled by the expression.

 

149. The novel authored by the Appellant embodies artistic freedom. This specific manifestation does not merit as severe a protection as its fellow political expression (see and compare: Barak, Human Dignity, above on page 731), but nor does it descend to the bottom tier, like its commercial counterpart. As such, it fulfills different values that underpin freedom of speech – the exposure of truth, and the importance of freedom of speech in a democratic regime – but it does not involve a full realization of these rationales, which are wholly realized in political expressions. Artistic freedom is also known for its self-serving personal aspect. The creator wishes to glorify his name and make himself renowned. The weighting of these rationales indicates that the expression before us realizes freedom of speech to a medium degree. Ideal and interest are intermingled therein. The violation of freedom of speech in the case at bar is also not of the severe type, as it does not originate in censorship on the part of the governing authorities, but rather in the Respondent's legal action as a person concerned with protecting her right to privacy. The balance between a serious and severe infringement of the right to privacy against a medium violation of freedom of speech tends toward the protection of privacy.

Concern of Literary Work being Shelved

150. According to the Appellant, denial of the appeal "might lead to absurd results" and to the shelving of important literary work based on "actual" events. Counsel for the Appellant quotes the CEO of the publisher, who protested against such legal policy in his testimony at the District Court: "In fact, what will be asked of me, is not to prove that things happened, but rather to prove that things never happened … I will have to prove that the fictional protagonist did not have such a neighbor … how can you prove what did not happen … any work whatsoever is impossible if we come to that place, which I find preposterous … it is the absolute paralyzing of original creative work" (page 110 of the court transcript). The Appellant also notes a considerable list of important literary works that would have been shelved and never published, according to the legal policy set by the District Court.

 

151. The Appellant claims that "The judgment may have… destructive implications on an entire branch of literary writing. Its practical implication is that writers writing an autobiography or an autobiographic novel are prohibited from relating a relationship with another person and sharing with the public, through the work, experiences that they themselves had had in that relationship". In conclusion, the Appellant calls upon the court to stop and ask itself "Would I be willing to apply the exact same criteria to one of the masterpieces of Hebrew literature? Were I to ignore the identity of the Appellant and visualize Amos Oz, or David Grossman, or Meir Shalev before me – would I then too arrive at the same outcome?"

 

152. I have done as the Appellant directed. I turned to ask myself, would I indeed be willing to adopt similar criteria in other situations? But I will first say a few words. The utilitarian argument regarding the increase of the aggregate wellbeing of society as a result of the publication of literary works has great charm. It is supposedly simple: in situations where the right of one private individual collides with the right of another person, which has a high aggregate benefit, the second right should be preferred.

 

153. However, this argument bears a twofold flaw: firstly, the protection of human dignity also rises from utilitarianism itself, since a society that throws human dignity down the gutter significantly reduces the aggregate wellbeing. This principle was not overlooked by the father of the utilitarian doctrine, John Stuart Mill, who, in his book "On Liberty", determined that aggregate benefit and utility also rise from a regime that protects human rights. This utility should be taken into account when examining the aggregate wellbeing regime in situations of human rights' violation. A similar position is brought in Midrashei Chazal [the writings of our sages may their memory be blessed] that addressed the construction of the biblical Tower of Babel: "Rabbi Pinchas says that there were no stones there to build the city and the tower, so what did they do? They fashioned bricks and burned them as artisans of earthenware until they built it seven miles high … and if a man fell down and died they paid him no heed and if a brick fell down they sat and wept and said when would there be another to replace it" (Pirkei de Rabbi Eliezer(Higger), Chapter 24). The preference of brick over man – this is what stands at the heart of Chazal's criticism of the Babylonian tower.

 

154. Secondly, there are situations wherein we decide that the protection of human dignity is more important than the accomplishment of other social values. This is the case, for example, in legal policy on experiments in humans. The benefit held in this type of experiment and the aggregate wellbeing expected therefrom could have a crucial effect on the future of the whole of mankind. Despite this, the law has chosen to apply a restraining legal policy that takes a firm hand against these, in order not to violate human dignity. A similar principle is reflected in the words of Chazal who determined that "So great is human dignity that it overrides the negative commandments of the Torah" (Bavli, Berachot 19, 2).

 

155. Clearly, one must not underestimate the importance of the artistic freedom in general, and the autobiographical one in particular. It should be granted an honorary place in the Israeli realm of rights. As a rule, the court will not prevent the publication of an autobiographic novel. Prior restraint is a highly rare act. However, it is possible that as a result of the legal policy outlined in the judgment of the District Court and now adopted in our ruling in this court, mankind as a whole will suffer the loss of several literary works. This argument, as aforesaid, does not deny our ruling. There are values that merit even the loss of several "good books". Man before book. Books are meant to serve mankind, not the other way around, in the sense of "a maidservant who inherits her mistress" (Mishlei, Book of Proverbs 30, 3). It appears that the Appellant's words of "cultural ruin" and of his own work which "went up in flames" were overstated, to the point that he has forgotten which is the cause and which is the effect.

Copyright and Defamation

156. The District Court found, as mentioned, that there was no need to rule on the Respondent's arguments with respect to Appellant's infringement on her copyright to her letters – which he had used in his book – because there was anyway no justification to award additional monetary compensation beyond the compensation for invasion of privacy. The Appellant did not address this cause of action in his summations. There is therefore no need to address this issue in the framework of the appeal at bar. Likewise with respect to the Appellant's claim that the publication of his book does not constitute publication of defamation against the Respondent. According to him, the District Court erred in finding that "The Plaintiff (the literary character) is described in the book as a woman who had an intimate relationship with a married man and did so in parallel to her relationship with her then partner. She is further described as someone who is willing to trample over anything that stands in her way to her goals, and as someone who uses people 'as if they were objects'" (paragraph 68 of the judgment). The Respondent, on her part, claims that this ruling of the District Court should also remain unchanged. In my opinion, this matter too does not require a ruling in the framework of the appeal at bar, as it has no bearing on the remedies.

Consent of the Respondent

157. Section 1 of the Protection of Privacy Law prescribes that "A person will not invade the privacy of another without his consent". The Appellant claims that once the Respondent expressed her consent to the writing of the book, its publication is no longer a prohibited invasion of privacy. The District Court discussed this argument at length and its conclusion was resolute: "It should be determined that not only did the Plaintiff not give her informed consent to the invasion of her privacy, but the Plaintiff also made clear to the Defendant before the publication that she forbids him from including in the book any details that may lead to her identification" (paragraph 65 of the judgment). I accept the ruling of the District Court, based on the materials brought before it. It is a ruling on a matter of fact. As known, the court of appeals is not in the habit of intervening in matters of this type, and there is no good reason to deviate from the rule. I will, however, briefly address the legal aspect of consent to invasion of privacy.

 

158. It is inarguable that the Respondent expressed before the Appellant her objection to the publication of the book several times. According to the Appellant's claim, this objection was preceded by consent. What is the nature of this consent and can one withdraw therefrom?

 

159. Various scholars have expressed their position that "Consent may be compared to a contract, and the principles of contract law will apply to consent" (Protection of Privacy Law above, on page 45); and that "There is no impediment to the application of the principles of contract law to consent" (Private Space, page 100). Despite the noticeable similarity, scholars have pointed to the difficulty in the "blind application" of contract law: "Although it appears that the principles of contract law apply to the element of 'consent', the protection of privacy laws give rise to dilemmas that are not always resolvable through contract law. Thus, for example, it may be that a person who gave consent will withdraw the consent he gave: the basic principle in contract law mandates enforcement of the obligation. However, in our opinion, this remedy is not necessarily suitable in the event of withdrawal of consent to relinquish the right to privacy. The personal nature of the consent to relinquish privacy and the elevation of the right to privacy to the rank of a basic right, require the interpreter to use additional tools to examine 'the consent', in addition to contract law. When a person withdraws his consent to relinquish his privacy, one should not, in our opinion, impose the ordinary law of enforcement on him and publish information that invades his privacy in reliance on previous consent. A person should be allowed, primarily in circumstances that concern intimate information, the ability to withdraw his waiver of his right to privacy against monetary compensation if the party who relied on the waiver of privacy has been damaged as a result" (see Protection of Privacy Law above, 46; for similar positions see: Private Space above, page 100-104); The Law of Privacy and the Media above, on pages 537-538).

 

160. It appears to me that a person's consent to invasion of his privacy is not the final word. The constitutional status of the right, the hard personal nature of invasion of privacy, may place the remedies for the withdrawal of consent in a position that differs from the one under contract law. Enforcement may possibly be unjustified in circumstances of severe invasion of privacy, compared with monetary compensation that may be justifiably awarded due to the withdrawal of consent, if it caused damage. According to a "parallelogram of force" between the severity of the invasion of privacy and the validity of the consent, the milder the invasion the greater the chances of receiving an enforcement remedy; the more grave the invasion, the more the balance will tilt towards avoiding enforcement, while granting the possibility of a compensatory remedy. In the case at bar, as aforesaid, the District Court rightly ruled that there had been no consent. There had been the explicit objection of the Respondent to the inclusion of a detail that could bring to her identification.

Conclusion

161. The Appellant's freedom of speech "collides" with the Respondent's right to privacy. His artistic freedom, as reflected in the book he has written, harms the Respondent's good name. The autobiographical work has many notable virtues. However, the book in question is actually a documentary book disguised as a work of fiction – as the District Court has ruled – and its invasion of the Respondent's privacy is grave and severe. We are concerned here with two constitutional rights – freedom of speech and the right to privacy - and, in principle, neither takes precedence over the other. In our ruling, we have examined whether the weight of the benefit that will arise from the fulfillment of one right exceeds the weight of the damage incurred by the other right. Our in-principle conclusion is that on the constitutional scale, freedom of speech will prevail in a situation of mild and medium infringement on the right to privacy against a severe violation of freedom of speech; the right to privacy will prevail when the violation of freedom of speech is mild or medium and faced with an intense impingement on the core of privacy. We implemented the principle, according to the circumstances of the matter and the book in question, and we have found that there is little fiction and great harm. A grave and severe invasion of the Respondent's privacy, whereas, on the other hand, there is a medium violation of the Appellant's freedom of speech. The identification of the Respondent in the Appellant's book as the female-protagonist, together with a detailed description of her inner life circle, including matters that are manifestly intimate, outweigh, in their aggregated weight, the infringement on the Appellant's freedom of speech, in which ideal and self-interest are intermingled.

 

162. Were the Appellant seeking to hold a photography exhibition in which he displayed the Respondent with him in the nude, it appears that an injunction would have been issued, in order for him not to do so. All the more so the book, where he portrayed the Respondent's body in her own bedroom and also exposed the depths of her soul and her innermost secrets. It is thus just that the District Court issued a permanent injunction prohibiting the publication of the book.

 

163. Therefore, I propose to my fellow-justices to deny the appeal and leave the judgment of the District Court standing. I further propose that the Appellant be charged with the payment of trial costs and legal fees to the Respondent in the amount of ILS 75,000.

 

 

 

Justice

 

Deputy Chief Justice M. Naor:

1. My fellow-justice, Justice Sohlberg, has laid out an extensive review. It appears to emerge from his review that were the case before us heard in the courts of the United States – the result would have been different. The result of disqualifying a book that has been written is a difficult result and ought to be kept for exceptional cases. I am afraid that the case at hand is such a case.

 

2. It appears that in his book, more than the Appellant sought to write about the female-protagonist, he actually sought to write of the male-protagonist, the experience of a man who leaves his home mentally and physically in a gradual process, first for short-lived affairs, and eventually for a relationship with the female-protagonist. The relationship with the female protagonist began when the male-protagonist was married and the relationship continued after the male-protagonist left his home. The work describes the difficulties in the relationship of the male-protagonist with his longtime wife, and with his children, difficulties that eventually also harm his relationship with the female-protagonist, for whom he cannot make room for in his world. It is not the female-protagonist who is at the center of the plot, although the female-protagonist and other women (to a lesser degree) hold an important place in the plot. The plot is centered on the man who leaves his home.

 

However, in his writing, at the center of which is the male-protagonist, the author has breached permitted boundaries and severely invaded the Respondent's privacy. Things could have been written differently to begin with. My fellow-justice rightly noted, following the findings of the District Court, that things were written in such a manner so that even a distant person who knows the Respondent would recognize that it was about her. The standard sentence appearing on the internal side of the book cover, that the plot of the book and the characters mentioned therein are all the product of the author's imagination and that any connection to living persons or characters is purely coincidental – does not reflect the situation as it truly is. This being the case – there was no room for various descriptions, which it would not be right to specify, that run as a common thread throughout the entire book. There was also no room to share with the reader the heroine's secret thoughts and her sex life. The Appellant wrote his book as he did while ignoring that grave invasion. We cannot illustrate the severity of the invasion with the details contained in the book, because such details would also constitute an invasion of privacy. It is sufficient for me to note that my words with respect to the serious invasion have been written after reading the book in full.

 

Although, as aforesaid, it could have been done differently to begin with. In the hearing we suggested allowing non-trivial changes in the book, but this was not achieved. We cannot assume the role of "chief editor" and the role of the one directing changes in a literary novel in a judgment. According to my impression, things could have been written differently to begin with, without significantly compromising artistic freedom, yet the Appellant wrote what he did in a manner that completely ignores the harm to the Respondent.

 

3. Despite the considerable difficulty I feel as to the need to censor a literary work – at the end of the day, I join my opinion with the opinion of my fellow-justice, Judge Sohlberg, and all while emphasizing that disqualifying a literary work should be done in rare cases. However, the case before us is, as aforesaid, such a case.

 

Deputy Chief Justice

 

Justice S. Joubran:

1. I concur with the thorough and comprehensive judgment of my fellow-justice, Justice Sohlberg. I will briefly note the reasons specified by my fellow-justice that have led me to this conclusion.

 

2. Firstly, the case before us gives rise to a complex question pertaining to the correct balance between the Appellant's freedom of speech and the Respondent's right to privacy in the framework of Section 18(3) of the Protection of Privacy Law, 5741-1981 (the "Protection of Privacy Law"). The section prescribes a balance between the right to privacy and the freedom of speech and public's right to know. In this context, I agree with the approach of my fellow-justice, whereby it is the court's role to pour substance into this basic formula, and in the case at bar – interpret it in view of constitutional principles (paragraphs 53, 68 of his opinion; L.C.A. 6902/06 Zadik vs. Ha'aretz Newspaper Publishing, paragraph 10 (August 13, 2008)).

 

3. In my opinion, in the balance between two constitutional rights of equal status, the highroad is to take a conciliating approach with the aim of allowing both rights to coexist by means of a proportionate impingement on one at the expense of the other (see and compare: H.C.J. 2481/93 Dayan vs. Chief of the Jerusalem District, 48(2)456, 474-475 (1994); A.P.A. 398/07 The Movement for Freedom of Information vs. the Tax Authority, paragraph 53 (September 23, 2008) ; A.P.A. 9341/05 The Movement for Freedom of Information vs. the Government Companies Authority, paragraph 31 (May 19, 2009); Ruth Gavison "Prohibition on a Privacy-Invading Publication – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204, 219 (1982)). In this spirit, we have tried to conciliate between the parties in the hearing we held on the appeal, and to reduce the invasion of the Respondent's privacy and allow the publication of the book. However, most regrettably, this attempt was unsuccessful. Only then, in the absence of the option to reconcile the rights, the path of a binary decision should be taken and one right preferred over the other (see: H.C.J. 1435/03 Jane Doe vs. the Disciplinary Court for State Workers Haifa, PD 58(1)529, 537-539 (2003)).

 

4. Secondly, the scope of the protection of speech is determined according to the rationales it fulfills. This court has held that the three rationales underpinning freedom of speech are the exposure of truth, individual self-fulfillment and the reinforcement of democracy (H.C.J. 399/85 Kahana vs. the Israel Broadcasting Authority, PD 41(3)255, paragraphs 14-16 of the judgment of Justice (his former title) A. Barak (1987) (hereinafter: "Re Kahana"); Ilana Dayan-Orbach "The Democratic Model of Freedom of Speech" Iyunei Mishpat 20 377 Chapter A (1996)).

 

5. In my opinion, although it is undisputed that the Appellant's book is protected under free speech, most of its underlying rationales (with an emphasis on the exposure of truth, as will be specified here) do not apply to the work, certainly not fully. In this context, I will note that a considerable part of the Appellant's claims, both before us and before the District Court, was based on the argument that this is a work of fiction, and therefore cannot in fact invade the privacy of the Respondent. In view of this, I accept the position of my fellow-justice that the rationale of "exposure of truth" does not fully apply to the book (paragraph 149 to his opinion). It is noted that it is written in the beginning of the book, black upon white:

 

"The plot of the book, the characters mentioned therein and their names are all the product of the author's imagination. Any connection between the plot of the book and events that occurred in real life, as well as between the characters mentioned herein and their names and characters or names of persons, living or dead, is purely coincidental".

 

6. In this state of affairs, I find it difficult to determine that the book helps "To ensure freedom of speech in order to enable various and diverse ideas and views to compete with one another. From this competition – and not from a governmental dictation of a one and only 'truth' – will truth float and rise up, as, in the end, the truth will prevail in the battle of ideas" (Re Kahana, in paragraph 14). In view of this, I believe that the scope of protection to be granted to the book is not broad whilst on the other side stands the Respondent's right to privacy in its clearest sense, and the latter should prevail.

 

7. On these grounds, I concur with the judgment of Justice N. Sohlberg.

 

 

Justice

 

Ruled as aforesaid in the judgment of Justice N. Sohlberg.

Rendered today, Nissan 24, 5774 (April 24, 2014).

Permitted for release today, Iyar 22, 5774 (May 22, 2014).

 

 

The judgment was sent in its entirety to the parties' counsels, and, at our request, they suggested light changes and omissions in order to prevent a situation where the contents of the judgment reveal details whose publication would undermine the injunction prohibiting the publication of the book. The main omissions and changes were incorporated into the language of the aforesaid judgment. We therefore allow the release of the judgment in its reduced format herein, while the prohibition on exposure of the names of the litigants and identifying details about them, as well as the judgment in its full format, still standing.

 

Deputy Chief Justice                               Justice                                            Justice

 

__________________

The copy is subject to editing and wording changes. Heb 11089540_009.doc

Information Center, Tel. 077-2703333; website, www.court.gov.il

HCJ 98/69

           

A. BERGMAN

v.

MINISTER OF FINANCE AND STATE COMPTROLLER

 

 

The Supreme Court Sitting as the High Court of  Justice

 

Before Agranat P., Sussman J., Landau J., Berinson J. and Manny J.

 

 

Editor's synopsis -

            Section 4 of Basic Law: The Knesset, requires that elections to the Knesset shall be "general, nationwide, direct, equal, secret and proportional". Sections 4 and 46 of this Law require that any amendment to section 4 be approved by an absolute majority of the Knesset. In 1969, the Knesset passed a Law providing public financing of the election campaign for the seventh Knesset, scheduled to be held in 1970. According to the provisions of this Law, which was not passed by an absolute majority, such funding is granted solely to party factions which are represented in the outgoing Knesset.

           

            The Petitioners contend that the funding provisions of the new Law are void for two reasons. The Law was initiated by several members of the Knesset as a private bill, whereas legislation that imposes a financial burden on the Treasury must be initiated by the government. By providing public financing only for existing party groups, the Law infringes upon the requirement in section 4 of the Basic Law that elections be "equal" and is therefore invalid since it was not passed by the absolute majority required under section 46 of the Basic Law, i.e., a majority of the members of the Knesset, at each stage of the legisation.

           

            The court issued an order nisi, calling upon the Minister of Finance and the Government Comptroller, to show reason why an order should not be issued directing the Minister to refrain from making any expenditure under the election financing Law and directing the Comptroller to refrain from performing any act which the said Law authorises or requires him to perform. The Respondents appeared in opposition to the order nisi.

               

                The court ruled that the order nisi be made absolute, holding:

           

1.      Whatever may be the law in England, there is no rule in Israeli law that forbids members of the Knesset from initiating a private bill that imposes a financial burden on the Treasury.

           

2.      All of the other terms in section 4 of the Basic Law, "general, nationwide, direct, proportional", relate both to the right to vote and to the right to be elected. There is no reason not to give the word "equal" a similarly broad meaning.

 

3.      The absolute denial of any funding to new party groups is a substantial violation of the principal of equality established in section 4 of the Basic Law, and therefore requires the support of an absolute majority of the Knesset at each stage of the legislation.

 

Note - The Knesset thereafter amended the Law to include financing for new party groups. The amendment was passed by an absolute majority of the Knesset members, although it is possible that such a majority was not required since, arguably, the new Law, as amended, satisfied the requirement of equality. At the same time, the Knesset enacted a second Law, also by absolute majority, which retroactively confirmed the validity of all legislation concerning election procedures that had been enacted previously. The effect of the Confirmation Law was to prevent judicial review of all such legislation previously enacted, even if it violated one of the entrenched provisions.

 

            For a later case dealing with the requirement of equality as it relates to public financing of elections, see the Rubinstein case, infra, p. 60. For a case dealing with the implications of the requirement that elections be "equal" with respect to public broadcasting time allowed each party, see the Agudat Derekh Eretz case, infra, p. 21. Both cases concerned legislation passed after the Confirmation Law, though the effect of the Confirmation Law was considered by the court in the Agudat Derekh Eretz case.

           

Israel case referred to:

[1]   E.A. 1/65, Yeredor v. Chairman of the Sixth Knesset EIections Committee 19 P.D.(3)365.

 

The Petitioner appeared in person.

 

M. Shamgar, Attorney-General, and Z. Terlo, Director-General of the Ministry of Justice, for the Respondents.

 

 

 

 

 

JUDGMENT

 

            LANDAU J.: On April 30, 1969 this court issued an order nisi against the Minister of Finance, to show cause why he should not refrain from any expenditure under section 6 of the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law 1969 (hereinafter: the Financing Law); and against the State Comptroller - why he should not refrain from any act which he is directed or authorised to implement pursuant to sections 11 and 12 of the Financing Law. The order nisi was issued on the petition of Advocate Dr. A. Bergman, on two principal grounds: one related to the manner in which the Financing Law was initiated and the other to the manner in which this Law was passed in the Knesset.

           

            The first argument is that since the Financing Law imposes a monetary burden on the Treasury, it could only have been initiated by the Government. In fact the Law was initiated by six Knesset members as a private bill (see H.H. 807). The Petitioner bases this argument on the English constitutional practice that finds expression in section 87 of the Standing Orders of the House of Commons, of 1958 (Halsbury-Simonds, vol. 28, p. 442). The Petitioner argues that these directives embody an important and necessary constitutional principle that the legislative branch may not decide on a monetary expenditure on its own initiative, as it does not bear the responsibility for finding sources of revenue to balance the new expenditure.

 

          The Petitioner's second argument is that the passage of the Financing Law was invalid and in violation of the principle of the equality of elections as provided in section 4 of Basic Law: The Knesset (hereinafter: the Basic Law). According to section 46, which was added to the Basic Law in 1959:

         

The majority required under this Law to amend sections 4, 44 or 45 will be required for resolutions of a plenary meeting of the Knesset at every stage of the legislation, other than the debate upon a motion for the agenda of the Knesset. For the purpose of this section "amendment" - either express or implied.

         

          And section 4 of the Basic Law reads:

         

The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

         

          The first reading of the Financing Law was passed by the Knesset by a majority of 24 to 2 (D.H., Sixth Knesset, Fourth Session, p. 1377), that is, by less than a majority of the number of Knesset members (61). As for the third reading, the Knesset records (ibid., p. 1674) state merely that the Law was "adopted", without a recorded count of the votes. The Petitioner argues that this session too was not attended by a majority of the Knesset members, and the Attorney-General, who appeared for both the Respondents, did not dispute that. In any event this is immaterial, since section 46 requires a "special" majority at every stage of the legislation.

         

          This petition raises potentially weighty preliminary questions of a constitutional nature, relating to the status of the Basic Laws, and to the justiciability before this court of the issue of the Knesset's actual compliance with a self-imposed limitation in the form of an "entrenched" statutory provision, such as section 4 of the above-mentioned Basic Law. However, the Attorney-General relieved us of the need to deliberate the matter by stating on behalf of the Respondents that they "do not take a position on the question whether the legal validity of a legislative enactment is a justiciable matter before this court, since they are of the opinion that the petition must fail on the merits". He so stated in his heads of argument and repeated it in his oral argument on the return day, and when asked what position he would take if the court found the petition substantiated, he replied that in such event he would put himself at the court's disposal to make his submissions on the question of justiciability. It is therefore up to the court to decide whether it wishes to examine the question of justiciability of its own accord. We have decided not to do so because, for obvious reasons, the substantive problems raised here require urgent resolution, whereas clarification of the preliminary constitutional questions would entail separate, lengthy deliberation. We therefore leave the question of justiciability open for further consideration and, clearly, nothing in this judgment should be taken as an expression of opinion on that matter. The Respondents have also not disputed the Petitioner's standing to file the petition, so that question also does not arise before us.

 

            We now return to the Petitioner's two arguments. The first can be answered briefly. Whatever the law in England - and we find it unnecessary to delve into that question - our law has no statutory provision to prohibit members of the Knesset from initiating a private bill that imposes a monetary burden. Indeed, the Knesset Rules adopted by this body under section 19 of Basic Law: The Knesset indicates the contrary. In the seventh chapter of the Rules, entitled "Debate on Bills of Knesset Members", rule 105(a) provides: "Every member of the Knesset may propose a bill". There is no limitation as to the content of the bill. Section 5 of the Law and Administration Ordinance, 1948, provides that

           

the budget of the Provisional Government shall be fixed by an Ordinance of the Provisional Council of State

           

and again nothing is said as to the manner of initiation of such budgetary legislation on the part of the legislature. The Financing Law here considered is sui generis: it is not a budgetary law in the technical sense, since it does not authorize the government to expend money but rather obliges the Minister of Finance to put certain sums at the disposal of the Chairman of the Knesset. There are no special provisions in our positive law as regards the procedure for enacting a statute of this kind. The Minister of Finance will have to find sources of finance for the monetary expenditure involved in the implementation of this Law, and if he encounters difficulty in doing so that is a matter which, constitutionally speaking, pertains to the relations between the legislative branch and the executive branch, which does not concern this court.

 

            That leaves the principal question: does the Financing Law contradict section 4 of the Basic Law? First, however, we wish to make it clear that this court ought not involve itself in the debate conducted in the Knesset and by the general public concerning the system of state financing of the general activities of the political parties and their specific activity in the elections campaign. Much has been said and written about the deficiencies of this system from the public perspective, while respected members of the Knesset representing a large majority of the House, including the initiators of the Law, have defended this system as necessary in our political reality. They stress, on the one hand, the improvements brought about by this Law compared to the previously prevailing state of affairs, especially as regards limitations on election expenditures and their auditing - two subjects that have no necessary connection with the matter of state funding; and they endeavour, on the other hand, to appease the critics by pointing to the experimental character of the entire Law which is intended to apply only to the seventh Knesset elections.

 

            This entire public debate falls outside the range of our judicial interest - the problem before us is confined within its legal framework. What is the Petitioner's legal argument? He argued, half-heartedly, that "it is doubtful whether the allocation of funds to political parties is an allocation for purposes of state", citing an opinion of the Massachusetts Supreme Court that such is not an expenditure for a "public purpose" in the sense of that state's constitutional law (197 N.E.2d 691). We have no similar provision in our law, which suffices to dispose of this argument. For us, therefore, the question is framed within the context of section 4 of the Basic Law alone. In this respect the learned Attorney-General argued that there is no contradiction between equality in the elections as secured under section 4 of the Basic Law and the provisions of the Financing Law. He contended that the entire section 4 deals only with the elections system in its technical sense, as evidenced by the marginal heading of the section, and that the principle of equality it embodies means only that each voter has one vote of equal weight - that and no more. In support of this argument he referred us to the legislative history of this provision, which has its origins in the Mandate period, in rule 4 of the Knesset Israel Elections Regulations of March 1, 1930, and also to the constitutions of other countries in which the principle of "one man one vote" finds explicit recognition. He argued that this technical principle should not be confused with the fundamental principle of equality for all before the law, which is likewise expressed in various constitutions. But we do not have a written constitution. It is true that we too recognize the equality of citizens before the law as a fundamental principle of our constitutional regime, yet that principle has not been embodied in a written constitution or even in a provision of a basic law that requires a special majority for amendment. Hence there is nothing to prevent the legislature from deviating from this principle even in a law passed by an ordinary majority. The Financing Law should be seen as part of the Elections Law, and section 4 of the Basic Law itself says that the Knesset shall be elected "by general elections in accordance with the Knesset Elections Law". In any event, if the Financing Law deviates at all from the principle of equality, it is but a minor deviation which is to be accepted so that other important goals are achieved, such as preventing the undue fragmentation that could result from too rigid an application of the equality principle in financing.

           

            With all due respect we must dismiss this argument because it does not answer adequately the Petitioner's main complaint: that limitation of the funding to parties represented in the present, sixth Knesset exclusively, is prejudicial to equality of opportunity for those new candidates lists that seek to take part in the campaign for the seventh Knesset elections but were not represented in the sixth Knesset.

 

            We do not accept the argument that section 4 of the Basic Law merely prescribes technical directions regarding the conduct of the elections. We are prepared to assume that the draftsmen of this section envisaged primarily the principle of "one man one vote" when they prescribed that the elections should be "equal". But we do not believe that this exhausts the full meaning of the programmatic provision in the Basic Law. Each of the adjectives "general, national, direct, relative" has two facets: they address both the right to elect and the right to be elected, and there is no reason why the word "equal" should not be given the same broad meaning. This is indicated by the order of the sections: first section 4 with its general significance, and then the more specific provisions in section 5 regarding the right to vote, and in section 6 - regarding the right to be elected. Were it otherwise, and the word "equal" referred only to the right to vote, it would have been more natural to include the idea of "one man one vote" in section 5.

           

            If the principle of equality in section 4 extends to the right to be elected, it must also find expression in an equality of opportunity for the various candidates lists that contend in the Knesset elections. For in our elections system the election candidates join in candidates lists that are submitted either by a party group of the outgoing Knesset or - in the case of a new list - by 750 voters (section 4 of the Knesset Elections Law [Consolidated Version], 1969). In this way the individual candidate aspires to achieve his set goal, and by the same token the will of the individual voter is realized in voting for the list.

           

            This interpretation of the equality provision in section 4 is consistent with the fundamental principle of the equality of all persons before the law. To be more precise, it applies as an emanation thereof in the specific area of the law of elections. But it can also exist independently without resting upon a provision in a written constitution that expressly declares the principle of the equality of all persons before the law. We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime. It is therefore only right - precisely in the borderline cases, where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught. This fortifies our construction of the equality provision in section 4.

           

            After all, what is the simple meaning of the words "equal elections"? What would we say, for example, about a statutory provision that allowed only one list of candidates? Could such elections be called "equal" because each voter still has one vote? Or, assuming the Financing Law determined that only the largest party was entitled to state funding - we would certainly regard that as a glaring violation of the equality principle in section 4. In other words, this section has the potency to prevent violations of equality also beyond the narrow confines of "one man one vote".

 

            Before we examine the Financing Law in light of our above-mentioned comments, we wish to note three preliminary points. First, a Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision (and it is stressed again that everything here said presupposes that the matter is justiciable before this court). Second, we are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. Thus, for example, in the Yeredor case[l] this court affirmed a decision to disqualify a list of candidates whose purpose was to undermine the existence of the State of Israel. Likewise, with regard to the matter of state funding for the elections: all agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality. It was not argued here that for this reason they are invalid. Third, and related to the preceding point, the issue before us - state financing of elections - is complicated and complex by its very nature and its legislative solution entails diverse practical considerations that require special expertise, which this court lacks.

           

            Without overlooking all this, we have concluded that the absolute denial of funds to new lists of party candidates substantially prejudices these lists' equality of opportunity, thus violating the equality principle in section 4 to an unjustifiable degree that goes beyond a minor deviation from that principle. We have already mentioned the provision in the Knesset Elections Law that allows any 750 voters to submit a candidates list. This opens the doors of the Knesset to new party groups. Such opportunity is one of the hallmarks of our democratic regime in general and our elections system in particular. It might be argued that the situation of a new list in the elections to the seventh Knesset is no worse than it was in the elections to the sixth Knesset, since such a list can still finance its election expenditures from private sources. We would answer that this is not the correct comparison to make; rather the current situation of such a list should be compared with the current situation of the existing party groups, and, if so, it is clear that the new list is at a real disadvantage compared to the others, because these are entitled to receive substantial sums from the state coffers to finance their expenditures whereas the new list is denied that right.

 

            In the Knesset debates on the Financing Law, the merits of a method of finance based on the balance of party power in the outgoing (sixth) Knesset was contrasted with a method based on the new party balance in the incoming (seventh) Knesset. The Knesset preferred the first method and one of its main reasons for so doing was the danger that short-lived lists would be formed because of the temptation to receive an advance on the funding allocation. This danger can be countered without causing the inequality that we have found to be unlawful, by promising a new list funding without an advance payment and only retrospectively after it has stood the test of the elections and gained at least one seat. All this on condition that the list has consented in advance to the audit by the State Comptroller in accordance with the Financing Law, and has met all the other conditions specified in the Law. It appears to us that provisions of this nature could still be added to the Financing Law without undue difficulty, without changing the existing provisions as regards the parties represented in the sixth Knesset and without overturning the entire situation, so as to avoid the apprehended inequality. It need hardly be said that in making this suggestion we in no way presume to encroach upon the sovereignty of the Knesset as the legislative authority.

           

            The Knesset accordingly has two courses from which to choose: it can reenact the financing provisions in the Financing Law, despite their inherent inequality, if the majority required under sections 4 and 46 of the Basic Law is mustered; or it can amend the Law so as to remove the inequality, and we have indicated above a possible way of doing so.

           

            We therefore make absolute the order nisi in the sense that the first Respondent, the Minister of Finance, is to act pursuant to section 6 of the Financing Law only if the financing provisions in the Law are reenacted with the required majority, or if the Law is amended so as to remove the inequality contained therein. We see no need to issue any order against the State Comptroller. Respondent no. 1 shall pay the Petitioner his costs in the petition.

           

            Judgment given on July 3, 1969

 

HCJFH 4128/00

 

 

Petitioners:                  1.         Director General of the Prime Minister’s Office

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

                                    6.         Prime Minister’s Advisor on the Status of Women

                                    7.         Government of Israel

                                   

                                                                        v.

 

Respondents:              1.         Anat Hoffman

                                    2.         Chaya Beckerman

3.         International Committee for Women of the Wall, Inc. by Miriam Benson

 

           

Attorney for the Petitioners:               Osnat Mendel, Adv.

Attorney for the Respondents:           Francis Raday, Adv.

 

The Supreme Court

[April 6, 2003]

 

Before President A. Barak,  Deputy President S. Levin, Justice T. Orr, Justice E. Mazza, Justice M. Cheshin, Justice T. Strasberg-Cohen, Justice J. Turkel, Justice D. Beinisch, Justice I. Englard

Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 of May 22, 2000 by E. Mazza, T. Strasberg-Cohen and D. Beinisch JJ.

 

A group of Jewish women (hereinafter: the Women of the Wall) sought to pray together in the Western Wall Plaza while wrapped in tallitot [prayer shawls] and reading the Torah. The possibility of praying at the Wall in accordance with their practice was prevented due to the violent objection of other worshippers at the site. The Women of the Wall petitioned the High Court of Justice, which ruled that the Government must establish appropriate arrangements and conditions to permit the petitioners to realize their right to worship in accordance with their custom in the Western Wall Plaza. In its petition for a Further hearing, the Government reiterated its argument – that was rejected in the judgment – according to which the Government fulfilled its obligation toward the Women of the Wall by adopting the recommendation that they be permitted to pray in the area of “Robinson’s Arch”.

The Supreme Court held:

1. (1)        The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection.

(2)        Accordingly, all steps must be taken to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties.

(3)        In order to try to strike a balance between the opposing demands in this matter, the Government must prepare the adjacent “Robinson’s Arch” site and make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer.

(4)        If the “Robinson’s Arch” site is not made suitable within twelve months, and having found no arrangement acceptable to both parties, it is the duty of the Government to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza.

B. (per J. Turkel J.):

(1)        In deciding to designate the “Robinson’s Arch” site for the prayer of the Women of the Wall, the Government acted within the framework of its discretion, and the Court should not intervene in that discretion. This solution should not be adopted “conditionally”, but rather as a permanent solution.

(2)        Adopting the said solution preserves the right of the Women of the Wall to access to the Western Wall Plaza itself, as long as they pray in accordance with the local custom while in the Western Wall Plaza. Thus, both their freedom of access to the Western Wall Plaza and their right to worship in their own manner is preserved.

C. (per E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ., dissenting):

(1)        The right of the Women of the Wall to pray according to their custom in the Western Wall Plaza was recognized without reservation in the prior judgments of the High Court of Justice in this matter, and there is no justification for restricting that right at present.

(2)        The position adopted by the Court in the proceedings at bar in regard to the need to prepare the “Robinson’s Arch” site as a prayer space that will serve the Women of the Wall essentially eviscerates their said right, and also upsets the appropriate balance between their right to worship in the Western Wall Plaza and the need to consider the feelings of other worshippers.

D. (per I. Englard J., dissenting):

(1)        The Palestine Order-in-Council (Holy Places), 1924, deprives the High Court of Justice of jurisdiction to consider matters concerning freedom of worship in the Holy Places.

(2)        The dispute between the petitioners and the Government in the case at bar concerns freedom of worship at the Holy Places and not freedom of access to them, inasmuch as no one is preventing the Women of the Wall from entering the Western Wall Plaza. Rather, the dispute is in regard to the possibility that they pray in their manner at that place. Therefore, the High Court of Justice does not have subject-matter jurisdiction over the dispute at bar.

(3)        All the laws of the Knesset are, by their very nature, secular norms, but there is no principled reason that a secular law not refer to a religious system.

(4)        The secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. The presumption is that terms borrowed from a religious system should be interpreted in accordance with that system.

(5)        The result is that terms employed in the Protection of the Holy Places Law that are borrowed from the religious world should first and foremost be interpreted in accordance with their religious significance.

(6)        Accordingly, the expression “conducting a religious ceremony that is not in accordance with the local custom” in reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, should be interpreted in accordance with its halakhic meaning, such that prayer in the Western Wall Plaza in the manner of the Women of the Wall falls within the scope of the prohibition established under the regulation.

(7)        Additionally, there is support for the opinion that, in view of the halakhic situation, the judgment under review in this Further Hearing that would allow the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others or an excessive violation of the feelings of others.

 

Judgment

 

Justice M. Cheshin:

1. Why was the First Temple destroyed? Because of three things that prevailed there: idolatry, immorality and bloodshed.

But why was the Second Temple destroyed, when they were occupied with Torah, mitzvoth and charity? Because baseless hatred prevailed. This teaches us that baseless hatred is of equal gravity with three sins: idolatry, immorality and bloodshed (TB Yoma 9b).

 

            So it was in besieged Jerusalem when Titus, the representative of distant Rome, battered its walls. The enemy beset from without, seeking to destroy and extinguish a nation and a kingdom, and the People of Israel within Jerusalem – the residents of Jerusalem and those who gathered in Jerusalem from all the corners of the land of Israel – raised their hands at one another. Beset from without and beset from within. That is the nature of strife. That is the nature of hatred. For strife and hatred destroy all that is good, they completely undermine human relations, they destroy man and beast, tree and field. Such is hatred, such is jealousy, such is zealotry, and zealotry stands above them all.

            The Western Wall is a remnant of our Second Temple, and now those who fight amongst themselves fight over it. Can we not learn from the history of our tortured nation?

Background

2.         Our concern this time is a Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 245. In that judgment, the High Court of Justice decided – per Justice Eliahu Mazza, Justices Tova Strasberg-Cohen and Dorit Beinisch concurring – to order the Government “to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.” The Petitioners before the Court – the Government of the State of Israel and those acting on its behalf (hereinafter: the Government of Israel or the Government) – are of the opinion that they should not be ordered to act as ordered by the Court, inasmuch as immediately prior to the rendering of the said judgment the required arrangements and conditions had been established as required by the Court’s decision. In its judgment, the Court rejected this argument, and the Government now asks that we find – in a Further Hearing – that it indeed fulfilled what it was required to do.

3.         The Protection of the Holy Places Law, 5727-1967 (the Protection Law) – a law enacted some two weeks after the end of the Six Day War – instructs us in decisive, unambiguous language to protect the Holy Places against any desecration or violation, to protect the freedom of access of the various religious communities to the places they hold sacred, and prohibits the affront of feelings towards those places:

Protection of Holy Places

1.The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

The very same language, word for word, is conveyed to us in Basic Law: Jerusalem, Capital of Israel (the Jerusalem Law). The Protection Law – and later, the Jerusalem Law as well – was intended to change the status quo ante from stem to stern. For until the enactment of the Protection Law – thus during the Mandate period and thus after the establishment of the State, when the Western Wall and other places holy to the Jews were under the rule of the Hashemite Kingdom of Jordan – there were limitations, often severe and disgraceful limitations, upon the rights of Jews to their holy places. But from that point, the limitations were removed and the barriers were lifted.

            The Protection Law was not created for the Jews alone, or perhaps we should say that it was created primarily not for the Jews. It was created for the Moslems, it was created for the Christians, it was created for the members of every other faith that have places that are sacred for them in Israel. The rights of all of these were established in the law, and not just any law, but a Basic Law. The status of the Jews in regard to the places they hold sacred was established like the status of all members of other faiths for the places sacred to them, with complete equality and without discrimination – each believer and the places he holds sacred.

            We live among our people, and to date we have not heard a serious complaint of any violation incurred by the members of any other faith in regard to the places they hold sacred. The State protects their rights with utmost care, and there is no breaching and no wailing [Psalms 144:14]. Yet see how wondrous, or perhaps not so wondrous: we Jews are the ones dissatisfied by what has been done and by what has not been done in the places sacred to us – at times from here and at times from there. The matter before us in this Further Hearing is one of those disputes that have arisen among the Jews themselves.

4.         This is the fourth time that we are addressing the subject before us, and we would express the hope that it will be the last. The first time was in HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (the First Judgment or the First Petition). The second time was in HCJ FH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al. (unpublished), in which the petitioners in the First Petition requested a Further Hearing on the First Judgment (the Further Hearing). The third time was the judgment that we are now addressing in this Further Hearing, that is, HCJ 3385/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (the Second Judgment or the Second Petition). And now we meet for the fourth time.

            In order to understand the disagreements and the arguments of the parties, we have no alternative but to review – if only in brief – the proceedings to date. Indeed, the aforementioned proceedings were like necklace beads strung one beside another to form a single strand, and before we string another bead, we should study and understand the nature of that strand.

 

The Original Events and the First Petition

5.         The matter began on the Rosh Hodesh [beginning of the new month of the Jewish calendar] of the month of Tevet 5749 (Dec. 9, 1988), when a group of Jewish women, residents of Jerusalem, tried to pray together in the Western Wall Plaza. It is the custom of those women to wrap themselves in tallitot [prayer shawls] in prayer, and to read aloud from a Torah scroll, as is customary for the reading of the Torah. Thus the women sought to do facing the Western Wall every month and on special occasions. That Rosh Hodesh Tevet, the other male and female worshippers at the Wall were unwilling to permit the women to pray as they desired, and from the moment they began to pray, those other worshippers met them with violence. Prior to Rosh Hodesh Adar I, having learned from their experience, the women informed the police in advance of their intention to pray at the Wall in accordance with their custom, but to no avail. In the course of prayer, other women worshippers – soon joined by male worshipers – began to interrupt the group of women, to curse tem, shower them with insults, and even to grab the prayer books from their hands, throw objects at them and beat them.

6.         Following that event, the women met with the late Rabbi Getz, who was the rabbi in charge of the Western Wall, and prior to the Fast of Esther of that year an arrangement was concluded and the women agreed to pray at the Wall without tallitot and without Torah scrolls. For his part, Rabbi Getz assumed the responsibility of seeing to the safety of those women and to ensure their right to pray. The arrangement did not succeed, as Rabbi Getz was unable to keep his promise. The prayer on the Fast of Esther became particularly stormy, and ultimately the police had to break up a violent, rioting crowd by means of tear-gas canisters.

7.         On the day following the grim events of the Fast of Esther, on 14 Adar II 5749, March 21, 1989, those women submitted their first petition (HCJ 257/89). Thus began the first affair.

8.         The opponents of the prayer of those women continued to act aggressively, but the women did not relent. They continued to arrive at the Wall on Rosh Hodesh and pray there, but the absolute opposition displayed by the other worshippers at the site – and the rabbi in charge of the Western Wall Plaza among them  -- did not dissipate. The exchanges between the warring camps did not mince words – orally and in writing – and even violence showed its ugly face. The history of the struggle leading up to the judgment on the First Petition is described in detail by Deputy President Elon in the First Judgment, at pp. 277 – 292.

9.         Towards the end of 1989, the group of women gained encouragement and support from another group of Jewish women, residents of the United States (the Second Group). These women established the “International Committee for Women of the Wall” – from that point on, the First Group and the Second Group have been referred to as the Women of the Wall – and also tried to pray at the Wall from time to time. The worship services of the Second Group was – and is – conducted in accordance with Orthodox halakha. Inasmuch as that group comprises women from various streams of Judaism, and in order for them to unite as a single group, the group chose to follow the strictest approach to prayer from among the various schools. These women pray together as individuals, that is, they do not view themselves as constituting a “minyan” [prayer quorum], and therefore refrain from reciting those prayers that are permitted only in a minyan, such as the kaddish prayer. They wrap themselves in tallitot and read from a Torah scroll – as is the practice of the women of the First Group – but at the same time, they take care not to follow the Torah reading practices that are permitted only in a minyan, such as reciting the blessings and being called to the Torah.

10.       The women of the Second Group wished to pray at the Wall – together, as is their custom – on Rosh Hodesh Kislev 5750, but when they arrived at the Western Wall Plaza, wrapped in tallitot and carrying a Torah, they were prevented from entering the women’s prayer section. This incident led to an exchange of letters with the representatives of the Ministry of Religious Affairs, and when it became clear that this correspondence would not bear fruit, this Second Group also petitioned the High Court of Justice. This petition – submitted to the Court on June 3, 1990 – was the petition in 2410/90 Susan Alter et al. v. Minister of Religious Affairs et al. The proceedings in that petition were joined with the proceedings in the First Petition, and the two petitions together composed the first affair. For the sake of completeness we would also add that the groups composing the Women of the Wall are of various hues – like the other groups we have become accustomed to seeing in Judaism – but for our purposes they are all united in the demand that they be permitted to pray together at the Wall, wrapped in tallitot and reading the Torah aloud, just as men wrap themselves in tallitot and read the Torah aloud without fear.

11.       To complete the picture, we would also add the following. Under the provisions of sec. 4 of the Protection Law, the Minister of Religious Affairs may, after consulting with, or upon the proposal of, representatives of the religious communities concerned, and with the consent of the Minister of Justice, make regulations as to any matter relating to the implementation of that law. The Minister of Religious Affairs has exercised that authority on several occasions. In regard to the Western Wall (and other Jewish Holy Places), he promulgated regulations called the Regulations for the Protection of Holy Places to the Jews, 5741-1981 (the Protection Regulations). On Dec. 31, 1989, after the First Petition was submitted to the Court – that is the first petition of the Women of the Wall – and before the Second Petition was submitted, the Minister published an amendment to those regulations – after consulting with the Chief Rabbis of Israel – adding subsection (1a) to regulation 2, as follows:

                        Prohibited Conduct

                        2.         (a)        In the area of the Holy Places, … the following is prohibited:

                                    (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place;

…

            We will return to examine this subsection further on, but for the meantime we would only add that it would appear that is was on the basis of this subsection (and reg. 4 of the Regulations) that the rabbi in charge of the Western Wall Plaza sought to prohibit the entrance of the Women of the Wall to the women’s prayer section of the Plaza.

 

The Judgment on the First Petition

12.       The petitions of the Women of the Wall – that in HCJ 257/89 and that in HCJ 2410/90 – came before a panel of the High Court of Justice composed of President Meir Shamgar, Deputy President Menachem Elon, and Justice Shlomo Levin. After the passage of no small amount of time during which the parties were unable to come to terms, the Court issued its decision. The judgment was delivered on Jan. 26, 1994, and the three justices wrote three separate opinions. All three agreed “that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way”, that “the freedom of worship of the Petitioners stands” (per Elon D.P., ibid., at p. 350), and that the prayers of the Women of the Wall “are not halakhically flawed from a formal perspective” (per Elon D.P., ibid., at p. 321). However, differences of opinion arose among the justices on the question of whether the Women of the Wall could, in practice, pray in accordance with their custom in the Western Wall Plaza, and thereby realize their fundamental right to freedom of worship.

13.       Justice Elon was of the opinion – in a decision that is worthy of being called monumental and encyclopedic – that the Women of the Wall do not have the right to pray in the Western Wall Plaza in accordance with their custom, and he constructs his decision as follows.  First, the Deputy President holds that the prayer area beside the Western Wall is a synagogue, and not merely a synagogue, but “the holiest synagogue in the halakhic and Jewish world” (ibid., p. 318). Elsewhere, the Deputy President holds that the prayer area beside the Western Wall “must be treated like a synagogue and even more so” (ibid., p. 319). Second, the manner of prayer of the Women of the Wall, although not contrary to halakha, is a manner of prayer that is “unacceptable”, that is to say, unacceptable in an Orthodox synagogue, in that it is contrary to the manner of prayer in an Orthodox synagogue. In conclusion: the manner of prayer of the Women of the Wall is, in the opinion of the Deputy President, a manner of prayer that stands in contradiction of the “local custom”.

            In this regard, the Deputy President reminds us of the provision of reg. 2(a) (1a) of the Protection Regulations – a provision that prohibits conducting a religious ceremony “that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – and he further holds that this provision “expresses the principle of maintaining the status quo – ‘local custom’ and the status quo are one and the same” (ibid., p. 344). The Deputy President further states “that prayer conducted in the manner of the Petitioners – prayer that … violates ‘local custom’ – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall” (ibid., p. 345). Indeed (ibid., p. 329):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            (And further see p. 350). The necessary conclusion is that:

… Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place …

Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Judaism’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to (ibid., p. 350, emphasis original – M.C.).

            This is even the case in regard to the serious fear of a possible breach of public order. The freedom of worship acquired by the Women of the Wall must retreat before the fierce opposition of the majority of worshippers at the site – opposition deriving from the severe affront that will be felt by those worshippers if the Women of the Wall are granted their request and permitted to pray in accordance with their custom in the Western Wall Plaza. In the words of Justice Elon (ibid., pp. 349-350):

It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result in extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities … (emphasis original – M.C.).

            Deputy President Elon was thus of the opinion that the petition of the Women of the Wall should be denied in its entirety, and that they should not be permitted to pray according to their custom in the Western Wall Plaza.

14.       On the other side – diametrically opposed to the Deputy President – stood Justice Levin. As opposed to Deputy President Elon, Justice Levin was of the opinion that the Women of the Wall had a right to pray in the Western Wall Plaza in accordance with their custom. Moreover, after four years had passed since the events that gave rise to the petitions, it was time, in his opinion, to decide the matter and grant the petitioners’ request.

15.       First of all, Justice Levin held that the Protection Law is a secular law, and therefore the petition should not be decided solely on the basis of halakhic considerations. This statement by Justice Levin conspicuously contradicts the opinion of Deputy President Elon, who interpreted and effected the Protection Law in accordance with Jewish halakha, and in reliance upon numerous Jewish-law sources. In the opinion of Justice Levin, the Western Wall site is sacred to the Jewish People both as a religious site and place of prayer, and as a place bearing national significance, a symbol of the Jewish kingdom, and he was of the opinion that it was in accordance with that approach that the manner of conduct in its vicinity and the rights of Jews to act there must be interpreted. Moreover, the Western Wall is not a synagogue, and therefore it is not subject to the halakhic rules that apply to a synagogue. The test that should be applied in regard to permissible activity in the Western Wall Plaza should be based upon “the common denominator of all the groups and people who visit the Western Wall site and the Plaza in good faith, whether for prayer or for other legitimate purposes” (p. 357).

            As for the concept of “local custom” in accordance with reg. 2(a) (1a) of the Protection Regulations, Justice Levin expressed his opinion that:

… in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            However, Justice Levin was also of the opinion that restrictions may be imposed upon certain activities at the Western Wall site (ibid., p. 357):

Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

            The practical result of this is (loc. cit.):

… that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its Plaza may fully realize their rights without unnecessarily violating the feelings of others.

            Inasmuch as four years had passed since the events that gave rise to the petitions, it no longer seemed appropriate to decide – after such a long period – “whether or not the conduct of any of the Petitioners was in good faith at the time” (loc. cit.), and therefore Justice Levin decided “under these circumstances” that:

I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide.

            Nonetheless, being aware of the difficulties that might confront the Government in putting the decision into practice, Justice Levin further decided that the execution of the decision should be postponed. In his words (p. 358):

In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

16.       The third opinion – the second in the order published in IsrSC – was given by President Shamgar. At the outset, President Shamgar addresses the exalted status of the Western Wall – both in the religious tradition and in the national tradition of the Jewish People – stating (ibid., p. 353):

The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering           and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it (emphasis original – M.C.).

Further on, President Shamgar goes on to speak of tolerance and patience (ibid., p. 354):

… we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion … that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

Tolerance and patience “are not unidirectional norms, but rather they are encompassing and multidirectional” (ibid., p. 354), and therefore:

… tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            Following this preface, President Shamgar informs us: “All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible” (ibid., p. 354), and in this context he adds that it would be preferable if the resolution of disputes be reached through dialogue. In his words (ibid., pp. 354-355):

… it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

17.       On the merits, one needn’t dig too deeply to discover that President Shamgar was of the opinion that the petitioners had a right to pray according to their custom in the Western Wall Plaza. Like Deputy President Elon, President Shamgar was also of the opinion that we must seek and find “a common denominator for all Jews, whomever they may be” (ibid., p. 355). However, unlike Deputy President Elon, in the opinion of President Shamgar (ibid., p. 355):

… the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount (emphasis original – M.C.).

            President Shamgar agrees that “in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots”, but he adds, “I am not convinced that the Respondents are not exaggerating the conflicts and differences.” He then continues to express his opinion in no uncertain terms in regard to the right of the Women of the Wall. In his words (ibid., p. 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

18.       President Shamgar is of the opinion that it would be appropriate to attempt to continue to employ means that might lead to an arrangement acceptable to all:

I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            And for this reason, he is of the opinion that a decision should not be rendered immediately (ibid., pp. 355-356):

It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

19.       If we closely examine the opinions of the three justices, we discover that they are divided into a majority and a minority for various reasons. In order to understand this correctly, we will now take a small step backwards. We will examine the petitions of the Women of the Wall and then return to the opinions of the justices.

            The primary prayer of the petitioners in HCJ 257/89 (the First Group) was directed against the Director of the Western Wall, the Ministry of Religious Affairs, and the Chief Rabbis, demanding that they show cause:

Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing tallitot during their prayers.

            As for the Second Group – the Women of the Wall who petitioned in HCJ 2410/90 – their primary prayer was this:

A petition for an order against the Respondents … forbidding them to prevent Petitioners nos. 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading the Torah, and requiring them to permit the Petitioners to bring a Torah scroll into the Western Wall Plaza, and ensure such prayer by the Petitioners without interference or harm.

            These petitions were denied by a majority composed of President Shamgar and Deputy President Elon, but while the Deputy President’s reasons came from the east, the President brought his reasons from the west.

20.       On the merits, as noted, Deputy President Elon was of the opinion that the Women of the Wall did not have a right to pray according to their custom at the Western Wall, and he therefore decided that the petitions should be denied. President Shamgar was also of the opinion that the petitions should be denied, but unlike the Deputy President, it was his opinion that the time was not yet ripe for a judicial decision, and he therefore decided to deny them. In the opinion of President Shamgar, the Petitioners’ petitions were premature, as the parties had not exhausted all of the avenues for resolving the disputes amicably – rather than by a decision of the Court – and it would not, therefore, be appropriate to decide the matter and rule upon the rights of the parties at law. The Deputy President from here and the President from there – each for his own reasons – arrived at a joint operative conclusion that the petitions should be denied and the orders nisi quashed. But the reasons for their decisions were diametrically opposed. In this regard, Justice Levin was in the minority, as his opinion was that an order absolute should be granted in a particular form.

            Thus far in the matter of the operative relief.

21.       The disagreements on the operative decision were unlike the disagreements on the merits in regard to the right of the Women of the Wall to pray at the Western Wall in accordance with their custom. In this regard, the division among the opinions of the justices was different than in regard to the operative decision.

            The opinion of the Deputy President, Justice Elon, was, as stated, that the Women of the Wall did not have a right to pray at the Western Wall in accordance with their custom. As opposed to this, Justice Levin was of the opinion that, subject to certain provisos, the Women of the Wall had a right to pray in good faith at the Western Wall in accordance with their custom, while wearing tallitot and carrying a Torah scroll. In this regard, President Shamgar concurred with Justice Levin that the Women of the Wall had a right to pray at the Western Wall in good faith and in accordance with their custom. Indeed, as we saw, President Shamgar was of the opinion that “[T]he legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (at p. 355).  At the same time, while President Shamgar and Justice Levin agreed on the merits, they disagreed as to the operative relief, and for reasons that we explained above, President Shamgar was of the opinion that the order nisi should be quashed and the petitions denied.

22.       The result of the First Petition was thus that according to the majority, the Women of the Wall had a right to pray in accordance with their custom at the Western Wall, while by a different majority, their petition was denied.

 

The Proceedings after the Judgment in the First Petition and the submission of the Second Petition

23.       President Shamgar was of the opinion that the possibilities for reaching an agreed solution had not been exhausted, and in this regard he accompanied Justice Levin part of the way (see para. 15, above, in regard to the operative relief that Justice Levin thought should be granted to the petitioners). President Shamgar did not set a time for examining the possibilities for reaching an agreed solution, but he expressly stated the parameters for striking a balance. We quoted his opinion above (para. 17), and we will reiterate it here:

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            In other words, the Women of the Wall have the fundamental right to pray to God in accordance with their custom – whether in their own place or before the Western Wall – “as long as it will not constitute a substantial interference with the prayers of others.”

24.       In the judgment that is the subject of the Further Hearing – the judgment in the Second Petition – the Court surveyed the events following the judgment on the First Petition at length (see pp. 352 – 361 of the judgment in the Second Petition), and we will therefore be brief.

25.       Two months passed after the rendering of the First Judgment, and on May 17, 1994, pursuant to the recommendation of President Shamgar, the Government of Israel decided to appoint a committee that was instructed as follows:

… to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site.

            The members of the Committee were the Director General of the Prime Minister’s Office (Chair), and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior, and the Ministry of Police, and the Legal Advisor of the Prime Minister’s Office. The Prime Minister’s Advisor on the Status of Women was appointed to the committee as an observer (the Directors General Committee). The Government allotted six months for the Committee to present its recommendations.

 26.      When they saw that the First Judgment did not grant them the relief they had hoped for, the Women of the Wall petitioned the Supreme Court to grant a Further Hearing on the First Judgment (HCJFH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al., unpublished). The Deputy President, Justice Aharon Barak, decided to deny the request, grounding his decision upon the Government’s decision. In his decision, the Deputy President wrote:

This petition must be denied. My opinion is grounded upon the view expressed by President Shamgar in his opinion in the judgement that is the subject of this request. In his opinion, the President noted that, at this time, he would not decide upon the petition. Instead, he recommended that the Government consider the appointment of a committee that would examine the matter in depth in order to arrive at a solution that would ensure freedom of access to the Wall and minimize the violation of the feelings of the worshippers.

            The Deputy President quotes the Government’s decision, and goes on to say:

On the basis of this sequence of events, it would appear to me that we should wait for the Committee’s recommendation (which is supposed to be given within six months of the establishing of the Committee). If those recommendations are unacceptable to the Petitioners, they may reapply to the Court (sitting as High Court of Justice). In his opinion, the President noted in this regard that “[T]he gates of this Court are always open, but as stated, the other available options should first be exhausted”.

27.       Let us return to the Committee. The six months allocated to the Committee by the Government passed. Then a further six months passed (pursuant to an extension decided upon by the Government, and the Committee’s recommendations were still delayed in coming. Seeing this, the Women of the Wall petitioned the High Court of Justice, this time presenting a united front (HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et. al.).

            This Second Petition added nothing new to the First Petition. The request of the Women of the Wall was merely that the Government establish arrangements that would permit them to pray in the prayer area at the Western Wall “in women’s prayer groups, together with other Jewish women, while they are wearing tallitot and reading aloud from the Torah”, in accordance with the First Judgment (see the Second Judgment, IsrSC 54 (2) 345, 347). In other words, the Second Petition was, in essence, a petition to force the Government to do what the Court had ordered that it do in the First Petition.

28.       Not long after the submission of the Second Petition, on July 2, 1995, the Government decided to extend the time allocated to the Committee for presenting its recommendations by an additional six months.

            Ultimately, on April 2, 1996, the Committee presented its recommendations to the Government. And this is the core of the Committee’s recommendation:

In order to achieve the balance demanded of the Committee in the Government’s decision between freedom of access to the Wall and limiting the violation of the feelings of the worshippers, the Committee has not found the time to be ripe for permitting prayer in the Western Wall Plaza itself that differs from the traditional prayer accepted there.

            In arriving at its decision, the Committee gave significant weight to the views of the Commissioner of Police and the Police Commander of the Jerusalem District who expressed their opinion in regard to the consequences of the prayer of the Women of the Wall for public order. They were of the opinion that an arrangement for the allocation of prayer times would not prevent harm to public order. The Committee further examined four alternative prayer sites in the vicinity of the Wall: the site beneath “Robinson’s Arch”, the area in front of the Hulda Gates, the southeastern corner of the Temple Mount wall, and the “Little Western Wall”. Of the four alternatives, the Committee was of the opinion that the southeastern corner was the most appropriate.

29.       When the recommendations of the Directors General Committee were presented before it, the Government decided to appoint a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government.” That decision was made on April 21, 1996, but because elections for the fourteenth Knesset were held shortly thereafter, the ministerial committee was automatically dispersed.

30.       Another year passed until, on June 2, 1997, and after being presented with the recommendations of the Governors General Committee, the Ministerial Committee for Jerusalem decided to adopt the recommendations. This was the decision of the Ministerial Committee:

A.To record the notice of the Prime Minister according to which the Government of Israel recognizes the right to freedom of worship and religion of every person, including the Petitioners.

B.To find that in reliance upon the evaluation of the Israel Police, the prayers of the Petitioners, in accordance with their custom, cannot be permitted in the Western Wall Plaza, and that in accordance with the evaluation of the other security services that was recently presented, a change of the status quo in regard to prayer arrangements in the alternative suggested sites may lead to a danger to public safety.

C.In accordance with the aforesaid, to maintain the existing situation unchanged for the present. To act to examine the possibility of arranging an appropriate alternative prayer site, and to request a postponement of the Court proceedings for an additional three months for the purpose of examining the situation of the proposed sites from the security standpoint.

D.The evaluation of the security agencies will be brought for further discussion by the Ministerial Committee for Jerusalem, and for a decision on the matter.

31.       The Government did not relent in its attempts to find an agreed solution for the prayers of the Women of the Wall. A committee was established at that time whose assignment was to develop recommendations in regard to the matter of conversion to Judaism (the Neeman Committee), and the Government proposed that that committee address the issue of the Women of the Wall. The Women of the Wall initially rejected this proposal, but after discussion in the Court – in the course of the proceedings in the Second Petition – the matter was transferred to the examination of the Neeman Committee.

32.       The members of the Neeman Committee were – in addition to the Chair, the then Minister of Finance Yaakov Neeman – Prof. Dov Frimer, Adv.; Rabbi Nahum Rabinowitz; the Head of the Ma’aleh Adumim Yeshiva; Rabbi Uri Regev,  representing the Reform Movement; and Rabbi Ehud Bandel (replacing Rabbi Reuven Hammer), representing the Conservative Movement. The representatives of the parties were invited to the Committee’s meetings, and the representatives of other relevant bodies also participated, among them: the Antiquities Authority, the Ministry of Religious Affairs, the Ministries of Justice and Internal Security, the Office of the Minister for Diaspora Affairs, the Israel Police, and others. The Committee held a number of meetings, and in the course of its deliberations it also visited five possible prayer sites: the area of the parking lot adjacent to the entrance to the Western Wall Plaza, beside the staircase; the “Southern Wall” area; the women’s prayer section in the Western Wall Plaza; an area at the back of the Western Wall Plaza known as the “Flag Plaza”; and the “Robinson’s Arch” area.

            On Sept. 23, 1998, the Committee presented the report that it had prepared, examining the advantages and disadvantages of each of the proposed alternatives. At the end of its report, the Committee reached the conclusion that conducting prayer at the “Robinson’s Arch” site is “the most practical solution for the needs and demands of the Women of the Wall. That is the case after weighing the advantages and disadvantages of each of the above alternatives. … [and] weighing and balancing the need to find an appropriate prayer site that would meet the needs and demands of the Women of the Wall, and the important principle requiring the avoiding of violation of the feelings of the worshippers at the Western Wall Plaza and not violating the local custom”. These conclusions were adopted over the opposition of Rabbi Uri Regev.

 

The Second Judgment

33.       The recommendation of the Neeman Committee was not acceptable to the Women of the Wall. They were of the opinion that the recommendation did not fall within President Shamgar’s balance parameters, and they therefore maintained their position, demanding their right to pray in accordance with their custom in the Western Wall Plaza. That is also what they argued before the Court in the Second Petition. The Government’s position was, needless to say, different and opposed. In the Government’s opinion, President Shamgar had said nothing more than that a balance must be struck between the right of access to the Wall, and harm to the feelings and well-being of the public. The Government further argued that that balance had been appropriately preserved by the Neeman Committee, and that the Committee’s recommendation reasonably balanced the interests pulling to either side. The Court was therefore required to decide the issue of whether the decisions of the Government and the committees that had acted on its behalf were consistent with the decision rendered in the First Judgment.

34.       The judgment in the Second Petition was drafted by Justice Mazza, with the concurrence of Justices Strasberg-Cohen and Beinisch. The judgment reviewed the chain of events leading up to it, and in examining the activity of the committees in relation to the balancing parameters set down by President Shamgar, instructed us as follows (ibid., 364-365):

… the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

The committees that followed the Directors General Committee – the Ministerial Committee for Jerusalem, as well as the Neeman Committee – pursued the same path. The common denominator of the recommendations that were presented by all of the committees that addressed the matter was expressed by the conclusion that the balance between the Petitioners’ right to pray in the Western Wall Plaza, and the harm that the Petitioners’ prayer will cause to others and the opposition that will be aroused can only be found in removing the Petitioners from the Western Wall Plaza and forcing them to suffice with this or that alternative prayer venue. Needless to say that these recommendations too – like the recommendation of the Directors General Committee – deviated from the balancing formula in the First Judgment.

It would not be superfluous to note that even in explaining the reasons for their conclusions, the honorable committees drifted to views that were rejected by the majority of the justices in the First Judgment. Thus, for example, in arriving at its positon, the Directors General Committee ascribed weight to the verdict of the Chief Rabbis that “there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”. That position, sanctifying the “status quo”, was supported in the First Judgment only by the Deputy President, Justice Elon, but was entirely rejected by Shamgar P. and Levin J. This comment is equally applicable to the balancing formula followed by the Neeman Committee, which also granted weight to the consideration of “not violating the local custom”. Particularly perplexing was the comment of the Directors General Committee that “the paths of peace require mutual sacrifices of both sides”, inasmuch as by its recommendation that the Petitioners be removed entirely from the Western Wall Plaza, the Committee expressed the opinion that only the Petitioners are required – for the sake of peace – to sacrifice everything, whereas the groups opposing the presence of the Petitioners – the fear of whose violent reaction led the Committee to seek a different solution from that it was asked to recommend – are neither asked nor expected to make any sacrifice.

            As for the parameters of the balance decided upon (by majority) in the First Judgment, Justice Mazza adds as follows (ibid., 366):

… the First Judgment recognized the right in principle of the Petitioners to conduct prayers in accordance with their custom in the prayer plaza beside the Western Wall, and [] the committees that addressed the subject of the petition following the First Judgment did not do what they were intended to do in accordance with the instructions of that judgment …

            As for the fear of the violent reactions of the opponents of the prayer of the Women of the Wall, the Court further held that a balance that abolishes the right of the Women of the Wall by reason of public safety deviates from the balance parameters established in President Shamgar’s opinion (ibid., 365):

We are of the opinion that in arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

35.       This, therefore, was the decision in the Second Judgment now before us in a Further Hearing: Having found that the “balances” effected by the various committees are incompatible with the instructions of the First Judgment, the Court ruled (ibid., 367) to issue an order absolute:

[I]nstructing the Government to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.

            This time as well, as in the first case, the Court refrained from deciding upon the details of the appropriate arrangement, but Justice Mazza found it appropriate to emphasize that “the required decision [in the matter of the arrangement] is only in regard to the concrete conditions in order to enable the Petitioners to pray in accordance with their custom in the Western Wall Plaza, such as the place and times in which they may do that, while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements” (ibid., at 367).

            The Court further decided to delay the execution of the judgment, setting a period of six months – i.e., until the end of November 2000 – for the establishing of the necessary arrangements.

 

The Petition for a Further Hearing

36.       The Second Judgment was issued on May 22, 2000, and two-weeks later – on June 6, 2000 – the Government and those acting on its behalf (the Director General of the Prime Minister’s Office, and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior and the Ministry of Police, the Legal Advisor of the Prime Minister’s Office, and the Prime Minister’s Advisor on the Status of Women) petitioned for a Further Hearing in the matter of the judgment. President Barak granted the request on July 13, and thereafter, the panel appointed for the Further Hearing decided to further delay the execution of the order issued by the Court in the Second Judgment until the rendering of judgment in the Further Hearing.

37.       We will now take a brief recess in order to complete the picture. While the proceedings in the Further Hearing were pending, two organizations – the “Kolot Hakotel” Association and the “Am Echad” Association – requested to join the petition as additional petitioners – public petitioners – together with the Government. These organizations were not party to the High Court proceedings up to this point, but now requested to join the proceedings in the Further Hearing after they had begun. The “Kolot Hakotel” Association presented itself as an association whose members are “religious and traditional women who see preserving and employing traditional prayer at the Western Wall, as the last remnant of the place of the Temple, to be a supreme value in the continuity of Jewish life and Jewish tradition”. As for the “Am Echad” Association, it presented itself as a religious movement whose members are drawn from “a broad spectrum of ‘streams’ within Orthodox Judaism in Israel and the Diaspora.” This organization expressed “great concern in regard to change or deviation from the accepted prayer of generation upon generation at the Western Wall, in which all of world Jewry is a partner”, and therefore, it explained, it requests to further argue before the Court alongside the Government.

38.       After examining the requests of the two organizations and their written summary pleadings – which were submitted after the submission of extensive summary pleadings by the State Attorney’s Office – we reached the conclusion that those requests added nothing to the detailed, broad scope of the arguments presented by the State Attorney’s Office. For that reason, we decided, on Nov. 19, 2000, to deny the requests of the organizations to join the proceedings as additional petitioners in the Further Hearing.

            Indeed, it is decided law that when an entity with a general public interest requests to join as a party to proceedings before the High Court of Justice, we carefully consider “if that joinder would contribute to the proper, full examination of the dispute” (HCJ 852/86 Aloni v. Minister of Justice, IsrSC 41 (2) 1, 32, and also see p. 31). If such is the case in regard to proceedings before the High Court of Justice, then it applies all the more so in regard proceedings in a Further Hearing. Thus, having found that the organizations did not present arguments that are not argued by the Government, we decided to deny the requests.

            Following this brief recess, let us now return to the matter of the Further Hearing.

39.       The State Attorney’s Office, on behalf of the Government and its subsidiaries, reiterated the argument that it has presented since the outset of the proceedings in the matter of the Women of the Wall, that the Women of the Wall did not acquire a right to pray in accordance with their custom before the Wall and in the Wall Plaza, adding that it disagrees with the Court’s finding in the Second Judgment that the First Judgment established the law. The State Attorney’s Office finds support for this view in the statement of President Shamgar – in the First Judgment, ibid., 355-356 – that “at this stage, we should not decide the matter before us”, and in the statement of the Deputy President, Justice Barak, who, in denying the request of the Women of the Wall for a Further Hearing on the First Judgment, held that “[i]n his opinion [in the First Judgment], the President [Shamgar] noted that, at his time, he would not decide upon the petition” (para. 26, above).

40.       I find it hard to accept the argument of the State Attorney’s Office that the matter of the right of the Women of the Wall was not decided in the First Petition. We quoted the statements of the justices in the First Judgment at length, and in our opinion, the Court decided upon the right of the Women of the Wall to pray in accordance with their custom at the Western Wall (see the statements that we quoted above in paras. 15-18 and para 21). We would further recall that among his other statements in the First Judgment, the President explicitly held that “we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (ibid., 355). In speaking of “the said laws”, the President was referring to the provisions of sec. 1 of the Protection Law and its identical parallel in sec. 3 of Basic Law: Jerusalem, Capital of Israel, according to which: “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places”.

            President Shamgar went on to speak of these two laws further on in his opinion, in stating that the parties should “try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence” (ibid., 355). President Shamgar addressed that “declaratory principle” at the beginning of his opinion (ibid., 353), holding that the fundamental provision that we addressed in the two relevant laws give “statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions” (ibid., 353). Can there be any doubt that President Shamgar recognized the right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza? The question begs the answer.

            President Shamgar’s holding in regard to the right of the Women of the Wall to pray according to their custom at the Western Wall is clarified and explained further on, against the background of his recommendation that the Government “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., 356). A person naively reading this statement would learn that the Women of the Wall held a right to pray in their manner at the Western Wall, and that the committee that President recommended appointing was intended only to find a solution that would “ensure”[1] freedom of access – in his words – while limiting the affront to the feelings of the worshippers. The term “ensure” freedom of access is not ambiguous. It has but one meaning, which is that the Women of the Wall have a right to pray at the Wall in accordance with their custom. That right, together with the need to limit affront to the feelings of the worshippers – both the right and the need – must coexist.

41.       When the Court examined the actions of the Government and its committees against the balance parameters that the Court had established in the First Judgment, it found that the actions were one thing and the balance parameters were another, that is, the actions did not fall within the parameters. The Government’s prayer, therefore, is that we turn back the clock and reverse not only the Second Judgment but the First Judgment as well. In any case, the opinion of the majority in the First Judgment is clear and requires no interpretation.

42.       In the course of the proceedings before us, we tried to bring the sides closer; we tried but did not succeed. The Government reiterated the proposal of the Neeman Committee that the Women of the Wall pray in accordance with their custom at the “Robinson’s Arch” site. In the words of the Government in its pleadings:

The Respondents will argue that prayer at “Robinson’s Arch” realizes both conditions established by President Shamgar, viz., the ensuring of the right of access to the Wall and limiting the affront to the feelings of the worshippers. The right of access to the Wall will be preserved (as will freedom of worship), inasmuch as Robinson’s Arch is, as stated, a part of the Wall, and prayer there will avoid friction and prevent affront to those who pray at the Wall in the long-customary manner.

…

The solution is respectable, fair and immediately executable. It would be proper for the honorable Court to issue a ruling in the matter of the prayer arrangements at the Holy Places that will allow the necessary flexibility in order to ensure freedom of access and worship, on the one hand, and the prevention of friction and violence, on the other.

            As we are all aware, “Robinson’s Arch” is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall: with a capital “T”. We would further add that, over the last few years, the site adjacent to “Robinson’s Arch” – a site under the auspices of the Antiquities Authority – has occasionally served as a prayer space for the Conservative Movement. The question before us was, therefore, whether the “Robinson’s Arch” site would be suitable for the prayer of the Women of the Wall.

43.       The justices of the First Judgment examined the Neeman Committee’s proposal in regard to “Robinson’s Arch”, and their opinion was that the site was not suitable to serve as an appropriate alternative prayer space to the Western Wall in that it could not realize the balance parameters enunciated in the First Judgment. The Court also visited the other alternative prayer sites proposed to the Women of the Wall – among them “Robinson’s Arch” – but further held in the Judgment (at p. 366) that “making such a visit was unnecessary for the purpose of rendering a decision, inasmuch as the Petitioners’ right to pray in accordance with their custom at the Wall was already recognized, in practice, in the First Judgment”. As for us, we should remember that we are sitting in judgment in a Further Hearing.

44.       In our deep desire to try to find an appropriate, amicable solution to this prolonged dispute between the parties, we, too, decided to visit the “Robinson’s Arch” site. We indeed visited the site, and received explanations from the representatives of the Antiquities Authority and other relevant bodies. After seeing the site with our own eyes and examining what needed to be examined, we arrived at the conclusion – like the justices of the Second Judgment – that prayer at the “Robinson’s Arch”, site in its current state, would not properly realize the right of the Women of the Wall to pray opposite the Wall. Indeed, had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza. However, in its present physical state, “Robinson’s Arch” cannot serve as an appropriate prayer space. We are satisfied that this alternative cannot succeed, and we cannot blame the Women of the Wall for not agreeing to the proposal. We would further note that the “Robinson’s Arch” site currently serves as a unique archaeological park that is under the auspices of the Antiquities Authority, and the Antiquities Authority does not agree to introduce any changes that would make the place suitable to serving as a prayer site.

45.       We regret that the parties could not find a way to bridge the gap between them, even if it meant walking a narrow bridge. It was possible, and would have been proper, to find an appropriate arrangement, but we now find ourselves before a rift. It is best that prayer arrangements not be decided by the courts – neither the High Court of Justice nor any other court. However, now that the matter is brought before us, it is our right – nay, our duty – to decide in accordance with the law.

46.       The Western Wall is a place that is sacred to the Jews. The Wall is also sacred to the Women of the Wall, and to those who firmly oppose the manner of prayer of the Women of the Wall. And so, on one side we have the right of the Women of the Wall to pray in their manner at the Wall, and on the other side stands the firm opposition of other religiously observant people who see the prayer of the Women of the Wall as an affront to their feelings toward a place they hold as holy. And as is well known, holiness is indivisible. This is the main problem standing in the way of finding an appropriate legal solution to the differences of opinion that have arisen between the parties.

47.       I have considered and reconsidered the matter, and in the end I have reached this conclusion: the right of the Women of the Wall is a right that entitles them to pray at the Wall in their manner. That is what was held in the First Judgment. That is what was reiterated in the Second Judgment, and I can find no justification to uproot that decision. However, like every right, the right of the Women of the Wall to pray beside the Wall in their manner is not unlimited. It is a right that – like every other legal right – requires that we evaluate it and weigh it against other rights that are also worthy of protection. Indeed, we must do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties. As President Shamgar stated in the Second [sic] Judgment (ibid., 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner …

            In order to try to comprise both these and those, I believe that, for the time being, it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site, with the proviso that the site be properly prepared in a manner appropriate for people to enter and spend time there. As we said – and saw with our own eyes – the present physical state of the site does not make it possible to conduct prayer there in an appropriate manner, and the worshipper can also not touch the Wall as do worshippers at the Western Wall. The required conclusion is that the “Robinson’s Arch” site cannot be deemed an appropriate alternative site for prayer in its present state. But if the site will be properly and appropriately adapted, it will be possible to view it as an alternative to the Western Wall for prayer. And so, if the Government will prepared the “Robinson’s Arch” site – appropriately and as required – within twelve months from today, then the Women of the Wall will be able to pray in their manner at that site. In saying that the Government must prepare the site “appropriately and as required”, I mean, inter alia, the making of appropriate safety arrangements and easy, secure access to the prayer site and the Wall itself.

48.       But if the place is not made suitable – within twelve months – as appropriate and required, and having found no arrangement acceptable to both parties, it is the duty of the Government to make arrangements in accordance with the instructions set out by President Shamgar in the First Judgment and the instructions of the Court in the Second Judgment. In other words: the Government will be required to make appropriate arrangements and provide appropriate conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza. The Western Wall Plaza is a large space, and with a little good will, the Government will be able to allocate “four cubits” for them to pray in their manner. The Women of the Wall do not ask for much. They are willing to make do with little: for example, prayer for one hour, once a month on Rosh Hodesh (except for Rosh Hodesh of the month of Tishrei), and altogether eleven hours a year (see: the First Judgment, p. 355 at letter C). The Government can arrange this small thing. I would further recall what the Court wrote in the Second Judgment – and recommend that we adopt this statement – that what the Government is asked to decide in regard to appropriate arrangements and conditions is exclusively in regard to the concrete conditions in which the Respondents will be able to pray according to their custom in the Western Wall Plaza – such as the place and times in which they can pray in their manner – while mitigating the affront, as far as possible, to the feelings of other worshippers, and while providing the necessary security arrangements.

            A government is created to govern, which is why it is called a government. And it is the legal duty of the Government to find an appropriate way to enable the Women of the Wall to conduct their prayer in good faith and in their manner in the Western Wall Plaza.

 

Epilogue

49.       The Second Temple was destroyed and went up in flames in the year 70 CE. Little remains but broken fragments. From that time, and for one-thousand-nine-hundred years, those fragments were the captives of foreigners. Jews were callers, permitted to visit their own holy places. On the 28^th of Iyar 5727, June 7, 1967, the Western Wall – a remnant of the outer wall if the Temple – was liberated from the foreign hands that held it. The Wall did not free itself from its captivity. It was the paratroops, paratroopers of the Israel Defense Forces, who freed it from its foreign yoke. Since that liberation, we are at home in this remnant of the Temple. Some of those paratroopers who freed the Wall were religiously observant and some were not. And even the observant ones among them were not all of one stripe. But all of them were agents of the Jewish People – all of the Jewish People. When that war was over – actually, immediately following the liberation of the Wall – the paratroopers fulfilled their duty, and gave the People of Israel that precious trust that they held and that they had redeemed in blood. The Wall was handed over to the Jewish People in its entirety, and not just to a part of it. And all of the Jewish People – and not just part of it – acquired rights in the Wall. “And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.” Thus wrote Deputy President Elon in the First Judgment (ibid., 333). Indeed, so it is. The Western Wall is for all the Jewish People, and not just for a part of it.

 

Conclusion

50.       In conclusion, I recommend to my colleagues that we decide as stated in paragraphs 47-48 above.

            I will conclude with the prayerful wishes of the psalmist (Psalms 122:6-7):

Pray for the peace of Jerusalem, may they prosper who love you.

Peace be within your walls, and security within your towers.

 

 

President A. Barak:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Deputy President (Emeritus) S. Levin:

            I would deny the petition without reservation, as the time has come to render a final judgment in accordance with the law. I see no reason to order, except in the framework of a compromise, that the Robinson’s Arch site, currently a special and unique archaeological park, be converted into a prayer site over the objections of the Antiquities Authority.

 

Justice T. Orr:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Justice E. Mazza:

            Like my colleague the Deputy President, I too am of the opinion that the petition should be denied without any reservations. The right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza was decided by a majority in the judgment on the First Petition (HCJ 257/89 Hoffman v. Director of the Western Wall, IsrSC 48 (1) 265), and unanimously affirmed in the judgment that is the subject of this Further Hearing (HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 345). Even my colleague Justice Cheshin, with whose opinion in regard to the right of the Women of the Wall, the majority of justices in this Further Hearing concur, does not doubt the justice of the said judgment. Nevertheless, he recommends that we intervene in the relief that was granted to the Women of the Wall in the judgment that is the subject of this Further Hearing, such that they will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza only if the Petitioners fail to prepare – and as long as they do not prepare – the “Robinson’s Arch” site for them as an alternative prayer site. In referring to that site, which currently serves as an archaeological park worthy of the name, my colleague indeed admits that “in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall”. Nevertheless, my colleague recommends seeing this site (as long as it is prepared to serve as a prayer site) as an alternative with which the Women of the Wall must make do, and at least for the present, relinquish the realization of their recognized right to pray in accordance with their custom in the Western Wall Plaza. My colleague Justice Cheshin proposes adding this proviso to the judgment, in order, in his words, to “do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties”.

            I cannot agree with this proposal that, with all due respect, essentially eviscerates the recognized right of the Women of the Wall. As we already noted in the judgment that is the subject of this Further Hearing, “the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign”. Moreover, in arriving at our decision in the judgment that is the subject of the Further Hearing, we were careful to point out that the Government must establish the arrangements and conditions, such as the place and times in which the Women of the Wall can conduct their prayer in the Western Wall Plaza, “while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements”. It is important to explain that the arrangements that the Government was obliged to establish were intended to allow the Women of the Wall to realize their right to pray in the Western Wall Plaza, as opposed to beside the Wall. As is generally known, the Western Wall Plaza covers a large area. Most of the worshippers are concentrated in the part of the area that is adjacent to the Wall and clearly separated from the more remote parts of the Plaza. In requiring that the Government establish arrangements that would allow the Women of the Wall to realize their right to pray – some eleven hours a year, in all – in a suitable place in the Western Wall Plaza, we gave appropriate expression to consideration of the feelings of the other worshippers. This equation reflects a proper balance between the need to allow the Women of the Wall to pray in accordance with their custom and the need to mitigate, as far as possible, the resulting affront that may be caused to the feelings of other religiously observant people. Intervening in the substance of the relief granted to the Women of the Wall in the judgment that is the subject of the Further Hearing would upset that balance.

            It is, therefore, my opinion that the petition should be denied, and that a timeframe should be set for the Government to make the necessary arrangements as ordered in the judgment that is the subject of the Further Hearing.

 

Justice T. Strasberg-Cohen:

            My opinion was and remains that the Women of the Wall should be permitted to realize their right to pray in accordance with their custom in the Western Wall Plaza, and that the Government must make that possible by establishing appropriate arrangements, as decided in our judgment in HCJ 3358/95.

            Therefore, I concur with the position of my colleagues Deputy President S. Levin and Justice E. Mazza, according to which the petition should be denied. Nevertheless, I would welcome any compromise that might be achieved by the parties concerned that would be acceptable to all.

 

Justice J. Turkel:

1.         Like my colleague Justice M. Cheshin, I too am of the opinion that the choice of the “Robinson’s Arch” site as a prayer space for the Respondents (who have come to be known as “The Women of the Wall” – J.T.) is the fitting, appropriate and balanced solution to the dispute that was brought before us. However, this solution should not be adopted “conditionally”, as recommended by my colleague, but rather as a permanent solution. My approach also differs from his. If it were up to me, I would quash the order issued by this Court (E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ.) in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (hereinafter: the Second Judgment) ordering the Government “to establish the appropriate arrangements and conditions under which the Petitioners [the Respondents in the petition before the Court – J.T.] will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza”. One way or another, the “Robinson’s Arch” solution, recommended by the Neeman Committee, has been adopted. And it would appear that the petition before us is grounded in law – “in law” in its plain meaning – for reasons of law and not principally for reasons of the law of prayer.

 

Non-intervention in Administrative Discretion

2.         I will begin with first principles. The discretion granted to an administrative authority is the power to choose among possible solutions. The rule is that the Court will not substitute its discretion for the discretion of the administrative authority required to decide a matter. Thus it has been held:

One thing is beyond all doubt, and it is that the Court will not attempt to substitute its discretion for the discretion of the competent authority, and will not impose its opinion on those upon whose wisdom, reasoning, knowledge and practical experience the legislature intended to rely; in short – on their discretion that is based upon knowing the true situation in all its aspects and conditions …. (CA 311/57 A.G. v. M. Dizengoff and Co. Ltd., IsrSC 13 (2) 1026, 1039, per Z. Berenson J.).

            It was further stated in this regard, inter alia:

A discretion is given to an administrative organ …in order that, in fulfilling its many-sided functions which circumstances may vary and change periodically and which cannot be precisely determined in advance, it may have freedom of action. In other words, discretion means freedom of choice from among different possible solutions, or an option granted to the administrative authority, and because that authority is empowered to choose and select the solution appropriate to its mind, the court will not interfere for the reason alone that it would itself have picked upon a different solution. Such interference is tantamount to a negation of the discretion of the administrative organ and its transfer to the court (FH 16/61 Registrar of Companies v. Kardosh, IsrSC 16 1209, 1215, [English translation: IsrSJ 4 33, 35]; HCJ 92/56— Richard Weiss v. Chairman and Members of the Law Council (1956) IsrSC 10 1592; HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [1987] IsrSC 41(2) 701, 708 per E. Winograd J.).

 

            This rule is based upon the separation of powers, “in accordance with which the authority to decide in matters of execution and administration remains – except in exceptional cases – in the hands of the Executive, whereas the Judiciary restricts itself to judicial review of the constitutionality of the authority’s decision” (R. Har-Zahav, Israeli Administrative Law (1966) p. 436 (Hebrew). However, a number of causes for intervention in administrative discretion have been developed in the case law, inter alia, the duty to act within the law, the duty to refrain from discrimination and act equally, the duty to exercise discretion reasonably, the duty to act fairly and not arbitrarily, the duty not to act on the basis of extraneous considerations or for extraneous purposes. Thus, it has been stated:

It appears to me that in this regard, the normative framework that applies to the exercise of administrative discretion applies to this matter as well. The accepted rules in regard to reasonableness, fairness, good faith, an absence of arbitrariness, discrimination and other such criteria that apply to administrative discretion apply to this matter as well (HCJ 297//82 Berger et al. v. Minister of the Interior, IsrSC 37 (3) 29, 34, per Barak J.).

            Did the Government act within the framework of its discretion in deciding to designate the “Robinson’s Arch” for the prayer of the Respondents? Do any of the causes that justify intervention in administrative discretion apply here? And therefore, should we order the Government to establish arrangements and conditions as stated in the order in the Second Judgment?

 

The Exercise of Discretion

3.         Before attempting to answer these questions, we will first consider some of the history of the affair. In HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall et al.; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (hereinafter: the First Judgment) – in which this Court (M. Shamgar P., M. Elon D.P. and S. Levin J.) first addressed the subject at bar – the Court “decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge” to “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers”.

            Pursuant to the First Judgment, and in accordance with the recommendation of President Shamgar, the Government decided, on May 17, 1994, to appoint a Directors General Committee that was requested “to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site” (hereinafter: the Directors General Committee). The Directors General Committee recommended that the petitioners be offered an appropriate alternative site in which they might realize their desire to pray in accordance with their custom, in two sites in the boundaries of the archaeological park – the “Hulda Steps”, and the southwestern corner of the Western Wall that is referred to as “Robinson’s Arch”. The recommendations of the Directors General Committee were presented to the Government on April 2, 1996. On April 21, 1996, the Government appointed a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government” (hereinafter: the Ministerial Committee). On June 2, 1997, the Ministerial Committee decided to adopt the recommendations of the Directors General Committee. At that time, a committee was established to make recommendations in the matter of religious conversion. The Government asked the committee to make recommendations in regard to the prayer of the Women of the Wall, who are the Respondents in the petition at bar. On Sept. 23, 1998, the Neeman Committee presented a report in which it reached the conclusion that prayer at the “Robinson’s Arch” site, which “meets the Wall and is adjacent to it …” is “the most practical alternative for the needs and demands of the Women of the Wall”. The committee emphasized that it reached this conclusion after “weighing and balancing the need to find a suitable prayer space that will answer the needs and demands of the Women of the Wall and the important principle of refraining from causing affront to the worshipping public in the Western Wall Plaza and not violating local custom”. The conclusion was adopted by the Government, as we learn from the Petitioners’ notice which states that “the recommendations of the Neeman Committee represent a reasonable balance between the petitioners’ wish to pray according to their custom at the Western Wall and the other relevant considerations” (para. 13 of the respondents’ supplemental pleading in that case, who are the Petitioners at bar, for the hearing in which the Second Judgment was given).

            The Neeman Committee’s conclusion was examined in the Second Judgment, and it is also at the heart of these proceedings. As stated, the Neeman Committee reached its conclusion after it examined and considered other possible prayer sites, after “weighing and balancing” the various considerations, and after finding that “the most practical alternative” was at the “Robinson’s Arch” site. Thus, the committee chose one solution from among the possible solutions presented to it, which included the women’s prayer section in the Western Wall Plaza. Even if I were of the opinion that a different solution could have been chosen, there are no grounds for saying that the Neeman Committee – and then the Government – could not make the choice that it made, or that any of the causes that would justify intervention in that conclusion were present. Therefore, inasmuch as the Government concluded that it would be appropriate to choose the alternative recommended by the Neeman Committee, this Court must not substitute its discretion for that of the Government, whether by rejecting its decision or by revisiting the matter in a Further Hearing, as was done in regard to the Second Judgment.

 

The Conclusion of the Neeman Committee –Additional Reasons for Adoption

4.         According to my colleague Justice M. Cheshin: “As we are all aware, ‘Robinson’s Arch’ is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall with a capital ‘T’.” I cannot agree with that statement, and not merely because my impression is different, but primarily because no halakhic or historic sources were presented from which one might conclude that the holiness of any particular part of the Western Wall – the wall that, in my view, is the entire western wall of the Temple Mount – is more holy than any other part.

            I also find it hard to agree with his conclusion that: “had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza”. I am of the opinion that the sanctity of a place does not derive from constructing and adapting it, but rather it is inherent to its very nature. I would note in this regard that the Masorti [Conservative] Movement uses the “Robinson’s Arch” site as a prayer venue, and regards it as the “Masorti Wall” (see the Masorti Movement’s advertisement in the Kol Ha’ir newspaper of June 16, 2000, submitted as Appendix B of the Petitioners’ written summation).

5.         It is worth noting that under the Neeman Committee’s recommendation, the Respondents – who claim to follow “Orthodox custom” – retain the right of access to the women’s prayer section of the Western Wall Plaza, including the right to pray there in accordance with the local custom. The only restriction upon the Respondents’ worship there would be in regard to their practice of praying “in a group, wrapped in tallitot, carrying a Torah scroll and reading from it”. However, they would be able to follow that practice in the “Robinson’s Arch” site, which is the continuation of the Western Wall.  The respondents would, therefore, be permitted to carry out all of their prayer customs – some in the Western Wall Plaza before the Western Wall, and some at the “Robinson’s Arch” site. For this reason as well, the solution chosen by the Neeman Committee and adopted by the Government was appropriate, proper and balanced.

This conclusion does not contradict the view expressed by President Shamgar in the First Judgment, in which he stated: “I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., at p. 3556). I doubt that President Shamgar’s intention in that statement was to hold that the Respondents, the Women of the Wall, have the right to pray at the Western Wall – in its specifically limited sense that does not include the “Robinson’s Arch” site – and specifically according to their custom. It would seem to me that the intention can be inferred from the fact that, contrary to the position of Justice S. Levin in the First Judgment – who wished to issue a judgment that recognized the right of the Women of the Wall “to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls” – President Shamgar adopted the language “freedom of access to the Wall” and no more. The Neeman Committee’s conclusion thus ensures both the freedom of access and the freedom of worship of the Respondents, as recommended by President Shamgar, but limits part of their prayer practices to “part” of the Western Wall, which is the “Robinson’s Arch” site. There is no reason to intervene in that.

 

Judgment of Peace

6.         In concluding, I would say a few words about the paths of peace. In tractate Derekh Eretz Zuta, Perek HaShalom we read: “As we learned there, Rabbi Shimon ben Gamliel says: The world exists on three things – on justice, on truth and on peace. Rabbi Mina says: And these three are one. Where justice is done, truth is done and peace is made. And these three were stated in one verse, as it says (Zachariah 8:16) ‘Give judgment in your gates for truth, justice, and peace’. Wherever there is justice, there is peace…”. The judgment rendered by the Government in adopting the alternative that it chose is judgment and is peace.

 

Conclusion

7.         If my opinion were adopted, we would grant the petition, quash the order issued by the Court in the Second Judgment, and declare that in adopting the conclusion of the Neeman Committee in regard to choosing the “Robinson’s Arch” site as a prayer venue for the Respondents, the Government fulfilled its obligation. However, since my colleague Justice Cheshin – in his own way, which is the way of compromise – reached the conclusion that “it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site”, I concur with what is stated in the concluding part of para. 47 of his opinion.

 

 

Justice D. Beinisch:

            I concur in the opinion of my colleagues Deputy President S. Levin, Justice E. Mazza and Justice T. Strasberg-Cohen, who are of the opinion that the petition should be denied. I have not changed my opinion that it is the right of the Women of the Wall to pray in accordance with their custom at the Western Wall, and that the Government must establish the arrangements and conditions that would limit, as far as possible, the affront to the feelings of the other worshippers, in terms of a suitable place, times, and security arrangements.

 

Justice I. Englard:

            I utterly disagree with my colleagues in the majority. My disagreement is not focused upon individual points, but is rather a disagreement with their entire approach, beginning with the alleged holding in the judgment in the first proceeding, HCJ 257/89, 2410/90 Hoffman et al. v. Director of the Western Wall et al., IsrSC 48 (2) 265 (hereinafter: the First Case), and ending with the merits of the approach adopted by this Court in the second proceeding, HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 245 (hereinafter: the Second Case).

            I will begin with my different understanding of the holding in the First Case. My colleague Justice E. Mazza tried to infer a majority holding – which would constitute a binding instruction – from the three different opinions given in the First Case, recognizing the fundamental right of the petitioners to pray in their manner in the Western Wall Plaza. The trouble is that such an attempt, focused upon the opinion of President Shamgar, is highly problematic in that, from a legal standpoint, the only result of the judgment was the denial of the petitioners’ petition, subject to a recommendation that the Government consider the appointment of a committee. Thus, all the rest of President Shamgar’s opinion, whatever it may mean, was nothing but obiter dicta that have no obligatory legal force whatsoever.  Indeed, at the end of his opinion, President Shamgar expressly holds that “at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided”, and he adds that “[t]he gates of this Court are always open, but as stated, the other available options should first be exhausted”. Against the background of these statements, I cannot agree with this Court’s assumption in the Second Case that the committees that addressed the issue “drifted to views that were rejected by the majority of the justices in the First Judgment”. Moreover, President Shamgar held that practical solutions should be sought “according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others” (ibid., at p. 335 between marginal letters e-f; emphasis added – I.E.). Therefore, even according to the “majority”, no fault can be found with the committees that examined and found that prayer in the manner and style of the petitioners significantly violates the prayers of others, and therefore proposed what they proposed. It should be noted that preserving the local custom does not constitute a fundamental impediment barring the petitioners from approaching and praying beside the Wall. The prohibition concerns only the outward manner of worship, to which I will return in the course of this opinion. For the moment, I will suffice with the comment that there is unanimous agreement on the condition that the realization of the right to worship must be made in good faith (per Shamgar in the First Case, at p. 355 [marginal letters e-f]; per Levin, ibid., at p. 357 [c]; per Mazza in the Second case, at p. 363 [d]). Yet, there are those who see the petitioners’ manner of prayer as constituting a “provocation” or a “war” to achieve ideological goals, and the Western Wall is not the appropriate place to wage it [Elon, pp. 329 & 350].  This question, too, was examined by the Court in the First Case. From all the above we can, in my opinion, conclude that there is no legal basis for this Court’s assumption that the committees that addressed the matter of the petition, following the First Case, did not do what they were asked to do in accordance with the instructions in that judgment. There was no such instruction, and therefore, for this reason alone, the petition in the Further Hearing should be granted.

2.         It is, however, clear that the said formal reason is not sufficient to conclude the debate surrounding this petition. In the final analysis, what stands behind the formal reliance upon the judgment in the First Case is a substantive perspective that guided my colleagues in the Second Case – a point of view that, in principle, adopted the opinion of my colleague Justice S. Levin in the First Case, while utterly rejecting the point of view of Deputy President M. Elon. It would, therefore, be appropriate to address that substantive perspective as expressed in the Second Case. I will state at the outset that this approach is very problematic in my view due to its shaky legal grounds. There are many questions for which I did not find adequate answers in the opinions of my colleagues Justices S. Levin in the First Case, E. Mazza in the Second Case, and M. Cheshin in this petition. I will briefly touch upon the main issues among them.

3.         The first fundamental issue concerns the general jurisdiction of this Court to consider the issue of freedom of worship in the Holy Places. This issue was mentioned and quickly decided in the First Case by Deputy President Elon (ibid., at pp. 297-298). It should be noted that the claim of lack of jurisdiction was raised not by the State but rather by one of the other Respondents. This is what the Court states there, per Deputy President Elon:

The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68 National Circles Association v. Minister of Police (IsrSC 24(2) 141), the majority held that while the Order-in-Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction    in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

            It should be noted that Justice S. Levin expressed his agreement with this opinion in regard to the Court’s jurisdiction to address the matter of the petition (ibid., at p. 356 [b]).

4.         However, that conclusion as to the jurisdiction of the Court, taken against the background of the provisions of the Order-in-Council and the majority opinion in HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), does not stand up under examination. The matter before us directly concerns freedom of worship and not freedom of access or criminal offenses in regard to the Holy Places. As noted, the petitioners are not being prevented from approaching and praying beside the Wall. The sole restriction is upon the outward manner of their worship. In my opinion, such a dispute falls within the scope of the provisions of the Order-in-Council, even under the provisos set out by President Agranat in the National Circles case. It should be noted that the majority opinion in the National Circles case is viewed with approval by this Court, as can be seen even in HCJ 4185/90 Temple Mount Faithful v. Attorney General et al., IsrSC 47 (5) 221, 282:

Indeed, it has also been held by this Court that the authority to address the realization of the right to worship is granted to the Executive and not the Judiciary, as that is what is established by art. 2 of the Palestine Order-in-Council (Holy Places), 1924, as construed in the National Circles case, above.

            While it is true that the parties to the said proceeding did not raise this claim, nevertheless, since we are concerned with subject-matter jurisdiction, the Court does not derive its authority from them, but must raise the issue of an absence of subject-matter jurisdiction nostra sponte, inasmuch as it relates to the very source of its judicial standing and thus to the validity of its judgment. As is well known, the consent of the parties cannot remedy a lack of subject-matter jurisdiction. Perhaps we should revisit the majority opinion in the National Circles case, but as long as that holding has not been reversed, the authority to address matters of worship in the Holy Places, including the Western Wall Plaza, is granted exclusively to the Executive. By way of demonstration, would anyone imagine that this Court might intervene in the arrangements for worship of the various Christian communities in the Holy Sepulchre in Jerusalem, while changing the existing status quo?! Would it not be self-evident that such an inter-community dispute would be non-justiciable under the Order-in-Council?!

5.         For the sake of continuing the examination, I will assume that it is possible to overcome the problem of lack of jurisdiction, as this Court believed in the two cases mentioned. In other words, I will proceed upon the assumption that the case before us can be situated in the provisions of the Protection of the Holy Places Law and Basic Law: Jerusalem, Capital of Israel. In the First Case, my colleague Justice S. Levin expressed his view in regard to the significance of the Protection of the Holy Places Law and the regulations thereunder. It would appear that that view was adopted in its entirety in the Second Case. I will first quote the statement of my colleague Justice S. Levin in regard to the Protection of the Holy Places Law (ibid., at pp. 356-357):

                        A.          In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

                        B.          Unquestionably, the Western Wall (and its Plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

                        C.          The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

            As noted, this view was adopted by the Court in the Second Case. See and note well, ibid., at p. 352 [e].

6.         Before addressing the said basic point of view of this Court in the matter of the meaning and construction of the Protection of the Holy Places Law in regard to the Holy Places, it would be proper to note, as well, reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, that was added as a result of the dispute that is the subject of this petition. It states as follows:

                        Prohibited Conduct

In the area of the Holy Places … the following is prohibited: Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

            In the First Case, this Court agreed that this regulation does not deviate from the scope of the law (see ibid., at p. 357 [e], per S. Levin J.). However, in regard to the interpretation of this regulation, Justice Levin was of the opinion that:

[B]ut in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

7.         In my opinion, the interpretive approach adopted by this Court is incorrect. The idea that due to the secular character of the Protection of the Holy Places Law and the regulations thereunder, the terms appearing therein must also be interpreted in accordance with secular standards does not stand up under examination. This we must admit: all the laws of the Knesset are, by their very nature, secular norms, inasmuch as the Knesset is not a religious institution. Therefore, nothing can be learned from the nature of the Knesset’s laws in regard to the manner for interpreting terms that appear therein. There is no principled reason that a secular law not refer to a religious system. And this, in fact, is actually done, for one example among many, in the framework of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953. No one would dispute that the term “Jewish religious law” in sec. 2 refers to the Jewish halakhic system. The fact that the Rabbinical Courts Jurisdiction Law is a secular law says nothing about the legislative intent to refer to the religious legal system.

8.         From the above it would appear that the secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. On the contrary, the presumption is that terms borrowed from a religious system should be interpreted in accordance with that system. Moreover, the idea of holiness – in the present context in regard to particular places – is a categorically religious term that has no material meaning in the secular world, and see the classical text R. Otto, Das Heilige (Breslau, 1917); id., The Idea of the Holy, trans. J.W. Harvey (Oxford, 1923, 2^nd ed. 1950). Thus, I cannot accept the general approach of this Court, which, in the context of the Protection of the Holy Places Law, attributed secular significance to the Western Wall. Of course, I do not dispute the national significance that holy places may have, but that was not the intention of the law, which expressly addressed the holy dimension of those places.

9.         The result is that terms borrowed from the religious world, such as “desecrate”, should first and foremost be interpreted in accordance with their religious significance. This is conspicuous in reg. 2 (a) (1) of the Protection Regulations that prohibits “Desecration of the Sabbath and Jewish holidays”. Is there any doubt that the intention is to refer to the Jewish halakha that defines what constitutes “desecration of the Sabbath and Jewish holidays”?!

10.       I utterly disagree with the idea expressed by my colleague Justice S. Levin in the First Case that he is “unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other” (ibid., at p. 356 [e]). In speaking of the Western Wall and its Plaza as a holy place, the Protection of the Holy Places Law and the regulations thereunder must have intended the Western Wall as a synagogue, for that is the status that – in accordance with the halakhic conception – imbues that place with its holiness. This is made clear in the opinion of Deputy President M. Elon, who addressed this matter at length in the First Case, and arrived at the conclusion that the law applicable to the Western Wall Plaza is the law of the synagogue. See ibid., at pp. 318-319, where, inter alia, Sephardic Chief Rabbi Ovadia Yosef is cited:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

11.       Against this background, we may conclude that the Court’s understanding of the expression “conducting a religious ceremony that is not in accordance with the local custom” is also mistaken. “Local custom” is patently halakhic term, as is clear from the opinion of Deputy President M. Elon in the First Case. The purpose of “local custom” is to express the existence of the distinctive, traditional manners of prayer of a given place of worship. Therefore, there is no basis for the view of this Court that “in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others”. In my opinion, this construction is absolutely contrary to the intention of the author of the regulations and to the language of the regulation, and no legal basis can therefore be found for it.

12.       The result is that, assuming the said regulation was issued in accordance with the law – an assumption on which both I and this Court agree – then the decision to grant an order absolute in the petition at bar cannot stand. But that is not all. In accordance with the halakhic decisions cited in the opinion of Deputy President Elon, which were issued by Chief Rabbis Rabbi Avraham Shapira and Rabbi Mordechai Eliyahu, granting the petition would constitute a desecration of the customs and sanctity of a synagogue (First Case, at pp 328-329, and pp. 319-320). In this regard, Deputy President Elon wrote (ibid., at p. 350):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            I cannot but wonder where this Court finds the authority to disagree with those halakhic decisions, according to which granting the petition would constitute a violation of the provisions of sec. 1 of the Protection of the Holy Places Law, which protects the Western Wall from desecration.

13.       Lastly, even if I were to ignore all of the legal problems that I have enumerated in my opinion, there would still be support for the opinion that, in view of the halakhic situation, granting the petition allowing the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others (Shamgar P., the First Case, at p. 355 [e]), or an excessive violation of the feelings of others (Levin J., ibid., at p. 357 [e]), and thus a violation even under the accepted tests of this Court.

14.       Parenthetically, I would make an observation in regard to the alternative site proposed to the petitioners at “Robinson’s Arch”. The Court’s visit to the site showed that, in principle, the site is appropriate for prayer beside the Wall. However, the representatives of the Antiquities Authority opposed making any change to the site, no matter how small. Their opposition was in regard to a stone that had fallen from the ancient wall and that, in the opinion of the representatives of the Antiquities Authority, must not be moved or hidden. I was not convinced that there is any real reason not to adapt the site such that access to the wall itself would be possible, with minimal injury to the fallen stone. I regret that my impression was that for some, the “sanctity” of archaeology exceeds the sanctity of the synagogue.

            In light of the above, if my opinion were accepted, the petition for a Further Hearing would be granted and this Court’s judgment in HCJ 3358/95 would be reversed.

            However, inasmuch as my opinion remains a minority view, I concur, at least, with the first part of the opinion of my colleague Justice M. Cheshin, by which, if the Government will prepare the “Robinson’s Arch” site – as appropriate and necessary – within twelve months from today, then the Women of the Wall will be permitted to pray there in their manner.

 

 

            Decided in accordance with the majority of Barak P. and Orr, Cheshin, Turkel and Englard JJ., and against the dissenting opinions of Levin D.P. and Mazza, Strasberg-Cohen, and Beinisch JJ., as stated at the conclusion of paragraph 47 of the opinion of Cheshin J. in regard to the preparing of the “Robinson’s Arch” site as a prayer space for the Women of the Wall. However, if the “Robinson’s Arch” site is not prepared to serve as a prayer space for the Women of the Wall within twelve months of the day of the rendering of this judgment, then we decide by a majority of Barak P., Levin D.P., and Orr, Mazza, Cheshin, Strasberg-Cohen and Beinisch JJ., and against the dissent of Turkel and Englard JJ., as stated in paragraph 48 of the opinion of Cheshin J., that is, that the Government is obliged to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in accordance with their custom at the Western Wall.

            Under the circumstances, we make no order for costs.

 

            This 4^th day of Nissan 5763 (April 6, 2003).

 

 

HCJ 3358/95

 

 

 

Petitioners:                  1.         Anat Hoffman

                                    2.         Chaya Beckerman

3.         International Committee for Women of the Wall, Inc. by Miriam Benson

 

                                                                        v.

 

Respondents:              1.         Director General of the Prime Minister’s Office

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

                                    6.         Prime Minister’s Advisor on the Status of Women

                                    7.         Government of Israel

 

Attorneys for the Petitioners: Jonathan Misheiker, Adv., Francis Raday, Adv.

Attorney for the Respondents: Uzi Fogelman, Adv.

 

The Supreme Court as High Court of Justice

[17 Iyar 5760 (May 22, 2000)]

Before Justice E. Mazza, Justice T. Strasberg-Cohen, Justice D. Beinisch

Objection to an Order Nisi

 

 

This petition concerns the Petitioners’ request to establish arrangements that would enable them to pray in the prayer area adjacent to the Western Wall in “women’s prayer groups, together with other Jewish women, while they are wearing tallitot [prayer shawls] and reading aloud from the Torah”, as required by the judgment of the Supreme Court in HCJ 257/89 Hoffman v. Director of the Western Wall (hereinafter: the First Judgment). Pursuant to the First Judgment, the Government decided, in 1994, to appoint a Directors General Committee, headed by the Director General of the Prime Minister’s Office, to present a proposal for a possible solution that would ensure the Petitioners’ right of access and worship in the Western Wall Plaza, while limiting the affront to the feelings of other worshippers at the site. In the report presented by the Directors General Committee to the Prime Minister, the Committee found that the Petitioners could not be permitted to pray in the Western Wall Plaza itself. The Committee therefore recommended that the Women of the Wall be permitted to pray at an alternative site at the southeastern corner of the Temple Mount wall. Two additional public committees that addressed the matter adopted a similar position, and the matter was therefore returned for a decision by the Court.

The Supreme Court Held:

A.        (1)        The First Judgment recognized the Petitioners’ right to worship in the Western Wall Plaza.

            (2)        The mandate of the Directors General Committee was to find a solution that would allow the Petitioners to realize their right to pray in the Western Wall Plaza, while reducing the affront to the feelings of other worshippers. But in recommending the designation of an alternative prayer site to the Western Wall Plaza the Directors General Committee chose a solution that was different from the one it was requested to develop and propose.

            (3)        Therefore, the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

B.        (1)        In arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

            (2)        We cannot reconcile with a situation in which fear of the violent reaction of any sector of the public will lead to the denial of the possibility of another sector to realize its given rights. It is not inconceivable that, in given circumstances, the Police may prevent a person or a group from realizing a right where there is a real basis for the fear that realizing the right will lead to a violent outbreak that may breach the public peace, and where the Police is unable to prevent such dire consequences by reasonable means. But no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition.

C.        (1)        Inasmuch as none of the alternatives suggested and considered at various stages of the proceedings can be viewed as even partially realizing the right to worship in the Western Wall Plaza, it is appropriate that the High Court of Justice order the Respondents to act to establish the appropriate arrangements for the realization of that right.

            (2)        Therefore, the Government must make concrete arrangements that will ensure the realization of the Petitioners’ right to worship in the Western Wall Plaza within six months.

 

 

 

Judgment

 

Justice E. Mazza:

1.         This petition concerns the Petitioners’ request that arrangements be made to permit them to pray in the prayer area beside the Western Wall in “women’s prayer groups, together with other Jewish women, while they are wearing tallitot [prayer shawls] and reading aloud from the Torah”, in accordance with the judgment of this Court in HCJ 257/89, 2410/90 Hoffman v. Director of the Western Wall, IsrSC 48 (2) 265 (hereinafter: the First Judgment).

 

The Basic Facts

2.         Petitioners 1 – 2 are Jewish Israeli women who wish to pray and read the Torah aloud at the Western Wall, together with other women and while wearing tallitot. Petitioner 3 is a corporation registered in the United States whose members are Jewish women from various countries who also wish to pray at the Western Wall in the manner of Petitioners 1 -2. At the end of the nineteen eighties, groups of women, the Petitioners among them, attempted to pray at the Western Wall in their manner. Their attempts met with the strong objections of the other worshippers at the site. The disturbance of these prayers, conducted in a manner that differed from that accepted at the site, was accompanied by rioting, verbal violence, and even attempts at the physical harm of the women worshippers. The police intervened as necessary in order to protect the women, but the women were generally unable to complete their prayers successfully. It was against this background that the first petitions were submitted, which resulted in the issuance of the First Judgment. Those petitions required that the Court address the question if and to what extent the Petitioners are entitled to pray at the Western Wall in their manner, even though it differs from the accepted prayer customs of the overwhelming majority of worshippers at the Western Wall, and in light of the fear that conducting prayers in the special manner of the Petitioners will violate the feelings of a large worshipping public, which might lead to a breach of the public peace. Petitioners 1 & 3 were also among the Petitioners in those earlier petitions.

 

The First Judgment

3.         I the course of hearing the earlier petitions, regulation 2 (a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, was amended by the addition of subsection (1a), which added to the restrictions applying to the Holy Places (among them “the Western Wall and its Plaza”) a prohibition upon “Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.” In deciding the earlier petitions, the Court was therefore required to address questions raised by the promulgation of the said regulation 2(a) (1a): Was the regulation promulgated in accordance with the authority granted to the Minister of Religion by virtue of The Protection of Holy Places Law, 5727-1967? If so, how is the term “local custom”, introduced by the amendment, to be construed?

4.         In the First Judgment (given on Jan. 26, 1994), the Court held (unanimously, in regard to these matters) that the Petitioners indeed have the right, in principle, to pray in their manner and according to their custom, and that reg. 2(a) (1a) does not deviate from the scope of The Protection of the Holy Places Law. However, the Court was divided in regard to other matters: in regard to the right of the Petitioners to realize their fundamental right to freedom of worship in practice at the Western Wall; in regard to the construction of the term “local custom” as it appears in the aforementioned reg. 2(a) (1a); and in regard to the manner of deciding the petitions.

5.         Deputy President Elon was of the opinion that the petitions should be denied in their entirety. Even according to his view the Petitioners enjoy the right to worship in accordance with their custom. He also found that the Petitioners’ prayer customs (in regard to wearing tallitot, carrying Torah scrolls, and reading from them aloud) did not constitute a breach of halakhic prohibitions. However, their right to practice their special form of worship in the Western Wall Plaza must retreat in light of the uniqueness of the Wall and the obligatory local custom. In his opinion, regulation 2(a) (1a) expresses the principle of maintaining the “status quo” in the Holy Places. The term “local custom”— whose meaning, in practice, is identical to the “status quo” – was construed by him in its halakhic sense, that is, as one of the legal sources that create law. Halakha approaches the subject of change in synagogue customs with special care. There was never a custom of women’s prayer at the Western Wall, which is, in this regard, a synagogue. Worship at that site in the manner of the Petitioners deviates from the broad common denominator that allows for the prayer of every Jew, whomever he may be, and would be contrary to the local custom. As he states at the conclusion of his opinion (at p. 350):

Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place … The purpose of the regulation is to find the common denominator in order to facilitate the prayers of every Jew, whomever he may be, in the place that is holiest to the Jewish People, while preventing severe, violent dispute in this one unique place that unites the Jewish People…

Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Judaism’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to.

 

6.         Justice S. Levin was of the opinion that the petitions should not be decided in accordance with halakhic considerations. The Protection of the Holy Places Law is a secular law that takes account of considerations regarding all the relevant religious communities, “and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety.” As he states (at p. 356):

Unquestionably, the Western Wall (and its plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law (The Protection of the Holy Places Law – E.M.), the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

            Levin J. did not find the broadest common denominator to be an acceptable test for defining conduct as prohibited at the Western Wall site due to that conduct being a “desecration” or a “violation of feelings”, because (as he states at pp. 356-357):

…even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

            That is also the case in regard to the construction of the term “local custom” which need not necessarily be in accordance with halakha or the existing situation. After all, “it is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others”. Indeed, Levin J. was also willing to assume that in exceptional cases there may be justification for imposing restrictions upon certain religious activities at the Wall, where the consensus of the general public is that such conduct constitutes a desecration of the site, where the conduct is not performed in good faith but simply to provoke and anger, or conduct that, due to its extent or timing, might lead to a breach of public order. But (as he states at p. 357):

… no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its plaza may fully realize their rights without unnecessarily violating the feelings of others.

            In concluding his opinion, Levin J. states that “it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above.”

7.         In his opinion, President Shamgar addressed the required balance between maintaining freedom of access to the Western Wall for all who view it as sacred, and violating the holiness of the site and the feelings of other worshippers. The need for striking such a balance, which can be learned from an understanding of the purposes of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law, is anchored in our being a free society in which human dignity is a fundamental value. As he states (at p. 354):

Therefore, we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person … that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

However, we must bear in mind that tolerance and patience are not unidirectional norms, but rather they are encompassing and multidirectional. An enlightened society also respects the beliefs and opinions of those who fiercely hold them and identify with them in a manner that is not necessarily the manner of the average person … Tolerance is not a slogan for acquiring rights, but a standard for granting rights to others. Ultimately, tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            Further on, Shamgar P. notes that he, too, accepts the call of Elon D.P. to strive to find
“the common denominator for all Jews, whomever they may be”. However, in his opinion, common denominator does not mean the adoption and imposition of the strictest view, but rather “sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers” (emphasis original – E.M.). In addressing the meaning of the term “local custom” and its consequences for the decision, Shamgar P. added:

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner … (emphasis added – E.M.).

Notwithstanding the above, and for reasons of legal policy, Shamgar P. chose to refrain from deciding the petition on the merits. In view of the nature of the required decision (“the bumpy road of trying to balance between approaches and beliefs that are incompatible”), he was of the opinion that a resolution achieved through agreement and understanding would be preferable to an imposed judicial solution. Inasmuch as the Court is not the most effective – and certainly not the only – medium for attempting to bring together the various parties to find practical ways for realizing the legislative purpose of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law, it would be appropriate, in his view, “to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall”. Shamgar P. summarized his opinion in regard to the petition (pp. 355-356) as follows:

It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers (emphasis added – E.M.).

Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

8.         The result of the First Judgment was, therefore, that by a majority – and subject to the recommendation set out in the opinion of Shamgar P. – the Court denied the petitions. But it should be noted that in accordance with the division of the opinions in the judgment, two of the Justices were of the opinion that the Petitioners had a right to worship at the Western Wall in accordance with their custom. In truth, the difference between their opinions was only that while Levin J. was willing to render a judgment declaring the said right of the Petitioners, Shamger P. was of the opinion that before rendering a judicial decision on the Petitions, the parties should exhaust the other avenues for reaching an agreed resolution that, on the one hand, would “ensure freedom of access to the Wall”, and on the other hand, “limit the harm to the feelings of the worshippers”.

 

Developments following the First Judgment

9.         Pursuant to the First Judgment, the Government decided, on May 17, 1994, on the appointment of a Directors General Committee, headed by the Director General of the Prime Minister’s Office, to present recommendations for a possible solution within six months (Decision no. 3123). The decision was worded as follows:

                        3123. Prayer Arrangements in the Western Wall Plaza

                                    Decided:

In accordance with the decision of the Supreme Court in HCJ 257/89, Hoffman et al. v. Director of the Western Wall et al., in regard to the scope of the right of access to the Western Wall:

1. Upon the appointment of a Directors General Committee headed by the Director General of the Prime Minister’s Office and composed of the Director General of the Ministry of Religious Affairs, the Director General of the Ministry of the Interior, the Director General of the Ministry of Police, and the Legal Advisor of the Prime Minister’s Office.

 

The Prime Minister’s Advisor on the Status of Women will participate in the Committee as an observer.

 

2. The Committee will be requested to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site.
3. The Committee will present its recommendations to the Government within six months of today.

10.       In the interim, the Petitioners submitted a request to the Court for a Further Hearing on the First Judgment (HCJFH 882/94 Alter et al. v. Minister of Religious Affairs et al.).  In denying that petition (on June 12, 1994), Deputy President Barak stated that “it would be appropriate to wait for the recommendations of the Committee (which are supposed to be presented within six months of the establishment of the Committee)”. However, he added:

If the Petitioners do not find those recommendations to be acceptable, they will be free to return to this Court (sitting as High Court of Justice). In this regard, the President sated his in his opinion that “the gates of this Court are always open, but as stated, the other available options should first be exhausted”.

11.       On Nov. 20, 1994, the Government decided (Decision no. 4221) to extend the deadline for presenting the recommendations of the Directors General Committee by an additional six months, that is, until May 17, 1995. The explanatory notes to the draft of that decision stated that the need for extending the deadline derived from “the complexity of the subject, its inherent problems, and in consideration of the attempts made to achieve a solution that will be acceptable to all the involved parties, to the extent possible”. However, the Committee did not present its recommendations even after the deadline established in this decision, and it is against that background that this petition was submitted.

 

Developments in the Framework of the Present Petition

12.       The petition at bar was submitted to the Court on May 30, 1995. The petition asks that the Court issue an order nisi ordering Respondents 1-5, the members of the Directors General Committee, to state their reasons “why they should not present without delay the recommendations they were instructed to submit to the Government by May 17, 1995, in accordance with Government Decision no. 3123 of May 17, 1994”. The petition further asks for an order nisi against the Government (Respondent 7), ordering that is state its reasons “why it should not refrain from deciding upon a further extension of the deadline for the presenting of the recommendations of Respondents 1-5”. In addition, the Petitioners prayed for an order declaring their right to pray at the Western Wall in accordance with their custom pending the presentation of the recommendations of the Directors General Committee and pending the Government’s decision upon those recommendations, as well as for an order instructing the Government to adopt the necessary measures for ensuring the protection of the Petitioners in the course of their prayers against harm by lawbreakers and violent disturbers of the peace. The petition also included a request for an interim order barring Respondent 7 from deciding upon a further extension of the deadline for the presentation of the recommendations of the Directors General Committee.

            Justice Dorner, before whom the petition was brought, decided (on the day of the submission of the petition) to deny the request for an interim order, while ordering that the request for the order nisi be set for a hearing by a panel. After about a month (on July 2, 1995), the Government once again decided (in Decision no. 5806) to extend the deadline for the presentation of the recommendations of the Directors General Committee by an additional six months. The explanatory notes to the draft of that decision stated that the solution that is being developed in the Committee’s meetings is for the “designation of a specific place” for the Petitioners’ prayers, and that the achievement of such a solution requires coordination among a number of governmental ministries and additional elements. The hearing of the petition was scheduled for a hearing before a panel on Oct. 5, 1995, but in view of the Government’s decision of July 2, 1995, and in order to allow the Directors General Committee to complete its task, the Court adjourned the hearing to a later date.

13.       Report of the Directors General Committee: The Directors General Committee presented its recommendations to the Prime Minister on April 2, 1996. Before addressing the recommendations, we will first describe the course of the Committee’s enquiry, to the extent that it can be discerned from the material before us.

14.       From the report it would appear that soon after its appointment, the Committee requested the opinions of the Chief Rabbis of Israel, who are responsible for the Director of the Western Wall. In their response, the Chief Rabbis ruled that inasmuch as the suggestion that prayers be conducted in the manner requested by the Petitioners “is a change of the tradition that has been handed down to us from generation to generation, and constitutes a breach of the character of prayer that has been accepted to this day, we order that there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”.

            Following an initial, comprehensive tour of the Western Wall area and its surroundings and hearing the position of the Israel Police, the Committee turned to an examination of the possibility of designating an alternative prayer space for the Petitioners in close proximity to the Wall. In the course of that examination, representatives of the Center for Jewish Pluralism submitted a request to the Committee asking that, in the course of its deliberations, the Committee also address the requests of Reform and Conservative congregations in Israel and from around the world to pray at the Western Wall. The Petitioners objected to mixing the examination of their matter with the requests of other groups whose accepted prayer customs have nothing in common with those of the Petitioners. The Petitioners also objected to the Committee’s inclination to examine alternative prayer sites. Their attorneys argued that the First Judgment recognized the Petitioners’ right to freedom of access to the Wall and to conducting prayer at that site, and that the balance between the realization of that recognized right and refraining from violating the feelings of other worshippers could and should be achieved not by removing them from the prayer area beside the Wall, but rather by designating a specific time for their prayer at the Wall (e.g., one hour on every Rosh Hodesh [the beginning of the new month on the Jewish calendar], with the exception of the Rosh Hodesh of the month of Tishrei, thus representing eleven hours a year in all).

            After an additional tour of the Western Wall area and inquiring as to the positions of the Antiquities Authority and the East Jerusalem Development Corporation, the Committee sent a document to all the relevant parties entitled “Agenda for Discussion”. In regard to the possibility of allowing the Petitioners to pray according to their custom in the Western Wall Plaza, the document stated that that Committee had found that “the designated Western Wall Plaza is very problematic,” and that against that background, and considering the opinion of the Police, the Committee examined several suggested alternatives: in the area of “the Southern Wall”, adjacent to the southeastern corner of the Temple Mount; in the area of the “Hulda Steps”; and north of “Robinson’s Arch” adjacent to the southwestern corner of the Temple Mount. The Committee appended its comments to each alternative, and stated in the conclusion of the Agenda that “the Committee must decide which of the proposed alternatives should be chosen as preferred”.

            On Feb. 19, 1996, the Petitioners attorneys submitted their written response to the “Agenda for Discussion”. In their response, they stated that the Committee’s assumption that the Petitioners can be prevented from realizing their right to pray beside the Wall is not consistent with the First Judgment, and that the apparent intention to displace the Petitioners from the Western Wall Plaza to other places is not only unreasonable and discriminatory, but also humiliating and hurtful. It was further argued that President Shamgar’s instruction in the First Judgment was to find a solution that would ensure freedom of access to the Wall and limit the harm to the feelings of other worshippers. But that instruction, intended to reflect a proper balance between recognizing the right of the Petitioners and consideration of the feelings of other groups, in no way or form permits granting absolute preference to the feelings of worshippers by denying the Petitioners’ right to access the Wall. Further on, the Plaintiffs’ attorneys objected to the Committee’s use of the opinion of the Police as support for depriving the Petitioners of their rights. They argued that the opinion of the Police could be granted weight only for the purpose of establishing limits upon the realization of the right, but the opinion of the Police could not serve as the basis for the absolute denial of a recognized fundamental right. Despite the Petitioners’ principled position rejecting a solution based upon proposing alternatives, their attorneys also addressed the proposed alternatives in their written response to the Agenda for Discussion. Most of the proposed alternatives were entirely rejected. They refrained from taking a stand in regard to the area north of Robinson’s Arch, by reason of the fact that the Agenda itself states that “it would not be possible to conduct prayers in any manner” there. In this they were referring to the position of the Antiquities Authority, which wrote in regard to this proposal that “it would not appear that it would be possible to conduct prayer in any form in this area”. However, the Petitioners’ attorneys added the following comment in regard to the proposal of the Robinson’s Arch site as an alternative prayer venue:

It should be noted that of all the places proposed outside of the Wall Plaza, this is the only area that is adjacent to the Western Wall Plaza that could permit prayer by medium-sized groups of 50 – 100 worshippers, but transforming the place into a real solution would require a will and investment that are not to be found in the Agenda.

            Towards the end of its deliberations, an opinion was presented to the Directors General Committee by the Ministry for Internal Security, which presented the opinions of the Police Commissioner and the Jerusalem District Police Commander. Based upon past experience, the Police expressed its opinion that conducting prayer in the Western Wall Plaza in the manner of the Petitioners “will be perceived as a provocation by the public that regularly prays at the site, will offend the feelings of the worshippers, and will lead to severe breaches of public order at the site”. In regard to the Petitioners’ suggestion that they be granted designated prayer times, the opinion stated that “the suggestion that an appropriate balance be achieved by allocating access times to the Wall has no impact on the position of the Police, inasmuch as the Wall Plaza serves as a prayer space for most of the hours of the day”. However, the opinion also noted that “the Police will do whatever is required and possible in order to ensure public order in any arrangement that the Committee shall establish”.

15.       Thus the Committee reached the end of its deliberations. Reading the final report that it submitted to the Government reveals that relying upon the opinions submitted by the Chief Rabbis of Israel and by the Police, the Committee arrived at the conclusion that it would not be possible to allow the Petitioners to pray in their manner in the Western Wall Plaza. As the Committee states in its conclusion:

The Western Wall, its Plaza and surroundings belong to every Jew as such, and the right to pray at the Western Wall is reserved to them all.

However, the holiness ascribed to the Western Wall by the Jewish People is harmed by dispute, fights and the resort to force in its area, as the Supreme Court noted in its decision in this matter.

The opinion of the Police points to the fact that nothing has changed to date in the factual situation at the Wall, and no arrangement that relates to the allocating prayer times will prevent the harm to public order with very near certainty. It should be emphasized that we are not speaking of the ability of the Police to gain control over the riots, but rather of avoiding them in a respectful manner, and the paths of peace require mutual sacrifices of both sides.

In order to achieve the balance demanded of the Committee in the Government’s decision between freedom of access to the Wall and limiting the violation of the feelings of the worshippers, the Committee has not found the time to be ripe for permitting prayer in the Western Wall Plaza itself that differs from the traditional prayer accepted there.

            In the context of its report, the Committee reviewed four alternative prayer sites in the area of the Wall (the plaza beneath Robinson’s Arch; the area in front of the Hulda Gates; the southeastern corner of the wall of the Temple Mount; and the area of the “Little Western Wall”). The Committee recommended the southeastern corner of the wall of the Temple Mount as the most suitable alternative, and recommended making the necessary preparations to make it suitable for prayer.

16.       When the petition was rescheduled for a hearing on April 15, 1996, the Court granted the request of the State Attorney’s Office and adjourned the hearing once again. The decision stated that inasmuch as the conclusions of the Directors General Committee had been submitted to the Government, the Government should be granted reasonable time to decide its position. On April 21, 1996, the Government decided (in Decision no. 777) to take note of the recommendations of the Directors General Committee and appoint a ministerial committee “which will examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government”. The Minister of Justice was appointed as chair of the ministerial committee whose members would be the Minister of Religious Affairs, the Minister of Education, Culture and Sport, the Minister of Internal Security, and Ministers Beilin and Amital.

17.       However, before the ministerial committee could accomplish anything at all, elections were held for the fourteenth Knesset, pursuant to which a new government was formed. When the Petitioners learned that the new government was in no hurry to renew the treatment of their matter, they submitted a request to amend their petition. In the framework of the amended petition, the Petitioners request to add an additional remedy that if the Government ultimately decide not to permit the Petitioners to pray at the Western Wall in accordance with their custom, the Court will be asked to establish the arrangements for the realization of the Petitioners’ right of access and worship at the Western Wall. In its session of Oct. 24, 1996, the Court decided to amend the petition as requested by the Petitioners. At the same time, the Court accepted the State’s request to postpone the hearing of the petition “for a period not to exceed four months”, so that “during the adjournment the Respondents will make every effort to reach a solution to the problem in a manner that will also be acceptable to the Petitioners”.

            But the developments did not meet expectations. In a notice submitted on behalf of the Attorney General in advance of the hearing set for March 4, 1997, we were informed that a meeting was held in the Attorney General’s Office on Nov. 28, 1996, in which the four alternatives mentioned in the report of the Directors General Committee were considered. We learned from the notice that the meeting was held against the background of the conclusion of the Directors General Committee that “for reasons of maintaining public order, the Petitioners cannot be permitted to pray in the Western Wall Plaza, in view of the uniqueness of the site as a Holy Place that requires not violating the feelings of the worshippers and preventing of severe disturbances of the peace”. Under those circumstances, “a decision was reached according to which it would be possible to offer the Petitioners an appropriate alternative site in which they will be able to realize their desire to pray in accordance with their custom, in two sites in the area of the archaeological park” – the “Hulda Steps” and the southwestern corner of the Western Wall that is referred to as “Robinson’s Arch” – but “without granting them any ‘possession’ whatsoever over any specific place in that area”. The Respondents’ response to that offer, which was also included in the Attorney General’s notice, stated that without prejudice to their demand to realize their right to access and to worship in the Western Wall Plaza, and despite the fact that the “Robinson’s Arch” site is not fit to serve as a respectable prayer venue in its current state, the Respondents are willing “to consider an official offer to convert the Robinson’s Arch site into a respectable prayer plaza similar to the Western Wall Plaza in its current state, including a separate women’s section, such that the Robinson’s Arch site will become directly contiguous to the prayer plaza on the western side of the Temple Mount” (emphasis original – E.M.). The notice also stated that when the Attorney General received the Respondents’ response, he also received a request from the World Union of Progressive Judaism in regard to “the demand of heterodox Jewish congregations from Israel and around the world to pray in the Western Wall Plaza in their manner”. Against that background, the Court was asked to grant the State additional time to consider its position. However, in its session on March 4, 1997, the Court decided to issue an order nisi on the basis of the amended petition.

18.       Decision of the Ministerial Committee for Jerusalem: By the time of the submission of the Respondents’ affidavit in response to the petition on June 10, 1997, the Petitioners’ matter was brought before the Ministerial Committee for Jerusalem. On June 2, 1997, the Committee issued a decision (Decision no. Jm/15). The protocol and decision stated as follows:

Jm/14.              Prayer Arrangements in the Western Wall Plaza in regard to the Petition in the HCJ of the “Women of the Wall”:

The Director General of the Ministry of Justice reviews the subject and the progress of its treatment to date, including in the Directors General Committee and the special Ministerial Committee established at the time in accordance with the Government’s decision.

Present: Prime Minister Benjamin Netanyahu, Ministers Eliyahu Suissa, Zevulun Hammer, Moshe Katzav, Dan Meridor, Tzachi Hanegbi, David Levi, Deputy Minister Aryeh Gamaliel, Mrs. Nili Arad and the honorable Ehud Olmert, Amir Drori, Israel Police Jerusalem District Commander Yair Yitzchaki, and the head of the Jerusalem District of the GSS.

Decided:

1. To record the notice of the Prime Minister according to which the Government of Israel recognizes the right to freedom of worship and religion of every person, including the Petitioners.
2. To find that in reliance upon the evaluation of the Israel Police, the prayers of the Petitioners, in accordance with their custom, cannot be permitted in the Western Wall Plaza, and that in accordance with the evaluation of the other security services that was recently presented, a change of the status quo in regard to prayer arrangements in the alternative suggested sites may lead to a danger to public safety.
3. In accordance with the aforesaid, to maintain the existing situation unchanged for the present. To act to examine the possibility of arranging an appropriate alternative prayer site, and to request a postponement of the Court proceedings for an additional three months for the purpose of examining the situation of the proposed sites from the security standpoint.
4. The evaluation of the security agencies will be brought for further discussion by the Ministerial Committee for Jerusalem, and for a decision on the matter.

Recommendation of the Neeman Committee

19.       The petition was set for hearing on Sept. 24, 1997. In their summary pleadings, the Respondents offered to permit the Petitioners to pray in one of two alternative sites. The first was the “Robinson’s Arch” area, with the proviso that “the status quo at the site will not be violated, in the sense that the site will not become an organized, declared place of prayer, but rather part of the current normal operation of the site, and all subject to security considerations at any time”. The second, “a site located adjacent to the entry gates to the Western Wall Plaza, on the southwestern side, from which it is possible to see the Wall, and in which it will be possible to provide police protection for the Petitioners”. The Respondents argued that:

These suggestions are necessitated by reality after striking the required balance among the various and conflicting interests of the relevant parties, and in order that the holiest place of the Jewish People not become a dispute zone to the point of desecration and violation of the feelings, dignity and physical integrity of the worshippers at that place.

Alternatively, the Respondents offered to have the Petitioners’ issue reconsidered by a committee chaired by Minister of Finance Yaakov Neeman who, at the time, was chairman of a committee preparing recommendations in the matter of conversion to Judaism. The Petitioners initially rejected this offer. However, as a result of our comments, and after offering to appoint their representatives to the committee, they agreed to give dialogue another chance.

            In a preliminary meeting held on Nov. 11, 1997 in the office of Minister of Finance Neeman, it was suggested that the committee that had been appointed to address the issue of conversion also address the matter of the Petitioners. The Petitioners once again rejected the proposal, arguing that “this committee is a committee for establishing policy, whereas in their matter what is required is a committee that will solely decide upon the means for executing an established policy”. However, following a further clarification of the matter in a hearing before the Court on Nov. 26, 1997, the parties authorized the Neeman Committee to address the dispute on the merits, with the understanding that due to the importance of the subject, its complexity and difficulty, it would be proper to exhaust this avenue for addressing it out of Court with the objective of amicably reaching an agreed arrangement.

20.       The Neeman Committee held for meetings and visited the Wall area. On Sept. 23, 1998, the Committee presented a report summarizing its conclusions. By a majority, the Committee rejected prayer according to the custom of the Petitioners at the Wall. This view was grounded upon the opinion of the Jerusalem District Police Commander and his assistants according to which “prayer in the women’s section of the Wall Plaza will lead to riots and serious breaches of public order, based upon past experience and in light of evaluations based upon the current situation”. The Committee noted the view of Deputy President M. Elon in the First Judgment according to which “prayer by the Women of the Wall in the Western Wall Plaza would be contrary to the local custom”, and that “this is not the place for making the change demanded by the Women of the Wall in traditional prayer practices”. The Committee added that “conducting prayer in the Wall Plaza in the presence of police or with its active intervention would itself constitute a serious violation of the feelings of all the worshippers and a desecration of the holiness of the site for all its visitors”. Further on, the Committee also noted the fear that acceding to the Petitioners’ request might “constitute a precedent for demands to conduct other prayer services that are different from those of the Women of the Wall”.

            Against the background of the said conclusion, the Committee set out to examine the appropriateness of the four alternative prayer sites: the area of the parking lot adjacent to the entrance to the Western Wall Plaza; the site located to the south of the Western Wall Plaza known as the “Southern Wall”; the “Flag Plaza” site – the plaza adjacent to the prayer plaza at the Western Wall in which the State flags are flown; and the “Robinson’s Arch” site. The Committee found various shortcomings in the first alternative. The second alternative was rejected due to its great distance from the Western Wall Plaza. While many advantages were found in the third alternative, it was discounted due to the position of the Police that “prayer by the Women of the Wall at the site will lead to riots and serious breaches of public order”. The Committee’s choice was the “Robinson’s Arch” site. In listing the advantages of this alternative, the Committee pointed out, primarily, that the site constitutes a direct continuation of the Western Wall Plaza, and in that it “touches the Western Wall and is linked to it … the worshippers at the site will enjoy direct access and contact with the Western Wall”. It was further noted that the site, which was adapted for accommodating large numbers of visitors, actually hosts many visitors every day. It was clear to the Committee that conducting prayer at this site would have to meet the demands of the Antiquities Authority and the East Jerusalem Development Corporation, which opposed any change of the site’s character, which is part of an archaeological park and a focus of attraction for many researchers and visitors. On the basis of all of the above, the majority of the Committee’s members arrived at the conclusion that:

The solution of conducting prayers at the “Robinson’s Arch” site is the most practical solution for the needs and demands of the Women of the Wall. That is the case after weighing the advantages and disadvantages of each of the above alternatives. This was accomplished by weighing and balancing the need to find an appropriate prayer site that would meet the needs and demands of the Women of the Wall, and the important principle requiring the avoiding of violation of the feelings of the worshippers at the Western Wall Plaza and not violating the local custom.

21.       It should be noted that the representatives of the Petitioners in the Committee’s meetings completely rejected all of the suggested alternatives, and insisted upon the realization of the Petitioners’ right to conduct prayers in accordance with their custom in the women’s section of the prayer plaza at the Western Wall. The Petitioners’ representatives repeated the suggestion, which that had previously raised before the Directors General Committee, to allocate a designated prayer time for them at the Wall: one hour every Rosh Hodesh, except for the Rosh Hodesh of the month of Tishrei, and all together eleven hours a year. But that suggestion was not accepted.

 

The Hearing on the Petition

22.       Under these circumstances – nearly four years after its submission – the petition returned for the Court’s decision. The original reason for its submission (the failure to submit the report of Directors General Committee on time) was no longer relevant, and the petition now focused upon the request for relief that was added to the petition when it was amended (on Oct. 24, 1996), i.e., that if the Government of Israel should decide against allowing the Petitioners to praying accordance with their custom at the Western Wall, then the Court will be asked to establish the arrangements for the realization of the Petitioners’ right of access and worship at the Western Wall.

            In advance of the date of the hearing, which we set for Feb. 17, 1999, the parties completed their summary pleadings. Reading the written material and hearing the oral arguments of the attorneys revealed that the source of the dispute between the parties is to be found in their different understanding of the decision made in the First Judgment. The underlying assumption of the Respondents was that while the First Judgment recognized the right of the Petitioners to access and pray at the Western Wall in principle, it did not recognize their right to realize their right to access and worship in practice. The Judgment left this matter to the decision of a committee that would be appointed by the Government. The matter was actually examined by three committees, and they all reached the conclusion that conducting prayer in accordance with the custom of the Petitioners in the Western Wall Plaza would involve a real danger of friction and violence. For that reason, the committees focused upon finding an alternative prayer site in the vicinity of the Wall. The Respondents argued that the recommendations of the Neeman Committee to allow the Petitioners to conduct their prayers at the site beneath Robinson’s Arch reflects a balance between satisfying the Petitioners’ right and other relevant considerations, inasmuch as adopting this recommendation will allow the Petitioners to pray at a site that is a part of the Western Wall, without any affront to the feelings of the worshippers at the Western Wall Plaza itself, and without raising the real fear of friction and violence that would desecrate the holiness of the site. On the basis of the position, the Respondents ask that the petition be denied.

23.       The Petitioners argued that the parameters of the balancing formula were established in the First Judgment. According to that formula, the balance between the Petitioners’ right of access to the Western Wall and the expected harm to the feelings of other worshippers requires a solution that will realize the Petitioners’ right to pray in the Western Wall Plaza, but that will reduce the harm to the feelings of the worshippers. The recommendation of the Neeman Committee was premised upon a different basis: the assumption was that it must refrain from a solution that would involve any harm to the feelings of all the other worshippers. Therefore, it recommended a solution that denied the Petitioners the ability to realize their recognized right of access to the Western Wall. The Petitioners further argued that the recommendations of the Neeman Committee were never presented to the Government for approval, and therefore they do not implement the directions of the First Judgment.

            The Petitioners also rejected the proposal to conduct their prayers at the Robinson’s Arch site on the merits. The site, which is detached from the Western Wall Plaza, is in the midst of an archaeological park. Access to the site by the handicapped and persons with other disabilities is very difficult, and the place itself is too small to accommodate all those who worship according to the custom of the Petitioners. The site, which is a popular tourist attraction, is visited by hundreds of visitors every day, all of whom use one narrow passage way for two-way movement (entrance and exit). Conducting prayer on that passageway, exposed to constant friction with the visitors and tourists, is impossible. Moreover, access to the Temple Mount wall at the site, which is a direct continuation of the Western Wall, is blocked and not possible. Thus, the recommended solution does not even partially realize the Petitioners’ right to pray at the Western Wall.

24.       It appears to us that in this dispute between the parties in regard to the import of the decision given in the First Judgment, the Petitioners are correct. As we already noted (in para. 8, above), according to the division of opinions in the Judgment, two of the justices agreed and were of the opinion that the Petitioners have a right to pray in accordance with their custom at the Western Wall, while the difference between their approaches was expressed only in that while Levin J. was ready to issue a decision declaring that right of the Petitioners, Shamgar P. was of the opinion that before rendering a judicial decision, other paths to an agreed arrangement should be exhausted. The petition was, therefore, denied by a majority, but that denial of the petition was made subject to the recommendation of Shamgar P. that the Government appoint a committee that would be instructed “to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers”. It is not superfluous to emphasize that “freedom of access to the Wall”, as per Shamgar P., must be understood as the right to pray at the Wall in the special manner and style of the person requesting to do so. That is required by the President’s approach, which we earlier addressed, that striving for “a common denominator for all Jews, whomever they may be” does not mean adopting and imposing the strictest approach, but rather “sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it” (p. 355 of the Judgment). That is required by the President’s interpretation of “local custom”, by which, “[t]he legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner” (loc. cit.). The clear position that arises from an examination of the statements of Shamgar P. and Levin J. – and we concur with that position on the merits – is that the Petitioners have a right to pray in accordance with their custom in the Plaza beside the Western Wall.

25.       Indeed, in enunciating his position in the First Judgment, Shamgar P. was not unaware that conducting prayer according to the custom of the Petitioners at the Western Wall would involve an affront to the feelings of other groups of worshippers. For that reason he felt it appropriate to appoint a committee that would be tasked with finding a solution that would reduce that affront. But note: reducing the affront, and not preventing it in its entirety. That is so, inasmuch as completely preventing the affront to the feelings of other worshippers cannot be achieved except by denying the right of the Petitioners, a result that is rejected in the President’s opinion as being identical to “adopting and imposing the strictest approach” and would constitute “barring the way” before the good-faith realization of the right of anyone wishing to pray in his own special way. It should be noted that the fear of a violent reaction by extremist elements among the worshippers in the Western Wall Plaza was not mentioned in the President’s recommendation as a consideration that might justify denying the Petitioners their right to pray according to their custom at the Western Wall. From the President’s statement in regard to the need to act with tolerance, one can readily deduce that his approach in this regard is no different than that of Levin J. that “no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them”, and that “it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its Plaza may fully realize their rights without unnecessarily violating the feelings of others".

26.       It should be noted that the Government’s decisions in the matter (that preceded the report of the Directors General Committee) were based upon a correct understanding of the First Judgment. In its decision to appoint the Directors General Committee, the Government instructed the Committee “to propose a possible solution that will ensure freedom access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site”. The Government’s decisions to extend the deadline set for submitting the conclusions of the Directors General Committee also spoke of a committee whose task was to present recommendations “in regard to finding a solution for prayer arrangements in the Western Wall Plaza”. In other words, the mandate of the Directors General Committee was to find a solution that would allow the Petitioners to realize their right to pray in the Western Wall Plaza, while reducing the affront to the feelings of other worshippers. But the Directors General Committee chose a solution that was different from the one it was requested to develop and propose. It granted decisive weight to the position of the Police, which warned of the possibility that the Petitioners’ prayer in the Western Wall Plaza would lead to violent opposition and cause extreme, severe breaches of public order. In light of that evaluation, the Committee concluded that the Petitioners could not be allowed to conduct prayers in the Western Wall Plaza in a manner different from the traditional prayer that is customary there, and therefore recommended satisfying the Petitioners with the allocation of an alternative prayer venue. But the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

            The committees that followed the Directors General Committee – the Ministerial Committee for Jerusalem, as well as the Neeman Committee – pursued the same path. The common denominator of the recommendations that were presented by all of the committees that addressed the matter was expressed by the conclusion that the balance between the Petitioners’ right to pray in the Western Wall Plaza, and the harm that the Petitioners’ prayer will cause to others and the opposition that will be aroused can only be found in removing the Petitioners from the Western Wall Plaza and forcing them to suffice with this or that alternative prayer venue. Needless to say that these recommendations too – like the recommendation of the Directors General Committee – deviated from the balancing formula in the First Judgment.

            It would not be superfluous to note that even in explaining the reasons for their conclusions, the honorable committees drifted to views that were rejected by the majority of the justices in the First Judgment. Thus, for example, in arriving at its positon, the Directors General Committee ascribed weight to the verdict of the Chief Rabbis that “there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”. That position, sanctifying the “status quo”, was supported in the First Judgment only by the Deputy President, Justice Elon, but was entirely rejected by Shamgar P. and Levin J. This comment is equally applicable to the balancing formula followed by the Neeman Committee, which also granted weight to the consideration of “not violating the local custom”. Particularly perplexing was the comment of the Directors General Committee that “the paths of peace require mutual sacrifices of both sides”, inasmuch as by its recommendation that the Petitioners be removed entirely from the Western Wall Plaza, the Committee expressed the opinion that only the Petitioners are required – for the sake of peace – to sacrifice everything, whereas the groups opposing the presence of the Petitioners – the fear of whose violent reaction led the Committee to seek a different solution from that it was asked to recommend – are neither asked nor expected to make any sacrifice.

27.       Prior to the hearing of the petition, the Respondents presented us with the affidavit of Deputy Commissioner Yair Yitzchaki, the Israel Police Commander of the Jerusalem District. In his affidavit, Deputy Commissioner Yitzchaki reiterates the position that the Police presented to the Directors General Committee, the Ministerial Committee for Jerusalem and the Neeman Committee. According to that position, “prayer of the Women of the Wall, as requested by them, including the suggestion of conducting prayer for a limited period of time, once a month on Rosh Hodesh, is likely, to a near-certain probability, to lead to violent steps by worshippers at the site and to cause large riots, breaches of public order, and a real danger to the safety of the worshippers”. That evaluation, which rests primarily upon past experience, was reiterated by the Deputy Commissioner in his oral explanation in the hearing before the Court. However, he also noted that, as stated in the opinion submitted by the Police to the Directors General Committee, the Police would employ all measures at its disposal to enforce any arrangement ultimately decided upon.

            We are of the opinion that in arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign. We cannot reconcile with a situation in which fear of the violent reaction of any sector of the public will lead to the denial of the possibility of another sector to realize its given rights. It is not inconceivable that, in given circumstances, the Police may prevent a person or a group from realizing a right where there is a real basis for the fear that realizing the right will lead to a violent outbreak that may breach the public peace, and where the Police is unable to prevent such dire consequences by reasonable means. But – as Levin J. noted in the First Judgment – “no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition”.

 

Visit to the Site

28.       In the course of deliberation prior to rendering judgment, we decided that before deciding the upon the petition, we would do well to visit the Western Wall Plaza and the various sites offered the Petitioners as alternatives at various stages, together with the parties and their attorneys. In terms of principle, making such a visit was unnecessary inasmuch as the Petitioners’ right to pray in accordance with their custom at the Wall was already recognized, in practice, in the First Judgment. Nevertheless, we saw reason to gain a first-hand impression of the alternative prayer venues offered to the Petitioners, first, in order to find out whether any of the alternatives offered to the Petitioners might be considered at least approximate realization of the right to worship in the Western Wall Plaza, and second, in view of the position of the Petitioners themselves, whose comments on the “Agenda for Discussion” of the Directors General Committee might lead to the possible conclusion that if the authorities had acted to turn the Robinson’s Arch site into a prayer space similar to that in the Western Wall Plaza, the Petitioners might have sufficed with that alternative prayer venue.

            On Feb. 1, 2000, we visited the Western Wall Plaza and all of the alternative prayer sites: the Robinson’s Arch plaza, the Southern Wall area, the Hulda Gates and the steps leading up to them, the southeastern corner of the Temple Mount, and the parking lot adjacent to the entrance to the Western Wall Plaza. We were accompanied by representatives of the Petitioners, the parties’ attorneys, a representative of the Attorney General, the Director General of the National Center for Development of the Holy Places, the Director of the Antiquities Authority, the Director General of the East Jerusalem Development Corporation, and representatives of the Israel Police. On the basis of what we saw, and after hearing the explanations and comments of the parties and the others accompanying us in regard to the various sites, we find that not one of the alternatives suggested and considered at various stages of the proceedings can be viewed as even partially realizing the right to worship in the Western Wall Plaza. The Robinson’s Arch site – the only site that is worthy of consideration – is part of the archaeological park. Had the authorities acted to adapt it to serving as a prayer space, it may have been possible to view it as a kind of continuation of the prayer area beside the Western Wall. However, adapting the site to serve as a prayer space would involve substantial harm to the existing character of the site. The Antiquities Authority firmly objects to that, and we would counsel the Government not to ignore that position.

29.       Having found that, in fact, the First Judgment recognized the right in principle of the Petitioners to conduct prayers in accordance with their custom in the prayer plaza beside the Western Wall, and that the committees that addressed the subject of the petition following the First Judgment did not do what they were intended to do in accordance with the instructions of that judgment, we are faced with the question of how to decide in the matter of the petition at bar. The attorneys for the Petitioners hoped to convince us that in order to put an end to the extreme foot dragging that characterized the treatment in the matter of the Petitioners, it would be appropriate for the Court to establish arrangements that would allow the Petitioners to realize their right to worship at the Western Wall site. With all due understanding of the Petitioners’ distress, we cannot accede to that request. The establishing of appropriate arrangements that will realize the Petitioners’ right to access to the Western Wall and worship there should properly and primarily be made by the Government. It would not be appropriate, at this stage, for us to establish such arrangements, both because establishing them prior to the issuance of a Government decision in the matter was not included in the petition, and because the Court does not have all of the necessary information for establishing them. Needless to say, the Petitioners’ retain the right to petition again in this matter, if and when there is cause.

30.       We therefore decide to issue an order absolute on the petition, instructing the Government to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza. For the sake of further clarification, we will add that the required decision is only in regard to the concrete conditions in order to enable the Petitioners to pray in accordance with their custom in the Western Wall Plaza, such as the place and times in which they may do that, while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements. In view of the fact that the treatment of the matter of the Petitioners extended, to date, over a prolonged period, the Government is requested to complete its handling of the establishing of the arrangements for their prayers in the Western Wall Plaza, without conditioning it upon establishing arrangements for other groups, within six months of the day of this decision. The State will pay the Petitioners’ costs for this petition in the amount of NIS 20,000.

                                                                                                           

Justice T. Strasberg-Cohen:

I concur.

 

Justice D. Beinisch:

I concur.

 

Decided in accordance with the opinion of Justice E. Mazza.

Given this 17^th day of Iyar 5760 (May 22, 2000).

 

 

 

In the Supreme Court

Sitting as the High Court of Justice

       HCJ 466/07

HCJ 544/07

HCJ 830/07

HCJ 5030/07

Before:                                            Her Honor, President D. Beinisch

                                                                   His Honor, Deputy President E. Rivlin

                                                                   His Honor, Justice (ret.) E.E. Levy

                                                                   His Honor, Justice A. Grunis

                                                                        Her Honor, Justice M. Naor

                                                                        Her Honor, Justice E. Arbel

                                                                        His Honor, Justice E. Rubinstein

                                                                        His Honor, Justice S. Joubran

                                                                        Her Honor, Justice E. Hayut

                                                                        His Honor, Justice H. Melcer

                                                                        His Honor, Justice N. Hendel

 

Petitioner in HCJ 466/07:                     M.K. Zehava Gal-On

Petitioner in HCJ 544/07:                     The Association for Civil Rights in Israel

Petitioners in HCJ 830/07:                   1.         Ranin Tawilla

2.       Hattam Tawilla

3.       Assalla Tawilla

          4.         Mahmoud S’bihat

5.       Dima Tawilla

6.       Ulla Tawilla

7.       Ahmed S’bihat

          8.         Mahmad S’bihat

9.    Adalah – Legal Center for Minority Arab Rights in Israel

Petitioner in HJC 5030/07:       Hamoked – Center for the Defense of the Individual, Founded by Dr. Lotta Salzberger (A.R.)

 

                                                            v.

 

Respondents in HCJ 466/07     1.        Attorney General

                                                            2.         Minister of the Interior

                                                            3.         Israel Knesset

Respondents in HCJ 544/07     1.        Minister of the Interior

and HCJ 5030/07                     2.        Commander of the Military Forces in Judea and Samaria

                                                  3.        Head of Southern Command

Respondents in HCJ 830/07     1.        Minister of the Interior

                                                  2.        Attorney General

 

Requesting to Join as                          1.         Fence of Life Movement: For the Construction Respondents                                                                   of a Separation Fence

                                                  2.        Shurat Hadin – Israel Law Center

                                                  3.        Im Tirzu – Building the Zionist Dream

                                                  4.        Movement for Renewed Zionism

 

Petitions for an Order Nisi

 

Date of Sessions:                      Nissan 2, 5767                       (March 21, 2007)

                                                  Heshvan 12, 5768      (October 24, 2007)

                                                  Nissan 30, 5768                     (May 5, 2008)

                                                  Adar 19, 5769                       (March 15, 2009)

                                                  Adar 16, 5770                       (March 2, 2010)

 

On behalf of the Petitioner in HCJ 466/07:	Adv. D. Holz Lechner; Adv. Tali Aviv
On behalf of the Petitioner in HCJ 544/07:	Adv. D. Yakir; Adv. S. Abraham-Weiss; Adv. O. Feller
On behalf of Petitioners in HCJ 830/07:	Adv. H; Joubrin; Adv. S. Zohar
On behalf of the Petitioner in HCJ 5030/07:	Adv. Y. Ben-Hillel; Adv. Y. Wolfson; Adv. L. Bechor
On behalf of Respondents 1 & 2 in HCJ 466/07, and Respondents in HCJ 544/07, HCJ 830/07, and HCJ 5030/07:	Adv. Y. Genessin; Adv. A. Licht; Adv. N. Ben-Or
On behalf of Respondent 3 in HCJ 466/07	Adv. R. Sherman-Lamdan
On behalf of Request to Join no. 1:	Adv. I. Tsion
On behalf of Request to Join no. 2:	Adv. L. Azar; Adv. A. Chen
On behalf of Request to Join no. 3:	Adv . J. Reshef; Adv . A. Baruch
On behalf of Request to Join no. 4:	Adv . K. Neumark

 

Israeli legislation cited:

Citizenship and Entry into Israel Law (Temporary Order), 5763-2003

Basic Law: Human Dignity and Liberty

Foreign legislation cited:

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act, 2001

Israeli Supreme Court cases cited:

[1]        HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [2006] IsrSC 61(2) 202.

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

[3]        HCJ 6427/02 Movement for the Quality Government in Israel v. Knesset [Nevo – 11.05.2006].

[4]        HCJ 2605/05 Human Rights Division v. Minister of Finance [Nevo – 19.11.2009].

[5]        HCJ 6126/94 Szenes v. Matar [1999] IsrSC 53(3) 817.

[6]        EA 2/84 Nayman v. Chairman of the Central Elections Committee for the Eleventh Knesset [1985] IsrSC 39(2) 225.

[7]        CrA 6669/96 Kahana v. State of Israel [1998] IsrSC 52(1) 535.

[8]        HCJ  8276/05 Adalah, Legal Center for Minority Arab Rights in Israel v. Minister of Defense [2006] IsrSC 62(1) 54.

United States cases cited:

 [9]       Hiabayashi v. United States, 320 U.D. 81 (1943)

[10]      Terminiello v. City of Chicago, 337 U.S.I.

[11]      Texas v. United States, 523 U.S. 296, 300 (1998).

[12]      Baker v. Carr, 369 U.S. 186, 217 (1962).

[13]      Clark v. Suarez Martinez, 543 U.S. 371, 386 (2005).

[14]      Fiallo v. Bell, 430 U.S. 787, 792 (1972).

[15]      Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

[16]      Zadvydas v. Davis, 522 U.S. 678 (2001).

[17]      Lochner v. New York, 198 U.S. 45 (1905).

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

[19]      New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[20]      Schenck v. United States, 249 U.S. 47 (1919).

Other foreign cases cited:

[21]      Kiyutin v. Russia, no. 2700/10, ECHR (2011) – 111 (European Court of Human Rights).

[22]      Pfizer Animal Health SA v. Council of the European Union, (Case T-13/99) [2002] ECR II-3305 (European Court of Human Rights).

 [23]     Libman v. Attorney General of Quebec [1997] 3 S.C.R. 569 (Canada).

                                                           

 

Judgment (Abstract)

Justice (Ret.) E.E. Levy

 

The State of Israel … will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex (…)

We appeal - in the very midst of the onslaught launched against us now for months - to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship (from the Declaration of Independence, 14.5.1948).

 

The Background and Pleadings

1.    Exactly 58 years after these words were written, on 14 May 2006, this Court expressed its position on the Citizenship and Entry into Israel Law (Temporary Order) that was enacted by the Knesset in 2003 (hereinafter: the Law). A majority of six of the eleven Justices found the Law to be unconstitutional, ruling that it unlawfully violated the right to equality of Israel’s Arab citizens and the constitutional right to family life (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [1] (hereinafter: Adalah Case). The Law was not declared void, and the Knesset was given time in which to amend it. That was five years ago. To this day the Law has not been amended as required.

2.    We have before us four petitions to invalidate the Law. It is argued that the Law is unsuited to the democratic paradigm, and does not implement the conclusions of the case law regarding the illegitimacy of the blanket restriction of the aforementioned rights. The Law discriminates between persons on the basis of nationality and ethnic affiliation, and does not reflect a willingness to take the risks that are inherent in the strict maintenance of basic human rights in general, and of the rights of the minority in particular. The respondents, on the other hand, are convinced that the Law comports with the complex reality in which Israeli democracy has been rooted since its very inception, and especially during the past decade –  years of terror that have been tantamount to outright war. In their view, prevention of immigration of enemy subjects into the territory of the State is imperative. The claim is that the security risk cannot be removed by means of individual checking. Instead, the Law which is under scrutiny at present has adopted a system of profiling – a system which is neither arbitrary nor sweeping, but which relies on the characteristics that are shared by terrorists, and which is capable of predicting risks and protecting the lives of Israelis.

Personally, it is unclear whether the line of argument taken by the State in its response – the security line – actually supports its position. Nevertheless, I too will limit this hearing to the parameters of the dispute as delineated in the respondents’ pleadings. Questions not yet ripe for resolution, such as, for example, the question of the composition of the Israeli population or the appropriate nature of an arrangement for immigration to Israel, will be left until their time arrives. I will just say that the character of the Law is reflected in the statements made on behalf of the Government by the Deputy Attorney General in the Knesset Interior Committee: “This provision was accepted by the Government for security reasons and due to an accelerated process of settlement of ten thousands of Palestinians in the State of Israel” (Knesset debate of 14 July 2003, emphasis added).

 

The Citizenship and Entry into Israel Law

3.  The core provision of the Law places limitations on the granting of status in Israel or a permit to remain therein to Palestinians who are inhabitants of the Territories, and to those who come from enemy states.

 

Limitation of citizenship and residence in Israel

During the period in which this Law shall remain in force, notwithstanding any legal provision, including sec. 7 of the Citizenship Law, the Minister of the Interior and the military commander shall not grant [to a Palestinian inhabitant of the Area] or to a citizen or resident of a state specified in the Schedule [Iran, Iraq, Syria and Lebanon] citizenship, nor will they grant him a permit to reside in Israel.

This blanket prohibition, from which Israeli residents of the Territories were excluded (sec. 1 of the Law), included a number of exceptions: Palestinian males over the age of 35 and Palestinian females of at least 25 years of age; minors up till the age of 18; a person who remains in Israel for purposes of work or medical treatment; and a person who identifies with the State or who has contributed to the advancement of its goals. Most of those applying for family reunification are not included in those categories.

The exceptions were included in the Law before it underwent judicial review on the previous occasion, when it was found to be disproportional. In the wake of the judgment, the Law was amended, but the amendment did not resolve the difficulty and in certain respects even aggravated it. A committee was established to consider exceptional humanitarian cases, and it was authorized to make a recommendation to the Minister of the Interior to permit temporary residence or a stay in Israel for special reasons. The Minister was authorized to establish a maximum yearly quota of such permits. The Humanitarian Committee approved only 33 of the more than 600 applications submitted to it, about one percent of an average of 3,000 applications for permits filed in each of the years that preceded the commencement date of the Law. The amended Law further provided that a person was liable to constitute a security threat to the State of Israel not only when there was information about him or a member of his family presenting a specific risk, but even if activity posing a threat to security “was carried out in his state of residence or in the area in which he lives.”

On Foundational Values and their Constitutional Expression

4.    Constitutional review seeks out the fundamental values upon which the political and social framework of the Israel is premised. All of these come together to form a broad conception which provides a common basis for the members of the nation, strives for coherence in sketching out the national story and records its defining features. This conception provides legitimacy for the existence of the nation, conferring upon it unique significance that distinguishes it from other nations. From this conception is derived – for the future as well – the image of the nation, the various developments of which are but a logical and ongoing sequence of chapters of the foundational narrative on which it is based. This idea was eloquently expressed by Dr. Sharon Weintal:

 

Looking backwards, the “foundational narrative” presents [the] historical events that preceded the establishment of the nation in the framework of a state, and provides the background and the justification for this development, such that the entire development is perceived to be a natural, obvious and legitimate one. From the current perspective, the “foundational narrative” presents the identity of the nation, as it was shaped in the process of its establishment, an identity that reveals the preferred way of life, common values, aspirations and purposes of the members of the political community, which are intended to guide those charged with the administration of the political framework. Looking to the future, the “foundational narrative” invites future generations to write their own unique chapters in the common story, without detracting from the logical sequence of the story, to change without becoming detached from the sources of the communal tradition (Sharon Weintal, “Eternal Clauses” in the Constitution: the Strict Normative Standard in Establishing a New Constitutional Order (Ph.D. Thesis, The Hebrew University of Jerusalem, 2005).

 

Identification of the nation’s foundational values is effected on the basis of the core conceptions of its people, its dominant and timeless values, foundational events, documents of special significance, its basic laws, its historical legacy and the consciousness that shapes its image. The foundational values express a broad cross-generational consensus. They reveal themselves from time to time in various scenarios occasioned by the life of the nation. They are written and updated from time to time. Each one of the governmental authorities is a partner, in accordance with its part and role, in their emergence, as well as in influencing their character.

5.    A conception that is concerned with the existence of foundational values raises, almost automatically, a question regarding their constitutional function. Two possibilities come to mind. The first lies in the idea of a material constitution, in the framework of which the foundational values fulfill their function as though they were constitutional norms, even if they are not anchored thus in writing. It is enough to correctly identify those values in order to recognize their normative weight, which is likely to limit the power – even that held by the legislator – to harm them. In this manner the foundational story may serve as an independent source from which constitutional values may spout. The second possibility rejects recognition of the power of any foundational narrative as an independent basis for the creation of constitutional values, but acknowledges the possibility of invoking this narrative in the interpretation of values which are based in constitutional documents. At the same time, the basic values play an important role in demarcating the borders of protection of the constitutional value. According to this approach, the values which the constitution did not seek, either explicitly or by derivation, to include within the scope of its protection will not merit constitutional status even if they are among the constitutive values of the nation.  However, the constitutional values will view the foundational narrative as a significant factor in determining the scope of their application and the determination of the extent of their protection.

These conflicting approaches found expression in CA 6821/93 Bank Mizrahi Ltd v. Migdal Cooperative Village [2] (hereinafter: Bank Mizrahi Case); in the decision concerning the enlistment into the Israeli Defense Forces of ultra-Orthodox Yeshiva students (HCJ 6427/02 Movement for the Quality Government in Israel v. Knesset [3] and especially in the case of the establishment of private prisons in Israel (HCJ 2605/05 Human Rights Division v. Minister of Finance [4]. In my own judgment in the last case, I remarked that “It might have been argued that recognizing the existence of basic values of the legal system as an instrument of quasi-constitutional review is inconsistent with the positive constitutional arrangement, whereby what has not yet been included in the Basic Laws is equivalent to an expression of negation of constitutional protection for those missing values  (ibid). I would now like to further refine these comments, through the prism of the present case.

There is little dispute that the Israeli constitutional project has not yet been completed, and that the Knesset, as the constitutional authority, retains the power to develop it. One may wonder why this development is necessary if one adopts a conception that recognizes the power of “fundamental values of the system” to constitute, as though out of thin air, new constitutional values.  The logical conclusion, which dovetails nicely with our constitutional tradition, is in fact that whereas the foundational values of Israel cannot engender independent protected values, their import lies in the interpretation of constitutional values in light of their purpose, and in the determination of the extent of protection that they warrant.

In these senses, the constitutional mechanism is an immensely important means for safeguarding the existence of the nation’s foundational values. It confers upon the legal system the power to protect the nation against radical changes to its foundational narrative which threaten to disrupt the sequence of building blocks that make up its story. Constitutional discourse protects the members of the minority from changes of this kind that are adopted by majority decision. It may well protect the rights of the majority from themselves. This mechanism helps identify an infringement of those values following a change that rattles the nation. It may sound the alarm. It may try to help repair the infringement. It is able to protect the normative framework from changes that would make such a violation possible.  However its power is not limitless. This point was made by the late Professor Gualtiero Procaccia:

 

… there is a danger that an ideological regression of a society will be accompanied by an ideological regression of its fundamental legal values. The legal system has no defense against this danger. The legal system in its entirety is a simulacrum of society, and if society changes, then so does the legal system, for good or for bad. Basic [legal] values cannot prevent the deterioration of society – this was not the purpose of their creation. Only the internal powers of society can prevent its deterioration. It is only continuous, uncompromising adherence to the eternal moral values of humankind that can prevent the deterioration of the society. Freedom, equality, and justice are the preliminary fundamental concepts of the legal system and they exist above and beyond it. As long as these moral values reside in people’s hearts, they will prevent the deterioration of the society, but if they do not exist, then it is not within the power of the constitution, the laws and the courts to save them (Gualtiero Procaccia, “Comments on the Changing Contents of Basic Values in Law” 15 Tel Aviv Law Review  (5750) 377, 382).

 

The Israeli Narrative – “Jewish and Democratic State”

6.    A distilled expression of the constitutive narrative of Israel is provided by the phrase “Jewish and democratic state”, which constitutes the keystone of our constitutional law.  The Declaration of Independence, from which I quoted at the beginning of my opinion, provides the outline for the character of the foundational infrastructure of the Israeli nation. The late Justice Haim Herman Cohn wrote of this declaration that it had been “raised to the level of the ‘manifesto’ of the state, in other words, a value unsurpassed by any other, values upon which the founding fathers promised to base the state” (Haim Cohn, “The Values of a Jewish and Democratic State”, Selected Writings (2001) 45, 51-52. It was not by chance that two Basic Laws, which together constitute Israel’s written Bill of Rights, provide as follows:

 

1.   Basic Principles	Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.
1A.   Purpose	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.

 

In the combination “Jewish and democratic state” lies the key to Israel’s self- determination. It is central to its definition, even for the outside observer. It encapsulates the reason for the establishment of the state, and its special character. It is the source of its justified demand for international recognition. It underlies the feeling of Israelis that this is a state that ought to exist, and that being a citizen of this state is worthwhile. It provides the basis for the conclusion that this can be done, despite significant internal tensions.

Filling a fundamental principle with real content is no easy task. Without exhausting the subject I would say that the basis of the foundation of a state is the need to ensure the safety of its citizens. Many a state has been established as a result of the desire of a national group that founded it to realize its right to self-determination. The concept Jewish relates in a concrete sense to the right of the Jewish people to self-determination, as well as to its ability to defend itself from the outside. The basic concepts of Zionism, history, culture, Jewish tradition, and the Hebrew language, as well as a Jewish majority of the population of the state, are some of the components of the “Jewish” part (of the combination). As a democratic framework, the state is committed to a substantive conception of freedom and of equality, to upholding the basic rights of the individual, including those of minority groups, and to open and accessible mechanisms for dialogue and decision-making.

Each of the terms “state”, “Jewish” and “democratic” is the receptacle of an entire complex of constituent values. Occasionally they contradict and compete with each other. The tasks of harmonizing them into a single coherent story occasionally appears as an attempt to square a triangle, the points of which are these three concepts. However, this is inevitable.  The conflicts that arise, like the attempts to resolve them, are an integral part of the Israeli story. Even though each of these values per se can be described as integral, complete and absolute, this is not necessarily true with respect to the extent to which each is protected. This extremely complex formula, into which the values of the Jewish and democratic state are compacted, cannot allow any one of the values involved to occupy the entire space or to act as though it existed in a vacuum. Absolute protection for any one of the values threatens to destroy the entire equation. A suitable and appropriate balance increases the prospects for its success. This element of balance also serves as a constitutive value in our system.  The story of the Jewish and democratic state is a delicate and complex story of balancing between its different components, and just as it cannot tolerate the absolute foregoing of any of these components, neither can it agree to a sweeping and absolute dominance of any one of them. As such, while there may be situations in which the extremities of aspects of a central value in our legal system may find themselves extending beyond the foundational Israeli tapestry, the essence of that value, the nucleus around which its most salient elements revolve, cannot be missing from our constituent story. Harm done to this core cannot but disrupt the delicate balance upon which the Israeli equation is based. Detracting from elements located in this nucleus of the foundational value cannot coexist with the fundamentals of our system. Abandonment of the fundamental, classical elements cannot be squared with the notion of a Jewish and democratic state.

7.    The foundational values may assume different forms and appear in various ways. Jurisprudence has developed various mechanisms for choosing between competing values, according to their nature and the nature of the conflict between them. In balancing between a foundational value in the form of an important public interest and a constitutional right of the individual, the limitation clause of the Basic Laws comes into play. Competition between these values is settled in light of the principle that permits the breach of a right only for the purpose of realizing an important public principle, provided that the extent of the violation does not exceed that which is required. Deciding between competing values, which is contrary to the notion of the proper purpose and proportionality, is not consistent with the foundational  narrative. The constitutional mechanism must fix this.

Constitutional Review

8.    In its attempts to determine whether a violation of a protected constitutional norm is appropriate, the constitutional mechanism of the limitation clause establishes a hierarchy in the form of a funnel: “by a law, befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” This graduated structure is comprised of normative filters, which become progressively finer and denser. The test moves from the difficult to the easier. The more blatant the deviation from the constitutional order, the sooner will the norm in question be caught in the constitutional filter. Violations that involve more complex questions of constitutionality will need to continue further along the path of the limitation clause. The advantage of this structure is found in the signal it emits, both to the legislator and to the court, concerning the depth of the violation of the constitutional order, in the indication it provides with respect to the proper way of dealing with this violation. The establishment of the “geographical location” of the violation affords the legislator a better understanding of the nature of the change that it must make to the law in order to render it constitutional. This structure helps the court to select the proper relief, for the graver the violation of the normative order, the more immediate and definitive will be the judicial relief for the protection of the right that was violated.

A law “befitting the values of the State of Israel”

9.  A law that is inconsistent with the Israeli narrative cannot stand. Its violation of our first principles is severe, and it is like an alien element whose existence is intolerable. The impact of the violation is so severe that the constitutional order is designed to block it at a relatively early stage. Case law generally relates to the requirement regarding the values of the state as a test of purpose at a high level of abstraction, the question being whether the law promotes, in terms of its objective, the fundamental values of Israel as these are derived from the need to protect the constitutional right. Our concern here is with the objective in the broad sense, namely, with all of the components that grant the law its unique significance. These include not only the purpose of the law but also the means it adopts and its outcomes.

A law “enacted for a proper purpose”

10.  The criterion of the proper purpose addresses the specific objective of the law.  It examines the law’s combined purpose – that which emerges against the backdrop of the totality of circumstances, the normative environment and the time in which the constitutional review is conducted, and that which expresses the “historical” intention of the legislator. In this context the law must overcome three hurdles in order for its concrete purpose to be regarded as befitting: [a] It must be intended for the achievement of social objectives, i.e., it must serve a concrete public interest. This requirement may be referred to as the test of interest;  [b] The interest must be regarded as sufficiently important to justify the violation of a protected right, having regard to the essence of the right and the severity of the violation. This can be referred to as the test of necessity. In terms of its development in our case law, and unlike other systems of law, this test has a relatively open texture, involving value-based decisions; [c] The law must befit a democratic regime that protects human rights. This is the test of sensitivity to the right.

11. The test of sensitivity to the right has yet to be sufficiently expounded in our case law, and the main thing that has been said of it is that “[a] purpose is deemed proper if it constitutes a social goal in a society sensitive to human rights” (HCJ 6126/94 Szenes v. Matar [5]). According to this conception a law that seeks to further a security interest, i.e., that at base seeks to protect a person’s right to life, is a law that is sensitive to human rights, and this is sufficient for purposes of determining that it is for a proper purpose. However, I am hard put to think of a law that seeks to promote a viable public interest which does not have some import for any of the human rights. Not only is it difficult to assume that had there been such a law, the legislature would have refrained from enacting it, but even had it been enacted, it would not have overcome the hurdle of befitting the values of a Jewish and democratic state. One may therefore wonder as to the utility of placing the hurdle of sensitivity to human rights at this stage of the constitutional examination, in that it is difficult to conceive of any law that would not overcome that hurdle. Therefore, the requirement of a befitting purpose must be understood to mean that a law cannot be befitting if it fails to demonstrate, according to its purpose, sensitivity to the right that is actually violated, as evinced in the circumstances under examination. As such, if in the previous sub-­test – the test of necessity – the appropriateness of the concrete purpose is tested from the perspective of the public interest, this will now be supplemented by the perspective of the right that was violated. In order to be regarded as befitting in terms of its purpose, the law causing the violation must demonstrate that it does not seek to deliver a mortal blow to protected human rights to such an extent that it becomes indifferent to the importance and significance of the violated right. A law that is totally indifferent to the importance of the violated basic rights is a law with an improper purpose. It cannot fit into the framework of a social order in which rights discourse is of the essence. In order to meet the test of sensitivity to the right,­ it must be shown that the law leaves, insofar as possible, real space for the existence of the right – even if only of its nucleus – whether broader or narrow, whether now or in the future, with various limitations, and provided that a reading of the law leads to the conclusion that it does not deny this right. This point was addressed by Dr. Yaacov Ben-Shemesh:

A democratic state that is sensitive to human rights is not free to promote the realization of public objectives in an absolute manner, regardless of their cost, and regardless of the violation of human rights that may be involved. Total objectives lead to totalitarian practices. It is doubtful whether a law intended to realize its objective to the maximum degree is a law intended for a proper purpose even if its  purpose, per se, is a proper purpose. It is conceivable that such a law will not overcome the hurdle of propriety of purpose not because the purpose is not proper but because it seeks to achieve it in a manner that is not proper, having regard to the importance of human rights (Ben Shemesh, supra, p. 59)

“An extent no greater than is required”

12.  We have derived three tests of proportionality from the wisdom and experience of others (Moshe Cohen-Eliya & Iddo Porat, “American Balancing and German Proportionality: The Historical Origins”, 8 Int. J. of Con. L. 263 (2010); R. Oakes [1986] S.C.R 103; L. 263 (2010). Proportionality addresses the means that the law seeks to invoke. This means may totally fail to realize the purpose of the law, in which case its violation of the right is in vain (rational relationship test), or it may realize the purpose but cause damage that was avoidable. The importance of this latter dimension, which attempts to identify the means which is the least intrusive, emerges specifically with the adoption of the notion that the proper purpose of the law must leave some space for the violated right. Once the notion of totality in realizing the public interest is rejected, the path is clear for an examination of whether the means adopted was the only one possible. Finally, it is conceivable that the norm under examination may indeed have realized the proper purpose effectively, but at the same time it harmed other principles and values, such that its damage exceeds its benefit (“narrow” proportionality test).

13.  This last test must be distinguished from the requirement that the law befit the values of a Jewish and democratic state. The test of appropriateness addresses first principles, and the value judgments it involves will reflect a relatively wide consensus. In addition, the three components set boundaries for its implementation. The final test of proportionality, which is paradoxically referred to as “narrow” even though it is quite broad, and even though  it is possible to structure the judicial discretion required in applying it, involves value judgments that may be controversial and are more dependent upon the world view of the observer.  In my view one must be careful to avoid transforming the “narrow” test of proportionality into a dominant one, to the extent of exclusivity, eclipsing the other components of the constitutional examination. The earlier it is possible to conduct this examination, in a non-contrived manner, the better.             

Today there is broad recognition of the similarity between the “narrow” test of proportionality and the ground of “reasonability” which for many years was dominant in our administrative law. The ground of reasonability provided a more powerful demonstration of the doctrinal and practical difficulties inherent in reliance on judicial discretion, in demarcating its borders and in identifying the proper relationship between it and the administrative act. These difficulties become more acute, a fortiori, when our concern is with review of legislative action, and they have been experienced by many of the legal systems that are confronted with defining the position of the various branches of government, particularly the relationship between an elected legislative branch, which operates by virtue of the majoritarian principle, and the judiciary. The transition from reasonability to proportionality is no magic potion. It does not eliminate the dispute between different views regarding the role of the court in a democratic society. As I already mentioned, certain aspects of proportionality may necessitate value judgments which are liable to further exacerbate this dispute. However, proportionality has advantages, the most important of which is that it involves detailed and structured tests, some of them objective, which provide a basis for in-depth argumentation.

The Citizenship Law and the Values of a Jewish and Democratic State

14.  The State of Israel was born into a security situation which was infinitely more difficult than the reality that it has confronted in recent years. Real existential threat hung over its head in the first decades of its existence. Many were consumed by doubt as to whether it was capable of meeting the challenges lain on its doorstep. An insistent question mark floated at times above the notion that it was possible to establish and successfully maintain a true democratic entity in the heart of a hostile region from which democratic ways of thinking were absent. Leaders in the Arab community in Israel as well as outside of it refused to accept the existence of a sovereign Jewish state in any part of the territory of the Land. They embarked on a war to destroy it when it was still in its infancy. After a short while, many of members of that community, as if all at once, became citizens of the state that was established. In this complicated reality, the young State inscribed on its flag the principle, which found expression in the Declaration of Independence, that even when the security situation was dire, and even though the basis for the State was the rebirth of the Jewish people in its homeland, all its citizens would enjoy equality of social and political rights irrespective of their religion, their ethnic origin or the community to which they belong. The historical experience of the Jewish people over the centuries, and one of the foundations in the name of which the State of Israel sought recognition amongst the nations of the world, acted to instill in the emerging image of the State this core component of equality – absence of discrimination due to group affiliation. The views diverge on the extent and the manner in which this would be applied. Even today, there are many allegations – not entirely baseless – of discrimination against and oppression of Arabs in Israel. But efforts were and still are being made, particularly in recent decades, to change the situation. The chapter of equality between Jews and those who are not Jewish has grown broader and it ought to be widened even further, until it is woven with silken thread into the entire fabric of the Israeli story, as an indisputable fact.

The difficult, continuous struggle for the peaceful existence of the Jewish people, too, adds to and comprises the Israeli foundational narrative. We are very far indeed from achieving rest and respite. Even if, albeit for a very short time in historical terms, the specter of the existential threat has been removed from above us, it has been replaced quickly by murderous terror. It has been decreed that we must deal with this. The efforts of our security forces make this possible. The courageous spirit and the determination of the Jewish people are no less important components. But our strength lies also in our existence as a democratic state, which aspires to allow individuals and communities to fulfill themselves, to express what is in their hearts, to move freely from one place to another, to think independently, to respect one another, to give a person the feeling that he is equal to the next person, to allow him to establish a home and a family of his choosing, and all this – without harming others.

15.  The realization of these elements under a single roof is not an easy task. It requires mutual concessions. It requires the taking of risks. It is not amenable to a blanket application. And the principle is as if woven into these things, that each person is an individual, and every man and women – even if he or she belongs to a particular social community – has a separate, individual existence. This is the basis of the idea that every person is responsible for his actions.

16.  The provisions of the Citizenship Law contradict all the above. They accord decisive weight to the element of security, while inflicting a mortal blow on basic rights of the first order. They create a reality, the clear outcome of which is constriction of the rights of Israelis merely because they are Arabs. They grant legitimacy to a notion that is alien to our basic conceptions – oppression of minorities only because they are minorities. By basing themselves on an arrangement of categorical classification, which contains everything except for an individual investigation of the danger presented by a person, they blur the image of the individual as an entire world in himself. They open the door to additional legislative acts which have no place in a democratic conception. They threaten to bring us a step closer to the conception that “preserves the outer skin of democracy, without leaving any traces of the contents” (Menachem Hofnung, Israel – Security Needs vs. the Rule of Law – 1948-1991 (1991) 105). The continued existence of the Law casts a dark shadow over the chances for Israeli democracy to meet the challenges which it faced till now. Whoever thinks that over time, even the majority, by virtue of whose decision this Law came into being, can withstand the damage it does, is wrong. I fear that it will threaten to overtake every Israeli, whoever he be, since it harbors the power to destabilize the foundation upon which we are all standing, shoulder to shoulder. At the end of the day this harm, distant and slow-approaching though it be, state-sponsored as it appears, is no less damaging than the acts of terror against which we are trying to protect ourselves.

17.  All this is wrought by the Citizenship Law at a time when it makes no real contribution to the Jewish aspect of Israel. On the contrary, because this Law has the potential to weaken the democratic foundations of the State, it also detracts from its ability to serve as the furnace in which the Jewish people is forged. This insight is particularly pertinent in view of the insistence of the State on its contention that the purpose of this Law is purely security-related, and nothing else. As declared, of the three arms of the foundational Israeli triangle, the Law purports to assist only in the realization of that relating to “state”, i.e., to the framework of the state that promotes the security of its citizens. It seems to me that this purpose can and should be achieved at a lower cost. Only individual arrangements, which avoid labelling a person according to his ethnic origin, affiliation to an age group, gender, or area of residence – arrangements that are based on acknowledgement of his own actions, evince a willingness to take the risk that is involved in recognition of human rights, and which draws upon our historical experience and our tradition as a people and as a state.

 

The Detailed Purpose

18.  The Citizenship Law serves a concrete public interest, the importance of which cannot be overstated. Protection of the security of the residents of Israel in view of terrorist threats justifies a certain erosion of the protection of the right to equality. It justifies a constriction of the protection of the right to family life. But the failure of the Law to propose a means of detailed examination – in view of the stance of the security forces that they are not able to achieve the same optimal degree of security to which the Law aspires in its present formulation – is such a gross violation of these rights, to the extent that it is no longer possible to say that the Law is sensitive to human rights. The Law does, indeed, prescribe exceptions to the limitation on acquiring a status in Israel. It expresses its position that in certain circumstances, Israelis can become reunited with their Palestinian spouses, as well as with their offspring. But these circumstances are so sparse, and their application so limited, that in practice they leave no room for the main principles of the specified rights. A comprehensive examination is not necessary in order to establish that the majority of Arab-Israeli partners wish to marry men and women belonging to the “prohibited age” under the Citizenship Law. This is the customary age of marriage, and this is attested to by the assessment of the respondents that some two-thirds of those who seek status by virtue of family reunification (an annual average of approx. 2000) are not included in the exceptions specified in the Law. Particularly noticeable are the weakness of the humanitarian exception and the idea, surprising in itself, of setting quotas for permits issued by virtue of it (sec. 13A1(6) of the Law).

Most of the applications for marriage or for reunification with children do not succeed in overcoming the sweeping restriction in the Law. But even those which fall within the bounds of one of the exceptions are not assured a detailed examination. They pass on to the next station – to a test under sec. 3D of the Law; this section, too, entrenches a blanket arrangement. Applications which made it over the various hurdles placed by the Law and have reached this stage are liable to find themselves exposed to a blanket disqualification, which has absolutely nothing to do with detailed information about the individual. This may happen, for example, only because the Palestinian partner resides in an area in which activity is taking place that is liable to endanger the security of the State of Israel or its citizens. Is there no room for allowing him, this foreign partner – and even if the State met its preliminary burden of showing that he presents a security risk – to prove on his part that despite the involvement in terror of his relatives or his neighbors in the area in which he resides, he himself has nothing to do with activity of this type? Examination of a person’s match to a profile of risk of one sort or another, I would stress,  is not a  detailed examination. And not only do two-thirds of the cases of family reunification not cross the threshold of the Law, but the vast majority of the cases that succeeded in accessing the foyer and crossing it successfully gained for their subjects only a permit to remain in Israel, which does not grant the rights enjoyed by Israelis. After all the exceptions, the Law implements an extremely sweeping arrangement, which does not take into account the rights of a sizeable majority of the Israeli partners, most of whom are Arab-Israeli citizens. In this can be seen the severe erosion of the right to family life. In this can be seen the mortal blow to the heart of the right to equality – the prevention of discrimination against a background of group affiliation.

A possible salve might have been found had the temporary order been of limited duration. A true and sincere time limitation may blunt the effect even of a blanket arrangement, and it is possible that this would provide the necessary minimal living space for the violated rights. But what can I do – once again I cannot escape the conclusion that the Citizenship Law is in no way temporary; rather, it was intended to be with us for many years, despite its promising title: “Temporary Order”.

On temporary orders:-

There is no greater eternity

Than a door sign stating: Closed for the day.

Forever it shall be closed.

No one will open. No one will emerge.

Not a cloud in the sky.

Embrace the verdict. Sign.

They will not open. Go home. Dream.

(Yehuda  Amichai, Poems 1948-1962, at p. 352 (2002))

 

19.  Prior to the Knesset passing the Law in the summer of 2003, the Government presented its clear position that the lifetime of the Law would be limited. But since then, the force of the Citizenship Law has been extended thirteen times – twice by the Knesset and another eleven times in governmental decisions that were approved by the Knesset. Even were we to ignore the question which is complex in itself – whether it is appropriate that the force of laws of the Knesset, and particularly a law which has such a significant impact, is extended by a governmental order which the legislature approves in a rapid process, a single vote, which may well not be based on a full picture of the information – I am afraid that again, we cannot be satisfied with the title “Temporary Order”. What was intended to be a temporary order has proved to be, unfortunately, an “Order Enduring Many Years”. Once it became clear that not only from the point of view of its contents but also from the perspective of the duration of its application, the Citizenship Law leaves inadequate room for the violated rights, it could no longer be said to be sensitive to human rights. It cannot be said of its purpose, even its concrete purpose, that it is proper.

20.  This lack of sensitivity to the violated rights becomes more acute in view of the conclusion that the Law has additional purposes, apart from that of security. It permits the entry of Palestinian workers into Israel, and allows for the granting of status to Palestinians who have helped Israel. I find it difficult to accept the State’s argument that the risk presented by temporary Palestinian workers – tens of thousands per year – is less than and substantially different from that presented by inhabitants of the Territories who acquired citizenship in Israel. The principle-based argument is not at all convincing, in my opinion, for access to Israel is possible for “day-trippers” too, just like workers. There is no escaping the conclusion that whenever the State has an interest in the presence of workers who fulfil employment requirements that the economy has trouble supplying, the security consideration is laid aside for the moment, or at least loses its status as a main consideration. This is not only liable to render the security purpose suspicious to some, but in my view, it poses an additional question mark as to the degree of seriousness with which the State relates to the violation of the protected rights of its Arab citizens.

Proportionality

Even an assumption that the Law is not inconsistent with the values of the Jewish and democratic state, and that its particular purpose is proper, will not help it to pass the constitutional test at its final station, that of proportionality. First, I believe that intensifying the violation of equality between Jewish and Arab citizens of Israel will not be of benefit even from the security point of view. The outcome is likely to be a reduction of the security risk from one aspect, but its increase in another aspect, for the feelings of frustration and oppression are liable to be directed into negative channels.

If this leads to the conclusion that the Law lacks a rational connection between its purpose and the means of achieving it, then this conclusion is even more valid from an additional perspective. Even if I assume that the Law seeks, according to its purpose, to leave adequate room for the violated rights, the sweeping means it prescribes are inconsistent with this purpose. The illegitimate blanket application of the Law finds expression in the assessment of the tools it adopted. Arrangements that are not sensitive, in a specific manner, to every application that is submitted to the security forces are not consistent with the intention to recognize the central place of the right to family life and the right to equality. Even on the assumption, which as stated is not at all obvious, that a law under which decisions are made according to sketches of profiles will be more effective in increasing security, there is a serious question mark about its ability to also promote the other part of “proper purpose”, which is showing sensitivity to human rights.

22.  But even if the Law managed to reach the threshold of the second test, that which seeks the means that is less intrusive, blocking it with this fine filter would be justified. At the point of departure, which claims that the Law is not directed at the achievement of absolute security, but it does what it can to limit the security risk presented by inhabitants of the Territories and hostile states, there is no escaping the conclusion that there exists a means which is less intrusive, i.e., the detailed check, the scope and a character of which will be determined in consultation with the experts on the matter, including the security elements, in advance, throughout the process, and if necessary, even thereafter.

23.  The words of the respondents best show that individual security checks are very effective. According to their data, of more than 600 applications that were lodged since September 2005 by virtue of one of the exceptions provided by the Law, and that were rejected for the reason that the applicant had been found to be connected to terrorist activity, more than 270 were from people who had already begun the process of acquiring status or acquiring a temporary permit to remain in Israel and had received temporary Israeli documentation; follow-up checks that had been made revealed that negative security information existed about them. In 66 other cases, this was the situation regarding those who received a permit to remain in Israel not by virtue of family reunification but for other reasons. It seems to me that  even disregarding the fact that these were in any case not disqualified on the basis of the risk profiles in the Law, these statistics indicate the efficacy of the accompanying security check.

24.  Not infrequently, in dealing with the second test of proportionality, the argument arises about the financial cost of the means that have been selected, and about the economic burden that these alternative means are likely to impose on the State. A significant difference in cost is liable to exclude the alternative means from the bounds of the means whose adoption is possible. In my view, it cannot be denied that cost is significant, but this significance decreases as the extent of the violation increases, and particularly when the violation is not in the category of damage to property, nor one that can be remedied by means of financial compensation. The violation of the rights that are the subject of these petitions, the protection of which justifies the investment of public resources, even in substantial amounts, is of this type. Secondly, my mind was put at rest in this matter, too, by the explicit words of counsel for the respondents, whereby the problem did not lie in the cost of the individual checks, but in the “inherent difficulty”, as she said, of adopting these detailed checks, whatever their cost may be.

Ultimately, my opinion is that the Citizenship Law does not overcome the hurdle of the constitutional mechanism; this inevitably calls for granting the appropriate judicial relief. With this I will conclude my words.

The Constitutional Relief

25.  Voidness is a major remedy for a misdeed in relation to the acts of a governmental authority. Its purpose is two-fold: repair of the wrong that is caused to the individual as a result of the act of the authorized body and restoring the authority to the path of constitutionality. In the course of the years, the discourse has moved from an absolute model of voidness, which means voiding the governmental act immediately and in full, to a classification of the relief according to the circumstances, including in light of the nature of the process and the identity of the parties to it. The main thrust of the doctrine of relative voidness is its granting of judicial discretion as to the breadth and depth of the voidness. Deferred voidness means that the court has the power to withhold its constitutional approval from the governmental action, but it postpones the date on which this receives practical expression. The two doctrines are liable to be invoked in examining the constitutionality of a Knesset law.  Judicial discretion in selecting the relief resorts to a complex system of balances and various considerations. An appropriate solution for one set of circumstances may prove to be unsatisfactory for another. Sometimes, declaring immediate voidness of a statutory norm will be an appropriate response to the violation it involves, particularly when this is serious and more marked. On the other hand, there are situations in which despite recognition of the flaw, the benefit of deferring the voidness will exceed the harm caused by the constitutional violation.

Deferral has advantages and disadvantages. On the one hand, it allows the governmental authority the necessary time to rethink and to make the preparations for fixing the existing arrangement. The advantage of this is that it does not exhaust the legal process before the fate of the governmental action is decided, in a way that is certain to lead – even if only after some time – to the removal of the flaw. It allows the governmental authority time for consideration and for the necessary public and political discourse – vital elements in the legislative and administrative enterprise. The advantage lies also in the fact that it reduces the risk of a normative lacuna which is liable to accompany immediate voidness. On the other hand, it has two weaknesses. First, it extends that lifetime of an illegitimate norm; and second, in detracting from the power of the authority under review it is liable to turn the opponents of judicial review against the courts, and in a case in which no alternative arrangement has been proposed, when the time arrives for the voidness to take effect, it may even erode the status of the courts of law.

26.  But the main virtue of deferred voidness is its contribution to constitutional dialogue, that is, to the understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them. It acknowledges that the constitutional enterprise is not the exclusive domain of one authority. The responsibility for it – which is heavy indeed – does not fall upon the shoulders of the court alone, nor on those of the Knesset nor on those of the government only. Protection of constitutional basic values – one of the most important elements of the democratic system – is effected by the three branches together. It is best, therefore, that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the authorities This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public. On the positive characteristic of constitutional dialogue, Hogg and Bushell wrote as follows in their well-known article:

[T]he judicial decision causes a public debate in which Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded… The legislative body would have been forced to give greater weight to the Charter values identified by the Court in devising the means of carrying out the objectives, or the legislative body might have been forced to modify its objectives to some extent to accommodate the Court’s concerns. These are constraints on the democratic process, no doubt, but the final decision is the democratic one… Judicial review is not “a veto over the politics of the nation,” but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole (P.W. Hogg and A.A. Bushell, “The Charter Dialogue between Courts and Legislatures — Or Perhaps the Charter of Rights isn’t such a Bad Thing After All”, 35 Osgoode Hall L. J. 75, 79; 80; 105 (1997)).

But constitutional dialogue cannot be fruitless. It cannot serve as a cover for an ongoing violation of human rights It cannot camouflage an approach that does not acknowledge the importance of protecting these rights. It cannot provide a platform on which to make light of their gravity. It cannot obviate the process of judicial review. In the absence of constitutional dialogue, the Law in question cannot be allowed to remain in place until the Knesset deigns to amend it.

Decision and Conclusion

27.  The loss of the democratic image of the State of Israel and the abandonment of basic concepts that it has held from its inception is something the Israeli public cannot accept. Our legal system cannot reconcile itself to this. The Citizenship Law threatens to create more than a crack in the wall, the strength of which has held till now, and which is called “a Jewish and democratic state”. The violation caused by the Law is serious. Its harms resounds. Its enactment is a foundational even in the democratic history of Israel. Even if there are those who would see this as a watershed in the relationship between the branches of government, the court can no longer observe this even from the sidelines. There is no option but to exercise our judicial authority. The severity of the violation and the concern about its additional ramifications make this necessary.

This does not detract from recognition of the gravity of the terror that has struck in our midst. The scenes of the attacks which we have experienced and their horrible results constantly pierce our hearts. Comfort over the worlds that have been destroyed in an instant – young boys and girls, parents, the elderly, entire families with all their children, soldiers, men and women – is hard to find. Outright war must be declared on the murderers, those who send them out, those to do their bidding – even amongst Israeli Arabs. It is the duty of the State to protect its residents, insofar as possible within the framework of the democratic regime. Its role is to aspire to ensure personal security. In times of security threats, the State is permitted to act differently than in times of peace and quiet. Nevertheless, we must not cross lines that must not be crossed. This has happened, even in foreign fields (and see: Hiabayashi v. United States [9]). This is not the way of the Israeli legislator. “Israel is the only state in the twentieth century that has succeeded in maintaining the existence of democratic institutions and a reasonable level of human rights for its citizens, despite the constant external threat” (Hofnung, ibid., at p. 346). I am sure that just as the Knesset succeeded, over the years, in dealing with complex, difficult challenges, this time too it will find a way to fix that which requires fixing.

28.  Based on this position, I propose to my colleagues that we issue an absolute order stating that the Citizenship and Entry into Israel Law (Temporary Order) 5763-2003, is void on grounds of unconstitutionality. The voidness of the Law will come into effect nine months from today.

 

Justice S. Joubran

I concur in the ruling of my colleague Justice E.E. Levy according to which the Law should be struck down, even in its present formulation. However, my reasoning is different.

In HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: Adalah Case), I ruled that the right to establish family life is a constitutional right which is protected in its entirety by Basic Law: Human Dignity and Liberty. I also ruled that the harm caused to this right by the arrangement specified in the Law touched upon the very essence of a person as a free citizen.

The Law and the amendment thereto prevent (almost totally) the possibility of realizing the right to family life with a partner who is an inhabitant or a citizen of the Area. This limitation is relevant only to the group comprised of Arab citizens of the State – it is they who in practice marry spouses from the Area. Accordingly, the provisions of this Law must be viewed as substantially violating the constitutional right to equality.

I will add that the amendment to the Law includes both inhabitants of the Area and inhabitants of states listed in Addendum B, including Syria, Lebanon and Iran. In my view, this generalization is not justified. First, the political situation that exists between Israel and the Palestinian Authority is different from that existing between Israel and the states appearing in the second addendum. Secondly, it is unjustified in view of the social, cultural and special historical situation between the Arab citizens  of the State of Israel and the inhabitants of the Area.

3.  The respondents argue that the provisions do not violate the right to equality, and that they are based on a permitted distinction due to the security threat that is posed by partners from the states specified in the Law. However, the total negation in the Law of the possibility of acquiring a status for a partner who is an inhabitant of the Area, with no indication of danger posed by him, attests in my view to a distinction which is not permitted, one which has ramifications for a defined, specific population group (Arab citizens) and which is not based upon concrete characteristics of those who are seeking the status (inhabitants of the Area).

The State supports its argument with data according to which, of the total number of inhabitants of the Area who acquired status in Israel by virtue of family reunification, several dozen have been involved in terrorist activity. It contends that there is a statistical potential risk posed by every one of the members of the group which justifies the distinction. In my view, attribution to an individual in a group of the negative characteristics that are attributed to the group, in the absence of any specific indication in respect of that particular individual, is illegitimate, and it violates the autonomy of the individual and his dignity. It would have been appropriate for the State to act to obtain maximum information, in order to create a distinction between the different persons seeking status and the degree of risk that they pose.

4.    This, of course, does not decrease the importance of the security need which is behind the enactment of the Law. Every state is obligated to preserve its existence and to protect the security of its citizens. However, it must be recalled that the state exists not only for the purpose of preserving the physical existence of its citizens, but also in order to allow them to realize their humanity and their liberty, through the creation of the rule of law.

5.    The violations of protected constitutional rights perpetrated by the Law are extremely severe, but that is not enough to strike it down. In accordance with the limitation clause in the Basic Laws, a law may violate constitutional rights, since they are not protected in their entirety. My colleague Justice E.E. Levy rules that the Law already fails to meet the second criterion of the limitation clause (the criterion of befitting the values of the State). In my view, my colleague’s approach extends the scope of judicial review within the parameters of the criterion of “befitting the values of the States of Israel” in the limitation clause; this is at a time when the constitutional tools of review – central to which is proportionality – that were broadly developed in international and Israeli law are more suited to the constitutional examination of this Law, in accordance with what my colleague President Barak wrote in the Adalah Case. In my view, in the area of judicial review of the constitutionality of a law, we must proceed cautiously and with restraint. As long as the second criterion of the limitation clause has not been sufficiently developed, it should continue to be invoked as a threshold criterion at a high level of abstraction, and its development should be left pending for the future.

Moreover, recourse to the criterion  of “befitting the values of the State” for the purpose of voiding this Law departs from our analysis in the Adalah Case. Despite the amendments to the Law as described, and the worsening violations, I am not convinced that there is justification for departing from President Barak’s analysis, with which I concurred (see the Adalah Case, p. 485). Care must be taken that similar cases received similar legal treatment, and even if in this case it seems, prima facie, that the path trodden by my colleague Justice E.E. Levy is correct and just, we must maintain strict consistency, unless there is significant reason to deviate from our path.

6.    In the Adalah Case it was ruled that the Law was designed for a proper purpose (pp. 318, 340). On this matter, I will once again stress that an examination of the Law and the arrangements it establishes, even in its present formulation, engenders the concern that security is not the only consideration behind the enactment of the Law, and it raises questions about the policy that the Law seeks to realize. It appears that demographic policy also figures amongst the considerations underlying the Law (see the Adalah Case, pp. 486-487). At the same time, having concurred in President Barak’s ruling in our previous judgment, whereby even the security consideration does not justify such a severe violation of family life and of the right to equality, I see no need to discuss this issue in the present petition as well.

7.    In light of this assumption, let us proceed to the criteria of proportionality. Regarding the first sub-criterion – the rational connection between the means and the end – in my opinion it should be ruled that there is a rational connection between the security purpose of the Law and the means that it prescribes. In the framework of the criterion of the rational connection, a clear question must be asked: do the means that were selected further the aims of the Law? Even if the purpose of the Law is only partially realized, the rational connection exists.

In accordance with the interpretation accorded to this criterion, one is hard-put say that the Citizenship Law fails to meet it. The very fact that the Law is of help in realizing the purpose, i.e., reduction of the security risk (as my colleague Justice E.E. Levy also determines in para. 36 of his opinion) shows that it establishes a rational connection between the end and the means. Other considerations should not be introduced into this criterion – ones which should find expression in the balance in the framework of the third sub-criterion of proportionality.

8.    The criterion of the “least intrusive means” has been interpreted in the case law as an instruction to examine whether the legislator selected, from amongst those means that realize the proper purpose of the law causing the harm with the same degree of intensity, the means that entail the least violation. The only difference there should be if we were to exchange the harmful means with an alternative is a lesser violation of the constitutional rights, with no difference in the other details surrounding the Law and in the extent of realization of the proper purpose (Barak, Proportionality in Law, p. 399). In my view, the question of the extent to which the alternative means must realize the purpose of the Law is likely to arise here: must the realization be full and identical, or can we be satisfied with a high, although not identical, degree of realization? I do not think that this question must be decided, since in my view the Law must be struck down as it does not meet the third sub-criterion, as will be elucidated below.

9.    The third sub-criterion is the very heart of the principle of proportionality, which erects a “moral barrier” and prescribes that there must be an appropriate relationship between the benefit engendered by realization of the purpose of the law and between its violation of constitutional human rights. In relation to this sub-criterion, no amorphous, generalized balance is sought between the benefit and the harm. We must define what the harmful means has added to the purpose that the law sought to promote, and to examine this as against the additional violation of the constitutional right as a result of that same violating means prescribed in the law, and to compare their weights. Moreover, a situation is possible in which the balance can be reduced even beyond this. The starting point of the balancing of what has been added was the assumption that we are comparing the situation prior to the enactment of the harmful means with the situation following its enactment. As will be recalled, a less harmful means may possibly be found, one which does not wholly realize the aims of the Law, and which is not necessarily relevant to the second sub-criterion, but which is relevant in the context of the third sub-criterion. If such a means exists, then it will be the means figuring in the balance.

10.  Thus, the Law in the present case is not the only means to ensure the security of the residents of the State; it is only one of the many means of maintaining security alongside  many other laws, the activity of the security forces etc.. On the other hand, the means adopted by this Law cause a severe violation of the right to family life and the right to equality. In view of the complexity of the said rights and the many violations of them, the realistic path is to examine what the Law adds to security, and what it adds  to violation of the right. This is based on the assumption that security is also realized through many other means, and that the constitutional rights are violated by many other arrangements as well.

11.  The question in the framework of this sub-criterion in the present case is this: “Is the additional security that is obtained in the transition from the strictest detailed check possible according to the law of the foreign partner to a sweeping prohibition on entry into Israel properly proportionate to the additional violation of human dignity of the Israeli spouse that is caused by this transition?” (ibid., at p. 345). The answer to this question is that there is no proper proportion between the added contribution to the purpose of the Law as opposed to the additional violation of constitutional rights. Indeed, assuming that we are talking about a proper security purpose, then the means prescribed by the Law, and principally, the blanket prohibition, contribute to security. But this purpose is obtained at too heavy a price. A democratic state cannot allow itself to pay such a price, even if the purpose is apparently a proper one.

12.  Therefore, I concur in the decision of my colleague E.E. Levy that the order should be made absolute, and that the Citizenship Law should be declared void due to its non-constitutionality. I would add that alongside the legal difficulties that are raised by this Law, and due to which it should be struck down, this Law, like every law, was created in a particular social atmosphere and it affects this atmosphere. I can but rue the existence of this Law, which has the power to continue to make difficulties for the maintenance of the integrity of the delicate fabric of Israeli society, in all its sectors and varieties.

Justice E. Rubinstein

Justice E. Arbel

Justice Arbel joined in the deliberation of the petition in its second incarnation, following in the paths that were paved in the first judgment on the matter of the Citizenship Law; she elucidated her position and her reasoning, stressing the difficulty involved in making a decision.

In the view of Justice Arbel, and as the majority of the bench in the first judgment on the Citizenship Law held, the starting point of the deliberation must be that the purpose of the Law is security-related.  At its heart is the concern about involvement in activity against the security of the State of Israel on the part of foreigners who arrive from states or areas whose hostility to Israel is clear and known, and who wish to settle in Israel in the framework of family reunification with an Israeli partner.

The right to family life is a constitutional right that is derived from the constitutional value of human dignity. The right of a person to connect to a person and to establish a family with that person is intricately woven into the value of human dignity, and lies at its heart. It is one of the fundamental components that define a person’s identity and his ability to achieve self-realization. A person’s right to choose with whom to bind up his life is the ultimate expression of autonomy of the individual will. It expresses a person’s most basic needs for love, for belonging, for partnership and for propagation. As such, it stems from the very basis of human existence. However, the right to family life does not means that the foreign spouse of an Israeli citizen has a right to immigrate to Israel by virtue of the marital bond. As has been mentioned, a state, by virtue of its sovereignty, has the power to limit the entry of foreigners into its territory, and a foreigner has no vested right to enter the country. In principle, the State, due to its security requirements, may decide to prohibit entry into its territory of nationals of a hostile state or of those who arrive from places which are very hostile towards Israel and in which activity against Israel and its security is conducted. This is even more the case when Israel and the state of the foreigner for whom family reunification is sought are engaged in armed struggle, and it is certainly true in relation to a state that is subject to such varied, incessant significant security threats such as Israel. However, even in this situation, the Law must meet the constitutional criteria of legislative review.

In proceeding to examine whether the right to family life is violated by the Law, Justice Arbel was of the opinion, after difficult deliberation, that there is no escaping the conclusion that the right to family life comprises two aspects – the substantive right to marry a foreigner and the right to realize family life in Israel. The separation between the substantive right and the right to realize it is artificial, for without realization of the right, there is no right. The almost blanket limitation imposed by the Law on the possibility of establishing family life together with a foreign partner who is an inhabitant of the Area, or the subject of a state that poses a risk constitutes a violation of a constitutional right not only by its very nature, but also, and mainly, because the implementation of the said limitation is not egalitarian.

Indeed, the Law does not distinguish between the Jewish citizens and the Arab citizens of Israel. It does not distinguish between any citizens. The same rule applies to all. The distinction adopted by the Law is based on a relevant difference between foreign partners who originate from the Area and hostile states – places in which activity against Israel and its security is conducted – and foreign partners from other places which do not, apparently, invoke a presumption of danger of this sort. However, even in these circumstances, the focus of the examination is on the Israeli citizen. For the Arab citizens of Israel, the inhabitants of the Area, who are members of their nation, constitute a potential group with whom to establish family connections. As such, on the basis of the outcome, they are the main victims of the limitation according to the Law. When, according to the outcome, the Arab citizens of Israel are much more severely harmed as a result of the statutory limitation than are other citizens of Israel, such a broad assumption of dangerousness as prescribed by the Law cannot legitimize the violation of the right to family life, to equality, nor can it legitimize the violation of dignity. In practice, the violation of the right to family life occurs in a way that is unequal and discriminatory. Accordingly, it was ruled that the Law violates the right to family life, in its broad sense, and the right to equality.

According to Justice Arbel, the main difficulty posed by the Law in its current formulation focusses on the stage of examining proportionality in its narrow sense, which is a component of the criteria of the limitation clause in sec. 8 of Basic Law: Human Dignity and Liberty.

Justice Arbel believes that it is very doubtful whether from a practical point of view, the detailed security check alone is capable, as the petitioners contend, of achieving the purpose of the Law. Relying on the assessment of the professionals, Justice Arbel concluded that despite the fact that individual scrutiny of partners who wished to enter would cause the least violation, from the point of view of severity, scope and depth, of the right to family life and of equality, it is not capable of realizing the purpose of the Law to the same degree as the broad prohibition under the Citizenship Law. Therefore, it was ruled that the Law stands up to the second sub-criterion of proportionality – the criterion of the means which is least intrusive, for no other less harmful means exists which will realize the purpose of the Law to the same extent as the means that was selected.

On the question of the proper ratio of the security purpose of the Law to the harm it causes to the basic right to family life, Justice Arbel’s opinion was that an examination of the “added value” that the Law provides as opposed to the “added harm” caused by its violation of the right of Israeli citizens to family life reveals that the Law is not proportional. This position is based on two elements. The first is the non-proportionality of the harm from the perspective of time, for recourse has been had to a temporary order whose validity has twice been extended by the Knesset and ten times by governmental decisions. The fact that the violation of basic rights was effected by a temporary order, due to the exigencies of the time, can indeed serve as an indication of the proportionality of the violation. The temporary nature of the violation, stemming from the fact that the legislation appears in the framework of a temporary order, has implications for assessing the magnitude, the depth and the breadth of the violation of the human right. However, since the Law was enacted as a temporary provision, its validity has been extended twelve times. There has been no significant change in the Law. A survey of the changes that were introduced into the Law in the years that elapsed since its enactment raises, at very least, a concern that more than being designed to moderate the severe harm that the Law represents, these changes were designed to provide a basis for it.  A temporary order is naturally suited to a temporary arrangement. Invoking it for purposes that touch on the core of the constitutional rights, such as in our case, gives rise to difficulties, particularly insofar as it entrenches a severe violation of human rights. Hence, the matter ought to have been regulated by statute.

The second base on which the position of Justice Arbel rests is the nature of the violation of basic rights. According to her, the potential added security provided by the restriction under the Law does not equal the additional certain damage in the wake of a real, concrete, profound and severe violation of the right to establish family life, of the right to equality and dignity, as well as a violation of their right to realize these rights in a state in which they are citizens with equal rights. To these is added the severe harm done to the feeling of belonging of the Arab citizens of Israel, which may intensify the feeling of alienation and rejection that is common amongst at least some of this public.

Justice Arbel arrives at this conclusion in light of the existence of a more proportional, even if not optimal, alternative – the detailed examination – which can be improved by combining it with additional means of checking and oversight. Together with this, Justice Arbel mentioned the conditions which could be added to the detailed examinations in order to demonstrate that the voiding of the Law need not necessarily leave the legislator empty-handed. A suitable arrangement could be basically similar to the outline proposed by Justice Levy in the first incarnation of the judgment in the matter of the Citizenship Law, which included three main components: as thorough and detailed an examination as possible in the circumstances; conditioning consideration of the application upon the foreign partner not being in Israel illegally and not being in Israel as long as permission to enter has not been given; similarly, a requirement of declaration of loyalty to the State of Israel and its laws, renouncing loyalty to any other state or political entity. It would also be possible to require longer minimum period of residence in Israel as a threshold condition for acquisition of Israeli citizenship, when the spouse is an inhabitant of the Area or a national of a hostile state. Commission of serious criminal offences will be cause for immediate termination of the process of family reunification. The State is authorized to attach certain conditions to a person’s entry into Israel, the purpose of which is to reduce the security danger he represents, such as a prohibition on visiting his original place of residence or a prohibition on making contact with certain elements if they are involved in activity against the security of the State. Justice Arbel does not rule out the possibility that the arrangement that will be introduced will distinguish between territories in Judea and Samaria and between the Gaza Strip and hostile nations, if the experts on behalf of the respondent think that there is a difference between them with respect to the ability to gather information for the purpose of conducting an individual examination .

Justice Arbel proposed to defer the declaration of voidness for a year from the time of publication of the judgment, mainly because this is a complex subject which is of great public importance. The legislator must weigh the subject in all its aspects, and formulate a proper, balanced arrangement, or alternatively, prepare itself for the reality that will exist once the Law is no longer in force. The legislative arrangement will be shaped and set in place by the legislature, if it sees fit to do so, for that is its role and its expertise.

Justice H. Melcer

Introduction

1.    Let me begin by saying that in my opinion, the order nisi that was issued in this case should be cancelled. This is because the arrangements that were prescribed in the Law that is being challenged are, at this time, the lesser evil, and “better safe than sorry”. In the area with which we are dealing, the principle that reflects the above saying is the precautionary principle. This principle has established itself in recent years in relation to various subjects, and it seems to be applicable to the present matter as well.

The Present Petitions and the Normative Basis

2.    The petitions before us once again raise the question of the constitutionality of the current provisions of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Law, and together with the amendments made to it: the amended Law). The previous formulation of the Law was examined in the framework of HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: Adalah Case), and the petitions in that matter were ultimately denied.

After the judgment was handed down in the Adalah Case, the Law was amended, and changes were introduced to it. Against the amended Law the present petitions were lodged, and in the period during which the petition has been pending, the validity of the amended Law has been extended several times by the Government with the approval of the Knesset.

3.    The amended Law provides that the Minister of the Interior will not grant Israeli citizenship or a permit to remain in Israel to a person who is an inhabitant of Judaea and Samaria or of the Gaza Strip (hereinafter: the Area), or a person who is a citizen or resident of Iran, Lebanon, Syria or Iraq. The amended Law also provides that the commanders in the Area will not provide the inhabitants of the Area with a permit to remain in Israel.

Several exceptions were made to this provision, by virtue of which the governing bodies mentioned in the Law were authorized to provide a permit to remain in Israel, or a status in Israel in particular cases.

In the amendment of 2007, several innovations were introduced into the amended Law: the establishment of a committee charged with examining the provision of a permit to remain in Israel for humanitarian reasons; a broadening of the geographical scope of the Law as mentioned above; and an extension of the definition of the security risk to a situation in which activity was taking place in the area of residence of the person that was liable to endanger state security.

Current Data concerning the Amended Law in Light of the Security Situation (according to the Respondents)

4.    The point of departure of the amended Law is that at this time, it is not possible to conduct a detailed diagnosis for the purpose of predicting whether a person is dangerous with respect to the entire body of requests to settle in Israel by virtue of the process of family reunification. Therefore, the amended Law prescribes a model based on risk profiling.

Thus, inter alia, special arrangements were fixed for obtaining a status in Israel, and women and men who were not included in the clear risk groups were excluded. Authority was also given to deviate from these arrangements for special humanitarian reasons.

5.    The respondents declare that from August 2005 until April 2010, the Ministry of the Interior approved the granting of status in Israel to 4118 subjects of the Palestinian Authority on the basis of applications for family reunification. To this data must be added the activity of the Professional-Humanitarian Committee. Up to April 2010, in excess of 600 applications were submitted to the Committee. More than 282 applications were considered by the Committee. 33 applications were handed on with positive recommendations to the Minister of the Interior and approved by him, and the applicants were granted permits to remain in Israel.

From the above it emerges that despite the security risk,  in recent years more than 4,000 Palestinians were granted a status in Israel by virtue of the exceptions prescribed in the amended Law.

The Present Security Situation

6.    From the statistics of the Security Forces, the following facts emerge:

From 2006 until April 2010, some 200 suicide attacks were averted. In addition, in the course of the years 2009-2010, the General Security Services averted dozens of intended suicide and kidnapping attacks at earlier stages of their preparation, We were further informed that the terrorist organizations continue to attempt, constantly, to carry out attacks in Israel, and to recruit activists and arms for perpetrating attacks.

7.    The assessment of the security forces is that radicalization amongst the Palestinian population is on the rise. This applies to the Gaza Strip, and to Judea and Samaria and the Jerusalem area.

8.    From the above we learn that contrary to the impression of relative quiet, attempts are being made to carry out attacks in the heart of the State of Israel. In order to carry out attacks, cooperation with those who are originally “inhabitants of the Area”, who have settled in Israel, is necessary. In almost every such attack to date within the territory of Israel, a person bearing Israeli documentation was involved at some stage or other of the planning, abetting or perpetration of the attack.  

The amended Law is one of the ways of preventing this.

Statistics about the Involvement in Hostile Terrorist Activity of Palestinians who were Originally Inhabitants of the Area, who Reside in Israel After having been Granted Status in the Wake of the Process of Family Reunification

9.    From 2001 until 2010, 54 Palestinian subjects, who acquired or sought to acquire status in Israel in the framework of the process of family reunification, or elements connected to them directly, were involved in terrorist activities that were actually carried out, or that were prevented at the last minute.

In this context it should be explained that according to the approach of the security forces, the very entry of a Palestinian subject into Israel in the framework of the “graduated test” adopted by the Israeli authorities is what makes it “attractive”. Naturally, insofar as the person bears an Israeli identity card or driving license, his “potential contribution” to the causes of terror also grows.

Failures of Individual Screening and the Age Groups in the Profile of Dangerousness for Perpetrating Hostile Terrorist Acts Against the State of Israel in Accordance with the Amended Law

10.  According to the statistics of the Security forces, since September 2005 632 applications to acquire a status in Israel by virtue of family reunification were rejected on grounds of involvement in terrorist activity.

It should be understood that of the 632 applications that were rejected as stated, in 273 cases the obstacle arose after the status was granted or preliminary approval was given in the framework of the “graduated process”. It will be stressed that in relation to these applicants,  the information from which it emerged that they were perpetrators, terrorists or helpers was discovered after the individual screening had not produced any suspicious information in relation to them.

Hence one can discern the inherent difficulty in relying on detailed screening, while ignoring the age-risk profile of the inhabitants of the Palestinian Authority.

The activity of terrorist organizations is based on the recruitment and identification of activists who are not known to the security forces in Israel from the outset as terror activists, in the format of penetration into Israel by means of marriage. For these seekers of status individual screening is in any case not effective, for at the time of submission of the application these people are not involved in terror and therefore there is no information arousing suspicion about them.

Moreover, the failures of individual screening are aggravated with the routinization of the phenomenon known as the “lone attacker”, who acts without affiliation to any terrorist organization.

Reactions of the Petitioners to the Above Statistics

11.  The response of the petitioners in HCJ 830/07 to the above information was a general denial. Furthermore, they and the other petitioners repeated the legal arguments that they raised in the Adalah Case and in the petitions before us.

12.  The petitioners in HCJ 5030/07 asked to discuss the violation of the rights of minors in the provisions of the amended Law, and commented that the respondents had not supplied separate data concerning the involvement of the children of inhabitants who acquired a status or a permit in attacks. Moreover, and according to them, the status of the children who live in East Jerusalem was not accorded separate treatment, as was required according to their approach. They also added that the credibility of the security argument is undermined by the application of the amended Law to children, as well as the willingness to furnish them with CCA (Coordination and Communications Administration) permits alongside the refusal to grant them permanent status and social rights.

Deliberation and Decision

13.  The basis for the allegations of the petitioners is in the fact that the amended Law violates the basic constitutional right to family life.

In my opinion, even though the right to family life is a basic right, the possibility of realizing it in the state of citizenship of the Israeli partner does not have constitutional status, as I shall elucidate below.

Rejection of the Argument that the Right of the Israeli Partner to Bring the Foreign Partner into Israel is a Constitutional Right that is Protected by virtue of Basic Law: Human Dignity and Liberty

Under the provisions of Basic Law: Human Dignity and Liberty, the right to enter Israel is granted only to Israeli citizens (sec. 6(b)). The right to leave the country, on the other hand, is granted to every person (sec. 6(a)). My opinion is that the right to enter Israel is the constitutional right of a citizen, and not one conferred upon every person, as I will explain forthwith.

According to the opinion of the majority of the justices in the Adalah Case, the basic constitutional right to family life is a derived right from the “mother right” to human dignity, or a type of right derived from a derived right (a “grandchild right”) to the right of equality that is included in the “framework right” of human dignity. The question here, therefore, is how far the “rights without a particular name” can be stretched. It would seem that when the extent of the derived right is not consistent with the reach of the particular constitutional “mother right”, the latter must prevail as being lex specialis. That is to say, in the said case the particular “mother right” – the right of entry to Israel, as defined in the Basic Law –  prevails over the derived right – the right to family life in Israel of the Israeli citizen, and its ramifications for the possibilities of the foreign partner and children to enter the State and remain there. 

Contrary to the petitioners’ argument, comparative law has not recognized a constitutional right of the right of a spouse who is a citizen to cause his/her partner to acquire citizenship or another status for remaining in the country of citizenship (of the former). Only recently, this rule was again approved in the European Court of Human Rights, in the case of Kiyutin v. Russia [21].

14.  This leads to the conclusion that the petitions should be denied, even if only on the basis of the fact that in my view, the alleged right on which the petitions are based does not pass the “first stage” of the constitutional examination. At the same time, out of respect for the opposing – reasoned and detailed – views of the majority justices in the Adalah Case, and of some of my colleagues here, I will continue with my analysis and I will discuss the applicability of the terms of the limitation clause to the entire matter.

15.  There would seem to be universal agreement that the requirement of the limitation clause that the violation be “by law or according to law”, i.e., by virtue of explicit authorization, is met here.

16.  It would appear that the majority of the justices on the bench, too, are of the view that it cannot be said that the amended Law, in its present format and its temporary nature, is not in keeping, in the circumstances in which we find ourselves, with the values of the State of Israel.

17.  The next test that the amended Law must pass is that of the “proper purpose”. In the Adalah Case, most of the justices agreed in fact with the view that the Law was designed to ensure Israel’s security. And I, too, think so.

18.  What remains to be examined, therefore, is the proportionality of the Law according to three sub-tests:

(a)   The test of the rational connection.

(b)   The test of the least intrusive means.

(c)   The test of the proportional means senso strictu.

The main dispute in this case turns on the third of the above sub-tests.

At this point I wish to show that the amended Law satisfies the above criterion, in that it represents the precautionary principle, which has been developed in comparative law for situations of predictable uncertainty and catastrophic risks.

The precautionary principle is a relatively new principle in public law, but within a few years it has justifiably become – with the support of liberal jurists and the case law – one of the important principles in a number of areas, such as the environment, the use of nuclear energy and nuclear waste, use of medications, genetic engineering, oversight of food, sources of water and more.

In implementing this principle in the areas in which it was already recognized, the precautionary principle was designed to deal with the difficulty of the gap between the existing knowledge at a given time and the enormous and uncertain  potential harm that was liable to be caused by an activity, if appropriate precautionary measures were not adopted in relation to that activity. From the outset, the principle allows the authority (the legislature or the executive) to adopt measures designed to prevent the catastrophe when a significant threat of irreversible, wide-spread damage exists, even if the probability is low and even when there is no proven scientific certainty that the damage will indeed eventuate.

Many fine scholars have studied the origin of the precautionary principle. Some have held that this principle is simply a matter of pure logic. According to others, it is typical of the modern approach of citizens and governments who are attempting to reduce risks, or to change the emphases of various disciplines and values (science, economics, ethics, philosophy politics and active law – for the protection of the public) that prevail in society. My present analysis follows the path of the research of Professor Funk (Björn M. Funk, “The Precautionary Principle”, in The Earth Charter: Framework for Global Governance 191, 196 (Klaus Bosselmann and J. Ronald Engel eds., 2010), although I believe that it is possible to find echoes of this principle already in the words of Proverbs 28:14: “Happy is the man that feareth always…”. In all events, in modern law the development of this principle is attributed to German jurisprudence, in which it also came to be known as the Vorsorgeprinzip.

The principle first received a universal legal formulation in 1992 in the Rio Declaration on Environment and Development.  Since then, the principle has been modified many times in form and content, and it has had some twenty formulations.

The commonly accepted approach today with respect to its definition is formulated as follows:

Where an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically In this context the proponent of an activity, rather than the public bears the burden of proof. (Wingspread Statement on the Precautionary Principle (1998), http://www.gdrc.org/u-gov/precaution-3.html).

 

This approach is more simply and memorably formulated in the English expression, “Better safe than sorry.”

(a)   Dr. Liav Orgad in his article (“Immigration, Terror and Human Rights: Israel’s Immigration Policy in Times of Emergency (Following HCJ 7052/03Adalah v. Minister of the Interior)”, 25(2) Mehkarei Mishpat  (2009), 485) offers a number of reasons why, in the circumstances, the basic constitutional right to family reunification in Israel may be violated, even if the percentage of terrorists among the “family migrants” is small. They are as follows:

(1)   The relevant question, in his opinion, is not how many “marriage migrants” were involved in acts of terror or how many acts of terror occurred due to their immigration, but rather, how many victims there were and how much damage was caused.

(2)   It must be borne in mind that the success of a “quality” terror attack exacts a cost that is far greater than the number of victims: it has far-reaching strategic, political and psychological ramifications. A successful terror attack has ramifications for the state economy, for tourism, for international relations, for the deterrent ability of the state, for its ability to stand up to threats and similar variables that are part, or should be part, of every mathematical equation or formula.

(3)   The question is not only how many acts of terror were committed by “family migrants”, but what percentage do these constitute of total terrorist acts that were committed by Israeli citizens.

(4)   Even if we accept that the state must take risks in order to realize basic constitutional rights of its citizens, we cannot ignore the fact that the risk that the state is required to take in the case of marriage migration of enemy subjects stems not from citizens of the state, but from foreign partners.

(5)   The present version of the Law contains five exceptions, which in any case obligate the state to take risks; these exceptions allow for detailed screening of about thirty percent of the applications.

(6)   From an institutional point of view, value-based decisions of this type ought to be made by the parliament and not by the court, unless there was a flaw in the decision-making process or it was based on alien considerations or it is irrational.

20.  It now remains for us, therefore, to examine the compatibility of the precautionary principle with the test of proportionality. The leading European decision on this subject is Pfizer Animal Health SA v. Council of the European Union [22] of the European Court of Justice, which in effect combined the precautionary principle with the criterion of proportionality and ruled, in our terms, that in cases in which the conditions for the application of the precautionary principle are met, one cannot say that the acts of the authority did not fulfill the requirements of proportionality, for in such situations, preference is accorded to the considerations of the regulatory authority, since it bears the responsibility if the catastrophe eventuates, and it will be required to justify its actions, or its omissions.

Let us now move on to discuss in greater detail the third sub-criterion of proportionality i.e., the “test of relativity”.

21.The criterion of “proportionality senso strictu” requires, as is known, that in order to justify the violation of a constitutional right, there must be a proper and positive relationship between the added benefit ensuing from realization of the legislative purpose and between the added harm that is liable to be caused thereby to the constitutional right. In my humble opinion, when the added benefit that the Law under scrutiny wishes to provide is the prevention of anticipated damage,  and particularly in situations in which the precautionary principle is apt, the relevant legislation will successfully pass this sub-test.

Thus, in the present case, the alleged additional violation of the right to family life, which is of high probability in the wake of the provisions of the amended Law, carries less weight than the anticipated harm.

22.  Moreover, and on the contrary. As is known, the legislator is afforded “legislative room for maneuver”. Within this room, the question with which we are confronted is not whether we would succeed in devising a better arrangement, but whether the arrangement that was selected is constitutional, i.e., whether it falls within the “legislative room for maneuver” within which the legislator is permitted to operate. Indeed, as Dr. Orgad demonstrates in his above article, the legislator not infrequently fixes provisions and prohibitions on the basis of statistical generalizations that are considered reliable, even if most of the individuals who belong to a particular risk group are not dangerous on an individual level, but the level of danger presented by this group as a whole is higher than that presented by other groups. Thus, for example, the generalization whereby young people have dangerous driving habits, and therefore restrictions and special statutory provisions will apply with respect to their driving, does not mean that all youngsters, or even a majority of them, drive in a dangerous manner, and it does not require a cancelling of the restrictions in the law that are applied to the driving of youngsters per se. This is particularly the case in relation to the precautionary principle.

23.  Application of the precautionary principle in the present case is justified, for this is a situation in which the uncertainty is great and even if the alleged anticipated danger is relatively very low, the tragedy that could be caused is absolutely terrible, and there is in fact no alternative for preventing it other than by means of a blanket restriction (with exceptions, as in relation to the amended Law). Moreover, the parameters for comparison between the potential damage and the violation of the right set up different values, which are difficult to present and assess in juxtaposition.

24.  The precautionary principle has another quality that is relevant to our matter, viz., the fact that it requires a permanent, ongoing examination with respect to the parameters defining it. This is consistent with legislation of temporary orders, for limitation of time, per se, contains an element of proportionality.

25.  We learn from comparative law that recourse to temporary legislation is appropriate in four alternative situations (see: Jacob Garsen, “Temporary Legislation”, 74 U. Chi. L. Rev. 247, 273-279 (2007)):

(a)   Constraints due to  urgency or emergency;

(b)   A controlled trial of a new system, or a new policy or as a means of receiving information;

(c)   A response to defects in existing normative situations;

(d)   An attempt to overcome cognitive biases.

Simply put, it appears to me that most of the above situations exist with respect to the reality that gave rise the amended Law and its extensions, and it can only be hoped that the reasons that justify adopting these steps will disappear in future. In the last update submitted to us by the respondents on 21.12.11, they said that an administrative study project is being conducted by the Government with the objective of formulating a comprehensive legal arrangement regarding the policy for entry into and settlement in Israel, as part of the State’s handling of the issue presented by legal and illegal immigration to Israel.

In view of the above – in the framework of the abovementioned administrative study which is at present being carried out, or parallel to it, in deliberations towards extending the validity of the amended Law – emphasis should be placed at least on two subjects:

(a)   A thorough reexamination of the severity of the present risks, while attempting to neutralize the cognitive biases that exist in these fields.

(b)   The provision of appropriate solutions for the problems and the status of minors, the children of the families to which the Law refers. On this matter I concur, fully, in the opinion of my colleague Justice M. Naor.

This last matter brings us to the issue of relief.

Relief

26.  In my view, as stated, the petitions should be denied. However, even those of my colleagues who hold that the Law should be declared void are of the opinion that the decision of voidness should be deferred for a significant period (up to nine months), in order to allow for another statutory arrangement to be devised. In my humble opinion, there are two fallacies in this approach:

(a)   At the time of writing this opinion, the said Law is scheduled to lapse on 31.1.2012, and one cannot know if it will be extended and how. Hence, whoever advocates striking it down is in fact giving the amended Law life, or is suggesting to the authority to extend its force even beyond the period allocated to it. This is problematic in view of the substance and the special nature of such a Temporary Order Law.

(b)   The relief that my colleagues propose proves that even according to them, the amended Law at this stage is essential (even if not necessarily in its present format) and proportional and that it in fact meets the requirements of the limitation clause, for apparently, the deferral provision, too, must conform to constitutional criteria.

 

Justice M. Naor

Justice Naor restated her position in HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: the Adalah Case), according to which the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Law) should not be voided. Justice Naor noted that with the passage of time, the number of families who married prior to the decision of the Government and the Law and who are not able to realize family reunification has decreased; in her opinion, this alleviates somewhat the harsh consequences of the Law. Justice Naor added that without making light of the hardship caused to families that were established subsequent to the government decision or the Law, the Israeli spouses who chose to establish families after the rules of the game had been changed, with persons whose entry into Israel was prohibited, did so in the knowledge of the legal situation in Israel.

Justice Naor reiterated her position concerning the scope of the constitutional right to family life. She discussed the fact that the right to family life, which is a whole world, has many derivatives, and that the constitutional protection of the right to family life does not provide universal coverage on the constitutional level. Similarly, in her view, no general duty should be imposed on the state to permit family reunification within the territory of the State of Israel. Against this backdrop, Justice Naor determined that the constitutional protection does not apply to the possibility of realizing family life with a foreign spouse in Israel in particular, which is only one of the derivatives of the right to family life. Justice Naor emphasized that in other democratic states as well, the constitutional right of a citizen or a resident to bring a foreign spouse into his country and to choose the country in which family life will be realized has not been recognized.

Justice Naor noted that even on the assumption that the right in question is a constitutional one, it was agreed that there is no obligation to permit the right to be realized at all times under all conditions. Justice Naor cited several examples from the case law of the Supreme Court, which permitted postponement or deferment of the realization of the constitutional right, out of consideration for the public interest. Justice Naor pointed out that in a similar fashion, in the present case, realization of the right to bring a foreign spouse into Israel was deferred for a fixed, known time (as opposed to some unclear, undefined time): until a woman reached the age of 25 years old, and a man – 35 years old. Justice Naor ruled that having regard to this and in view of the special, serious public interest underlying the Law, the Law meets the criteria of proportionality.

Justice Naor added that the provisions of the Law applying to minors allow minors not to be separated from a parent with custody who is entitled to reside in Israel. Justice Naor added that the State explained that minors who received a resident license or permit to remain in Israel, as relevant in accordance with the provisions of the Law, would continue to benefit from the same status even after they reached the age of 14 or 18, as relevant, on condition that they continued to reside permanently in Israel, and in the absence of any criminal or security-related obstacle. In light of the above, Justice Naor ruled that there is no cause for concern that minors, or minors who have reached majority, will be separated from their families; hence, in her opinion, intervention of the Court is not warranted, even in relation to the provisions of the Law that involve minors.

 

President D. Beinisch

1.    The question of the constitutionality of the provisions of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Citizenship Law or the Law) has come before us once again for adjudication. The Citizenship Law raises several basic issues that Israeli society must confront; first and foremost amongst these is the constant need to find the correct balance between security requirements and protection of human rights. The sweeping arrangements established in the Law give rise to difficult, complex questions  which are both legal and social in nature. These arrangements demonstrate the almost impossible reality with which the State of Israel is confronted both internally and externally. Israel is not the only state dealing with questions regarding immigration policy but it seems that the situation here is different from everywhere else. Israel is in a constant state of war or  “quasi-war”, and those who seek family reunification in Israel come from areas that are in a state of bitter conflict with Israel. But together with this bitter conflict, there are Arab citizens living in Israel who maintain ties with these people. Some of the ties are family ties. Those Israeli Arab residents and citizens seek to realize their rights, including their right to family life. Because the Arab minority constitutes the absolute majority of those seeking family reunification, any violation of their right to realize their family life is also a violation of equality. However, a certain number of spouses of Israeli citizens, who were permitted to live in Israel for the sake of family reunification, have abused their status and joined terrorist organizations; and ultimately, it was murderous terrorist attacks that spawned the need to legislate the Law and to adopt additional security measures.

In this complex reality, Israel must find an arrangement which, on the one hand, will allow for the maintenance of the security and protection of the State, but on the other hand, will not violate basic rights beyond what is necessary. Finding this balance is not a simple task. Every arrangement must be based on Israel’s social, cultural, ethical and legal background. The security situation with which Israel has been dealing since the day of its establishment must be its backdrop, but it cannot ignore the fact that the problems of security are a permanent fixture, and unfortunately, it is difficult to regard this situation as a temporary one.

2.    It is extremely doubtful whether the changes made to the Citizenship Law since the first judgment limit its application. The point of departure according to President Barak, in whose position I concurred in the first judgment, was a person’s basic right to choose a spouse and to establish a family unit with that partner in his country. This right, so we ruled there, is severely breached by the provision of the Citizenship Law in its establishment of a blanket prohibition against the entry of residents of Israeli-occupied territories, irrespective of whether that spouse poses a security risk. In our judgment we recognized the importance of the security requirements, and even of the need to establish presumptions of risk. At the same time, we pointed out that there cannot be an all-inclusive negation of basic rights, without any concrete investigation of the particular person and situation.

3.    In the framework of the amendments that were introduced after the first judgment, the “presumption” of security risk was not changed, and it was even extended. Under the Law at present, not only is no concrete investigation of the risk posed by the spouse or his/her family members or immediate surroundings required, but a general profile of dangerous activity that is taking place at the spouse’s place of residence is deemed sufficient. The list of the countries from which entry into Israel is prohibited was extended to all the states that are in a state of belligerence with Israel. The Law, in its former version and as formulated at present, does not allow for a concrete check of those seeking family reunification, and it does not have recourse to other means which involve a lesser violation of rights.

4.    We will also mention that not only the changes – the few changes – that were introduced into the Law are the focus of the petitions before us. They are accompanied by the fact that the Citizenship Law, which was enacted as a temporary order, has acquired permanent status on our law books. The Law has been extended twelve times since its enactment in 2003. The significance of this for a constitutional analysis of the Law is huge. The fact that the arrangement established in the Citizenship Law was enacted by way of a temporary order was the factor underlying the opinions of a significant number of judges in the first judgment, who held that in view of its set duration, the temporary arrangement obviates the need for a determination concerning a constitutional infringement and its proportionality. Reality, as we now know, has proved otherwise. The temporary order was extended many times, and even if it is possible that the same security need drove the extension, the question still arises as to whether, by means of the narrow chink through which temporary orders gain entry, the legislator was not attempting to introduce matters that would better have been given serious consideration, and in relation to which their introduction through the front door  should have been examined.

5.    In this situation, I can only repeat the position I expressed at length in the first judgment. The amendments that were introduced into the Law do not ameliorate the violation of the right to family life and the right to equality. I already pointed out in the previous judgment that absolute security does not exist in Israel, nor in any other state. Taking a risk is a necessary element of life in society and in the state, and the question, ultimately, is the degree of calculated risk that Israeli society is able to assume.

6.    In this context I will point out that I do not agree with recourse to the “precautionary principle” proposed by my colleague Justice Melcer. The precautionary principle is designed to deal with catastrophes when there is no scientific basis for their eventuation or for assessing the damage that they will cause. This principle allows for reduction, to the point of absolute obliteration, of the margins of risk that society is prepared to assume. By virtue of this principle it is possible to take far-reaching preventive action even in the absence of sufficient proof that the catastrophe will occur. My approach is that the conception of “preventive precaution” which gives priority to adopting the safe line – even where there is no direct causal connection between the act that is averted and its possible consequences – is an extremely wide one. It poses a significant risk not only of infringement of constitutional rights, but also of infringement of the processes of decision-making. This is because, if it is preferable to be safe in every case, there is no need to investigate the alternatives that reduce the violation. This approach has real potential for creating a slippery slope that is likely to lead to recourse to expansive regulatory means in order to prevent risk. It is not only the danger that was averted following recourse to the precautionary principle that must be considered, but also the risk that this itself creates.

7.    I do not concur in the position taken by some of my colleagues whereby the risk posed from permitting family reunification, subject to detailed checks or adoption of other means of testing is such that it justifies so broad a violation of basic constitutional rights. I am not arguing with the security needs. However, we must ensure that recourse to principles such as the precautionary principle – the goal of which is to impose very broad arrangements in order to prevent potential danger – do not themselves cause real harm. The Citizenship Law in its present formulation entails very significant harm. It impacts our most basic democratic conceptions. It involves a serious violation of the constitutional rights of the Arab citizens of Israel.

8.    My approach, as stated, is that even in its present formulation, the Law cannot be upheld due to its non-proportional violation of the right to family life and the right to equality. I believe that the proper balance was not achieved when the Law was analyzed in the first judgment, and the amendments that were introduced did not bring it to the point at which we could say that the Law is constitutional despite its violation of basic rights. The violation must – and also can – be ameliorated by changing the arrangement, be it by conducting detailed checks of those who seek family reunification; be it by allowing the refutation of the presumption of risk; or be it by broadening the possibility of acquiring status in Israel for humanitarian reasons. All these must find expression in legislation.

9.    Therefore, if my view is accepted, I would propose to my colleagues to order the Law to be invalidated, but to rule that it may be extended in its present format, if necessary, for an additional period not to exceed nine months. I am aware of the fact that in doing so, we will be allowing a law to remain in force despite its non-constitutionality. Nevertheless, in the present case immediate repeal of the Law would change the legal situation that pertained in the last eight years without a transitional period. An immediately-effective change in the reality will lead to a lack of preparedness on the part of the authorities responsible for implementation of the Law, and will increase the danger to which the public is exposed. Secondly – and particularly – this amount of time is required in order to allow the legislator to formulate a statutory arrangement.

 

Justice A. Grunis

The words of President A Barak (EA 2/84 Nayman v. Chairman of the Central Elections Committee for the Eleventh Knesset [6], at 310; CrA 6669/96 Kahana v. State of Israel [7], at 580) are based on the statement of Justice Robert Jackson of the United States Supreme Court in 1949 (Terminiello v. City of Chicago [10]). Justice Jackson, who was in the minority, warned his colleagues, the majority justices, in the following words:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact  (ibid., at p. 337; my emphasis – A.G.).

These words of warning are what guided me when I expressed my opinion in the earlier process (Adalah Case), in which we were asked to examine the constitutionality of the Citizenship Law. I believed then, and this is still my opinion today, that the Law meets the criterion of constitutionality.

2.    I am prepared to assume that the Law infringes the constitutional right of the Israeli couple to family life. I stress that this is only an assumption. This emphasis is intended to clarify that in principle, I am not one of those who accord the explicit constitutional rights in Basic Law: Human Dignity and Liberty extremely wide, comprehensive significance. As I said in my opinion in the previous process:

The very broad definition of the constitutional right … leads to a situation in which quite a few laws will be considered as violating constitutional rights … the outcome is liable to be a devaluation of constitutional rights (Adalah Case, at p. 513); and see my opinion in  HCJ  8276/05 Adalah, Legal Center for Minority Arab Rights in Israel v. Minister of Defense [8]).

Nevertheless, in view of the abovementioned assumption, I considered the question of whether the Law met the criteria of the limitation clause. I focused on the third criterion of proportionality, known as proportionality sensu stricto. According to this criterion, we must look at the relationship between the social benefit of the law that is under scrutiny and the damage caused by the constitutional violation. On this matter, I can only mention once again the certain harm that will be caused as a result of the entry into Israel of thousands of Palestinians, who have received the status of permanent residents or citizens as a result of marriage to Israeli citizens. On the basis of past data, there is no doubt that a certain percentage of them will be involved in terrorist acts. Indeed, the percentage of those involved in terror is expected to be very low, even negligible. However, even if the extent of the damage that will be caused cannot be assessed, it is clear that it will occur. There is no need to describe the consequences of terrorist acts.

3.    The relationship between social benefit and harm must be examined also on the assumption of a mistake on the part of the person who would negate the Law, as opposed to a mistake on the part of one who holds the view that the Law meets the constitutional criterion. Disqualification of the Law will lead to the entry of thousands of Palestinians into the State following their marriages to Israeli citizens. If it should emerge in the future that those who would disqualify the Law were mistaken in their low estimate of the risk, it will not be possible to turn back the clock. In other words, if – Heaven forbid – it emerges that there is involvement in terrorist acts, it will definitely not be possible to correct the mistake. It may be possible to revoke the status in Israel of those who turn out to be involved in terrorist activity, but this solution will be available only after the damage – harm to human lives – has already been done. On the other hand, if the Law does meet the constitutional criterion, this will lead to harm to Israeli citizens, who are not able to establish families with Palestinians, or to a familial separation between the Israeli spouse and the Palestinian spouse. I am certainly not belittling this harm, and what is more, from a numerical point of view quite a number of Israeli citizens are effected. Nevertheless, this violation of the right to family life of Israeli citizens has to be weighed up against the certain harm, on the basis of past experience, to the lives and persons of Israeli citizens. We must consider another point – one which I mentioned in my opinion in the previous process. None of the judges who are of the opinion that the Law cannot stand, whether in the previous process or in the present one, provided any example or precedent from any other country for a similar situation of a law being struck down.  Israel has been in a constant battle for decades against states and organizations that wish it ill. Even if the status of residents of the Palestinian Authority is not identical to that of nationals of an enemy state, it is more similar to that latter status than to the status of nationals of a friendly state. To the best of my knowledge, there has not been even a single case in which a state permitted entry into its territory of thousands of  nationals of an enemy, whether for the purpose of marriage or any other, at a time of war or of armed struggle. There is no reason for Israel to be a pioneer in this field.

4.    In the framework of her opinion, my colleague Justice M. Naor discussed the arguments on the subject of minors. I concur in her opinion on that issue.

5.    In summary, I stand firmly by the opinion I expressed in the past: the Law passes the test of constitutionality, and therefore, the petitions should be denied.

 

Justice E. Hayut

In the Adalah Case, I concurred in the opinions of those justices who held that although the Citizenship Law is consistent with the values of the State of Israel and was enacted for a proper purpose, the arrangements it provides are not proportionate, and for this reason they do not pass the constitutional test. Following this judgment the Law was amended on 28.3.2007 (hereinafter: the second amendment), and three central changes were introduced: first, sec. 3A1 was added to the Law, whereby the Minister of Interior is permitted, “for special humanitarian reasons” and on the recommendation of a professional committee that he appointed for that purpose, to grant a license for temporary residence in Israel or to approve an application for a permit for an inhabitant of the area whose relative is in Israel lawfully to remain in the State; second, the Law was applied, in addition to inhabitants of the Area, also to residents of Iran, Lebanon, Syria and Iraq (see the Addendum to the Law); third, the definition of prevention for security reasons appearing in sec. 3D of the Law was broadened. The last two amendments in effect extended the scope of the prohibitions established in the Law, and therefore they cannot provide a response to the lack of proportionality which afflicted the arrangements in the Law in its previous format. As opposed to these, the amending arrangement appearing in sec. 3A1 of the Law allows for a license for temporary residence or a permit to stay in the country to be granted “for special humanitarian reasons”, but this is an exception designed for exceptional circumstances and rare cases only, and it therefore cannot repair the defect of lack of proportionality from which the Citizenship Law suffers.

2.    In the Adalah Case I expressed my position that the enactment of laws that provide a response to security needs is one of the means available to us as a state in order to deal with the security risks to which the Israeli public is exposed. I further pointed out that imposing restrictions on family reunification for security reasons is a necessity, and should not be condemned. This is still my opinion. Nevertheless, it seems that the problem of lack of proportionality that taints the Law has not been resolved. I discussed the core of the problem in this context in the Adalah Case in saying that the Law “does not include any individual criteria for examining the security risk of an inhabitant of the Area”, and I added that given the special, complex security situation of the State of Israel, a presumption of risk in the matter of family reunification is warranted, but this presumption should be rebuttable in the framework of an individual, detailed examination which should be permitted in each and every case.

3.    The Citizenship Law, even in its format after the second amendment, continues to preserve the blanket prohibition prescribed in sec. 2 of the Law concerning the granting of status to an inhabitant of the Area (except for a general criterion of age), and largely blocks the path even of those who meet the age criterion or who comply with the requirement concerning the “special humanitarian reasons”.  This is in view of the broadened criteria that were added in relation to the existence of “security-related prevention”; they now also cover a concern about a security risk that stems, inter alia, from the fact that in the place of residence of an applicant who is an inhabitant of the Area, activity is being conducted that is liable to pose a threat to the security of the State of Israel or its citizens. The second amendment to the Citizenship Law does not, therefore, offer any response to the problems emanating from the collective arrangements that it prescribes, and apart from really exceptional cases, no detailed check is carried out by virtue of this Law in relation to those who seek to reunification with their families, and they are not given any practical opportunity to refute in a positive manner the presumption of presenting a danger that is attributed to them. This constitutes a severe violation of the constitutional right to family life of each of the individuals in the group, and it is exacerbated by the fact that this is not a short-term, targeted violation but a violation with long-term consequences. Moreover, the Law was indeed intended to provide a solution to the security needs of the State of Israel, given the armed struggle that the Palestinian terrorist organizations wage against Israel’s citizens. At the same time, the collective nature of the policy anchored in the Citizenship Law – which in fact has the capacity to negate the particular identity of the individuals who belong to that collective – and the disproportionate violation of equality due the arrangements prescribed in the Law, are liable to create a semblance of illegitimate racial profiling which ought to be avoided. When the collective prevention prescribed by the Law remains in place; when the second amendment broadened the collective criteria blocking family reunification between Israeli Arabs and spouses who are inhabitants of the area; and when the people concerned are not given the chance to prove, on the individual level, that they do not pose a security threat, the constitutional defect of lack of proportionality that impaired the Law remains.

4.    My colleague Justice H. Melcer believes that in this case, the “precautionary principle” ought to be applied. On this matter I prefer the stance of my colleague President D. Beinisch. The clear disadvantage of this principle, or at least in the way that my colleague Justice Melcer wishes to implement it, lies in the fact that it ignores the fact that the all-encompassing means adopted in the face of the danger whose prevention is sought, in itself creates dangers and harms that are liable to be significant for society or at least for certain groups therein. Therefore, the conclusion is unavoidable that application of the precautionary principle in the said manner displays great sensitivity to the dangers of only one certain type, and it is not sensitive to other harms that are liable to be caused by the very fact of its implementation. The totality that its application involves does not leave room for a correct balancing between the interests – however important they be – that we are required to protect, and the harms and the violations that may well occur as a result of the implementation of the means in this manner. Implementation of the precautionary principle has, to a great extent, the capacity to divest the third sub-criterion of the requirement of proportionality – which is one of the foundational components of the rules of constitutional review in the Israeli legal system – of all content.

5.    For all the above reasons, I concur in the conclusion reached by my colleague President D. Beinisch and my colleagues Justices E. Levy, E. Arbel and S. Joubran, whereby the Law should be declared void.

 

Justice N. Hendel

Difficult constitutional decisions bring out the best in the work of the judge, and at the same time they expose the weakness of the judicial task. The reasoning in various opinions is rich and even personal in a positive sense. But decision-making is far from an exact science, and far from a world in which there is one correct, clear answer which has the power to persuade all those dealing with the case. Against this backdrop my position will be presented.

Violation of a Constitutional Right

1.    The preliminary question is whether the Citizenship Law, with its amendments (hereinafter: the amended Law) violates a right under Basic Law: Human Dignity and Liberty. In my opinion, the answer is affirmative due to the combination of infringements of two rights: the right to realization of married life in Israel, and the right to equality.

First, I will comment that there is no constitutional right vested in each citizen to bring a foreigner into the borders of his state, even if he is married to that person. A state is entitled to set immigration law, and the hearts’ desire of its citizens cannot dictate policy in this area. This is so in general, and it is particularly so if the partner is a citizen or inhabitant of an enemy state or entity.

As for equality: when the court examines a violation of equality, it must also examine the practical aspects of the outcome, and whether there is clear, unjustified consequential discrimination. It will be stressed that consequential discrimination is not derived from the intention to discriminate. Take, for example, the present case. I do not believe that the purpose of the amended Law is to discriminate. The purpose is security-related. However, the consequence of the amended Law discriminates between the Jewish and the Arab citizens of the State. This consequence constitutes a constitutional violation. This is the cumulative power of the violation of the right to equality and the right to immigration of a partner for the purpose of marriage. To this is added the fact that the prohibition in the amended Law is sweeping, and it is not conditional upon an individual examination of the foreign partner.

In the overall assessment of the violation of the right of the Israeli partner to bring the foreign partner from the Area and of the lack of practical equality, I found that there is a constitutional violation that necessitates an examination of the amended Law according to the limitation clause.

Limitation Clause – Section 8 of the Basic Law

2.    The permit to violate a constitutional right includes several conditions: (a) by law; (b) befitting the values of the State of Israel; (c) enacted for a proper purpose; (d) and to an extent no greater than is required. The last test, that of proportionality, comprises three sub-tests: (1) the test of the rational connection; (2) the test of the means involving the least violation; (3) the test of proportionality in the strict sense. In my view and that of most of my colleagues, it is not difficult to determine that the first three conditions are met, and also the first two sub-tests of proportionality. The disagreement mainly boils down to the third sub-test.

The Test of Proportionality sensu stricto

In the framework of this test, the harm caused to the constitutional right must be weighed against the benefit to the public interest as a result of the violation. In my view, the constitutional right that is violated must first be positioned on the scale of constitutional rights, and the relevant public interest must be juxtaposed to other interests. Such “prioritization” of the rights and interests can assist the court in carrying out the task of constitutional balancing. This is similar to the approach in the United States, where it is customary to rank the constitutional rights on three levels for the purpose of determining the level of judicial scrutiny.

As I mentioned, the prohibition on bringing in a foreign partner who is an inhabitant of the Area, and establishing a family with this partner in Israel, together with the consequential discrimination against Israeli Arab citizens, entails a violation of a constitutional right. But this right, and its violation, is not ranked high on the scale of rights. As opposed to this, the public interest is state security. This interest is highly placed. It is interesting to note that the right to family life does not appear explicitly in the Basic Law, whereas the Law states expressly that “There shall be no violation of the life, body or dignity of any person as such.” From this one can learn that the protected public interest occupies a very high rank on the scale of values of the State of Israel.

4.    The outcome whereby an Israeli citizen who belongs to a particular national group will be prevented from bringing a foreign spouse into the State, without any detailed check of whether that person is dangerous, is harsh. This is one side of the coin. The other side is that concern about injuries to persons relates to a matter of certainty, or at least one of high probability. From the factual data that was submitted it emerges that the benefit deriving from the Law regarding reduction of the probability of future attacks is very considerable. It will be recalled that a “successful” attack is liable to cost the lives of dozens of Israeli citizens, and also those who are “only” badly or moderately injured pay an unbearable price. To this must be added the moral consideration that is cited in the Mishna in Tractate Sanhedrin (4:5), whereby “if any man has caused a single soul to perish ….[it is] as though he had caused a whole world to perish; and if any man saves alive a single soul … [it is] as though he had saved alive a whole world.”

As for violation of a constitutional right, and the consideration of proportionality, regard must be had to the exceptions in the amending Law. I will mention two of these. One is the exception relating to age: the sweeping prohibition is not applicable to a male inhabitant of the Area over the age of 35 years, and a female inhabitant over the age of 25 years. From the data that was presented in this case, it emerges that the age exception reduces the affected group by some 30%. The second  is connected to the Humanitarian Committee (sec. 3A1 of the amended Law). As I see it, the powers of the Committee and the discretion granted to it should be interpreted more widely than is done today. The two exceptions that I have mentioned – age and the Humanitarian Committee – do not cancel out the constitutional violation, but they blunt its intensity.

5.    Decisions on the narrow proportionality test are not all made of the same stuff. There are cases – and such is the case before us – in which the decision is difficult. The two competitors – the right that is violated and the public interest – tug mightily at each end of the decision rope. In these situations, there is a constitutional domain in which more than one answer is possible (similar to the margin of appreciation in the law of the European Union). Any law falling within this domain will be considered constitutional.

We are faced with a difficult case. The decision is a matter of degree. It is not surprising that this issue has twice been brought to court, and that each time, the outcome was determined by a majority of one justice in a bench of eleven justices. Of course, the existence of disagreements does not dictate a particular outcome. But here, ultimately, the difference in the opinions lies, in my opinion, in preferring to prevent the harm caused by the amended Law as opposed to preferring the marginal benefit of the amended Law. These disagreements, too, lead to the conclusion that this case falls within the parameters of constitutionality.

6.    Through this prism I considered the position of the interest of the defending Israel’s security in the ranking of public interests, and the position on the scale of constitutional rights of the constitutional violation with regard to the Israeli partner. I also examined the magnitude of security risk and its extent, as opposed to the damage caused to the basic rights, bearing in mind the exceptions in the amended Law. All this was executed against the backdrop of the factual web that was presented, with an awareness of the possible constitutional domain in this case. In short, my view is that declaring to law to be void is not warranted.

Summary

The amended Law was enacted as a temporary order, which was extended a dozen times. The passage of time, and the many extensions of the amended Law, do not, in my view, help the position of the State. The harsh climate accompanies us all year long, and has done so for a great many years. When we sit as the High Court of Justice, we are bound, in our judicial review, to watch the clock as well. My view is, as stated, that the Law should not be declared void. At the same time, the State would do well to formulate a law that deals with the subject of immigration in the present context and in general. According to the updated notice of the State counsel, this is being pursued energetically. In the event that no such new law is enacted, from the point of view of constitutional review it is to be expected, at the very least, that discussion of any extension of the amended Law will be comprehensive, thorough and substantive. Similarly, it is to be expected that the legislature will be attentive to the changing reality, in order to examine whether the violation of constitutional rights is still justified.

8.    In the final analysis, my view is that the petitions must be denied.

 

Deputy President E. Rivlin

The Issue in Dispute and the Role of the Court

1.    The petitions raise a question about the protection of human rights. The question concerns the imposition of statutory limitations on the right of non-resident foreigners to acquire citizenship by virtue of their marriage to citizens of a particular state, when such foreigners reside in an area hostile to that state. This question lies at the heart of a public dispute. The issue is complex, and the way in which it has been handled illustrates the way in which the Israeli legal system handles questions that spill over into the public and political debate.

2.    In practice, every legal system deals in its own way with the dilemma posed by a question of the type that was raised here. The way it approaches the question is a function of the political system, or the constitutional and social structure, and of the governmental culture. The core role of the constitutional court is to protect human rights, particularly minority rights or rights of other weak groups. This is not an easy task. In its formal sense, democracy is the rule of the majority. In its substantive sense, it is a regime in which minority rights, too, are protected. In order to fulfill its core function in a free society, i.e., the protection of basic rights,  in all legal systems the court must conserve its limited resources.

The resources available to the court are limited. Over two hundred years ago, Alexander Hamilton noted that the judiciary has no control over the “purse” and over the “sword”, hence its weakness. He attributed the weakness of the judiciary also to the fact that “it has no will of its own” – for it decides only those disputes that others bring before it, and it does not initiate decisions that are not based on a genuine conflict:

The Judiciary … has no influence over either the sword of the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will (The Federalist no. 78).

Because the judiciary has neither purse nor sword, nor a will of its own, the principal resource available to it is public trust. Descending into the public battlefield, when unnecessary, is liable to dissipate this precious resource. In the past, I have said that refraining from entering the arena of political dispute and showing deference to the political authorities in the appropriate cases is not intended to increase the power of those authorities, but to conserve the resources of the judiciary. This is the dilemma facing every constitutional court  and every court of administrative affairs. On the one hand there is a need for judicial and constitutional and administrative review – review that stands at the center of the work of the court – and on the other hand, there is a desire to refrain from entering the arena of public controversy, an entrance which is liable to use up resources available to the  court. We will illustrate this in one other constitutional system as well as in our system.

The United States: Doctrine of Non-Justiciability

4.    The Third Chapter of the United States Constitution limits federal jurisdiction to cases and controversies. This limitation, when accompanied by the rules of judicial prudence, has shaped the parameters of the standing of a person who brings a case before an American court; in other words, there must exist a personal interest that is likely to be resolved through litigation. The need for the existence of a personal interest is the outcome of the requirement that there be a harm that is not abstract or hypothetical – harm to the litigant who comes to court, and not someone else. To this are added other filters that together come under the aegis of the doctrine of non-justiciability. Justiciability is absent in cases which are not yet ripe for adjudication, or if the subject-matter is theoretical, and in all those cases that are termed “political questions”. Non-justiciability in some of these cases lies, at base, in the principle of separation of powers. Under the rule of lack of ripeness, the United States court will refrain from adjudicating an argument whose validity depends on a future development, which itself might well not eventuate as expected, or not happen at all (see e.g.: Texas v. United States  [11]). A potential violation of a right does not entitle one to relief. Another barrier is found in the doctrine of the theoretical subject, i.e., mootness, that directs the court not to adjudicate a hypothetical or academic dispute, where the judicial decision will not affect the rights of the parties to the process. There is also a lack of justiciability where the question is essentially a “political question”. Non-justiciability in “political questions” reflects a conception according to which questions which the judiciary has neither the tools nor the criteria to resolve. The United States Supreme Court has drawn up guidelines for examining whether a question is a political one with which the Court should not deal: where there is written constitutional provision assigning the matter to the political authority; where there are no obvious judicial criteria than can be applied in order to resolve the question; where the question in dispute cannot be resolved without deciding in advance on policy that is not within the discretion of the Court; where there is a clear and special need to abide by a political decision that has already been made; and where there is a potential for a multiplicity of conflicting decisions on the part of the various authorities on the very same question (Baker v. Carr [12]). Apart from the “political questions”, the United States Supreme Court defers to the political authorities in other matters that fall within their area of expertise: they do so out of recognition that not all matters were intended to pass beneath the rod of judicial discretion, and that there are matters which are better left to be decided by the elected authorities.

5.    One of these matters is that of immigration and entry into the United States; here, the doctrine of deference in the United states reached the peak of its application. It was decided that as a rule, deference in these matters is absolute, and the political powers are vested with plenary power (Jon Feere, “Plenary Power: Should Judges Control U.S. Immigration Policy”, Center for Immigration Studies, Feb. 2009). Thus, for example, the U.S. Supreme Court noted, in 2005 (Clark v. Suarez Martinez [13]) that Congress had the power to introduce legislation that protected the security of the State borders, in addition to the legislation enacted in 2001 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001).

This conception of matters of immigration was, inter alia, the outcome of the doctrine of the “political question”, namely, the refusal to adjudicate cases that involved determining policy that ought to be determined by the body that represents the public interest and which is accountable to the public. The connection between immigration and foreign relations, between immigration and national security, and between immigration and other subjects that involve the determination of policy, has formed the basis of non-intervention on the part of the courts. In addition, the U.S. Supreme Court’s approach was served by considerations of institutional inability to make political decisions in the framework of immigration laws which by their nature are created by the political authorities. “Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens” said the US Supreme Court (Fiallo v. Bell [14]). When security considerations formed the basis for the decision to expel an alien from the United States, the American court refused to intervene, even though the person involved was married to an American citizen who had served in the United States Army. This was stated emphatically: an alien who wishes to enter this country cannot claim a right of entry. Permitting the entry of aliens into the territory of the United States is a privilege conferred by the sovereign on the United States government. This privilege is granted to an alien only in accordance with the conditions that the United States determines. It must be implemented in accordance with and by virtue of the process that is to be set by the United States (Knauff v. Shaughnessy [15]).

There in the United States too, however, and even on matters of immigration, the court does not entirely refuse to regulate the rules, and one can find cases in which the court abandoned the doctrine of plenary power vested in the authorities in those matters (see, e.g., Zadvydas v. Davis [16]).

6.    Our older sister – the American constitutional law system – experienced historical shifts that rocked the boat of case law this way and that, until it stabilized. American history presents us with a clear picture of the dilemma facing constitutional courts in every free legal system: the need to fulfill the core function – protection of human rights – and the need to recruit the necessary resources in order to overcome the difficulties presented by every political culture to the court that fulfills its core function. American history reflects the harsh consequences of Lochnerism – a case that became a concept in the wake of the decision in Lochner v. New York [17], in which the Supreme Court ruled that a New York State law that set an upper ceiling on the number of working hours of bakers was void in that it was unconstitutional. This was a protective labor law, and the judgment aroused widespread, almost universal, criticism as a symbol of excessive intervention in value-based matters, and in matters concerning the regulation of economic policy – in relation to which the court ought to have deferred to the statutory regulation.

7.    The effects of the Great Depression at the end of the 1920s and the beginning of the 1930s cast a dark shadow over the intervention of the courts in economic regulation of Congress, which sought, on its part, to heal the economy in the framework of the laws of the New Deal. During his second term of office, President Franklin Roosevelt, riding the wave of public criticism of the court, proposed the court packing plan, which was designed to cripple the court. The Lochner era came to an end: the new legislation, beginning in 1937, once again respected the choices of the legislature in the economic field, as long as they were supported by some sort of rational basis. Recognition was once again accorded to the broad power of both the various states and the Federal government to regulate economic matters.

8.    The end of the era of Lochnerist intervention was clearly manifest in the foundational decision in United States v. Carolene Products Co. [18]. However, at the very time that intervention in economic policy was terminated, and in the very same decision, the first signs of the renewed flowering of protection of basic human rights appeared. In a historical footnote included in that judgment (footnote 4), the US Court pointed out, albeit with the caution that was a product of its clipped power, that “it is possible that there would be a greater proclivity on its part” for constitutional judicial review, when at stake was a law that violated human rights, or a law that limited the ability of the political process to block unwanted legislation, or a law that discriminated against a discrete and insular minority. The Court formulated the two sides of the coin that was minted in that tempestuous period – respect for the authorities where this was due, and validating laws as long as they were reasonable and logical on the one hand, and on the other hand, simultaneously, a clear and courageous statement that deference would not apply to laws that violate basic rights or laws that discriminate against vulnerable minorities. The way in which the US court dealt with the dilemma of justiciability was to take one step back followed by a courageous step forward. In the foundational footnote that symbolized the beginning of the revival of the US court, the strong protection of freedom of expression, of liberty and equality, of privacy and of personal autonomy, was fashioned. The US court became a beacon from which the light of liberty shone forth.

Israel: On Governance and Accountability

9.    The various legal systems, we said, struggle with the need to fulfill the core function of the court in the framework of the realities in which they operate – each in its own way. The Israeli legal system adopted a path that was different from that chosen by the United States. The American system adopted a rigid approach with respect to the intervention of the courts in matters that were the subject of public controversy; our system chose a different approach due to the reality in which the Israeli courts operate. This reality is affected by legislative failures and by a lack of governance on the part of the executive authority, resulting in an absence of statutory regulation of essential subjects, or acceptance of partial or temporary legislative regulation – as attested to by the Law with which we are dealing, with all its flaws.

In a parliamentary system of government of the Israeli type, the government (the executive) governs by way of application of the normative rules that are fashioned by the parliament. Normally, it is within the power of the executive authority to initiate legislative processes, and even to influence them by means of the support of the majority it enjoys in the legislature. This is governance. But governance has a price. He who exercises power bears responsibility for his actions. He who has sovereignty in the exercise of his powers by virtue of the law assumes accountability vis-à-vis the public. Refraining from making executive and legislative decisions on substantive questions detracts from governance, and it represents a certain denial of accountability. Moreover, transferring the onus of regulating matters that are the responsibility of the executive and the legislative branches to the judiciary imposes upon the latter the consequences of the weakness of the first two. Contrary to what many think, such a choice in fact weakens the judicial authority.

10.  Civilized countries have a clear, comprehensive policy of immigration and of nationalization. In many states, the establishment of norms that regulate the entry of foreigners was intended to ensure that such entry would not impose an economic and security burden upon the citizens and inhabitants, that it would not be detrimental to their health nor to the welfare of the public and its way of life. This is when times are normal.

In times of war or of armed struggle, the nations of the world limit the entry of enemy nationals into the state. These limitations also apply to immigration for the purpose of marriage, and they are recognized by law. Even where there are no security considerations, states limit immigration for the purpose of marriage. European states are constantly tightening conditions for immigration into their territory for demographic reasons. The European Court of Human Rights gave support to the rights of these states to limit matrimonial immigration into their territory. The rules of International law do not recognize a right of immigration for the purpose of matrimony, and they do not impose an obligation upon states to guarantee family reunification in their territory.

11.  And in Israel: instead of a normative, principled and comprehensive regulation of immigration policy, to this day we have bits of arrangements. Temporary orders, made up of assorted scraps, are not an alternative to a comprehensive normative arrangement. The Temporary Order in the present case, too, changes from one moment to the next. Over the years, exceptions and reservations have been inserted into the preliminary prohibition on granting the right of entry and status to an inhabitant of the Area, or to a citizen or inhabitant of an enemy state specified in the Law, most of which were designed to mitigate the prohibition. The absence of a comprehensive legislative arrangement on matters of immigration has led to a situation in which the questions that required comprehensive resolution have once again been laid piecemeal at our door, and we are required to decide once more the question of whether a “temporary order” will remain in force.

The statutory vacuum in the Israel reality forced the Court to depart from the core judicial function and to touch upon questions that are the subject of a heated public controversy. This distancing, which is the result of constraints placed on the courts in Israel, made it necessary to replace doctrinal non-justiciability, which is familiar to us from other legal systems, with discretionary non-justiciability. The doctrine of justiciability in its classic formulation became more moderate, but the logic on which the doctrine was based did not disappear, and it has always formed the basis of the judgments of the Supreme Court. We do not dismiss out of hand questions that are at a remove from the core judicial function – constitutional or administrative – but we do not ignore the need of the Court to choose, from amongst all the issues that are laid at its doorstep, those issues which call for discussion in the existing social and political reality. The further we draw away from the constitutional core, the more we are liable to be asked to pull the chestnuts out of the fire for the political branches. The Court itself determines the parameters of justiciability, as well as the parameters of intervention in the actions of the political authorities. Where the Court is confronted with the question of whether to delve deeply into political, social and economic questions, it is expected to act in accordance with the best rules of deference. Considerations of non-justiciability, which in Israel, as we have said, are differentiated from an independent doctrine of non-justiciability, due to the constitutional structure and the problem of governance, find expression in the arena of deference. Thus, for example, the arena of reasonability outlines the arena in which the administrative authority is authorized to make decisions, according to its discretion. The arena of reasonability is influenced, on its part, by the arena of deference.

Between Deference and Judicial Review: Conservation of Resources for the Sake of Protection of Human Rights

12.  As stated, the resources available to the court, and primarily, public trust, are precious and limited. The court must store as much of them as it can, and refrain from “wasting them”, where possible and appropriate. There will be a day when it will have need of them, when it is called upon to protect the human rights of Israel’s citizens, and primarily, the citizens who belong to the weaker sectors. It needs them in order to protect unpopular views and the right to express them; it needs them in order to ensure liberty; it needs them to ensure the right to equality. It needs them when it is required to protect the minority, the weak and the poor. It must use its strength and power in order to afford unreserved protection of liberty. Deference towards those subjects that are at the heart of political endeavor is in no way intended to detract from judicial review of the court. “Deference” cannot detract from constitutional review: it is designed to secure the resources  necessary for its existence. “Deference” does not mean denial of responsibility; deference is not the withholding of an opinion. On the contrary: it is a condition of strong constitutional review. Indeed, the Court’s abstention from entertaining and deciding on certain subjects is liable to be perceived as a handicap and a weakness. In reality, in this way the courts defend themselves by means of filtering mechanisms. Through these mechanisms, the courts can refrain from dealing with matters which they ought not to be deciding. This is a privilege accorded to the courts, and it is this that conserves their strength and their resources. Thus their accountability retains its position: in the court of the political authorities.

13.  In its protection of human rights, judicial review must be, in the words of Justice Brennan in another context, “fearless, vigorous and uninhibited” (New York Times Co. v. Sullivan [19]. The arena of deference that we designate for the activities of the other authorities will take into account our fundamental constitutional principles and our conception of the balance between the relevant considerations regarding the exercise of judicial review. The special importance of judicial review in those cases in which fundamental human rights are at issue should be recognized. Here it is important for judicial review to utilize the full extent of its power and ability. It will have this ability if it succeeds in refraining from dispersing its legal and social resources that are nurtured by public trust where the area of deference widens.

The Question in Dispute

14.  The issue to be decided here today is of the kind that lies at the core of the judicial function due to the fact that it gives rise to questions of protection of human rights, but at the same time, due to the legislative omission, it touches upon a sharp public controversy and political debate. Our decision will be made on the basis of the rules of constitutional review, while having regard to the principles of deference.

In the petitions before us the question of protection of human rights arises. The quest for equality provides a backdrop to the petitions. Another basic right also underlies the petitions, i.e., the right to family life. There is no doubt that imposing restrictions on immigration in some way violates these basic rights. True, this violation is not in itself directed at Israeli citizens. It violates the basic rights of Israeli citizens only where the realization of their right is conditional upon granting a right to foreigners who reside in radical enemy states, such as Iran or Syria, or to foreigners who live in areas in which intense terrorist activity, targeted at Israeli citizens, occurs and is based. However, even a violation that is not directed, from the outset, at the basic rights of Israeli citizens, justifies constitutional review as long as it exists. The protection of constitutional basic rights is the very heart and the purpose of the authority to exercise judicial review. That is its function. It is the violation of human rights that justifies the examination of the constitutionality of the contents of the Citizenship Law.

The Constitutional Right

15.  I have already expressed my opinion that the constitutional question cannot be divested of the reality in which it is cloaked. It cannot be placed in a world that does not exist – on another planet. The constitutional question is adjudicated here and now – in a state that is hurting, struggling to maintain its existence on a strip of land that is ablaze, a state which tries to avoid becoming “another planet”.[1] The reality is a comprehensive one, for which it is difficult to set analytical boundaries, just as there is no place to draw an analytical, artificial distinction between the case of an Israeli partner who wishes to marry and that of the foreigner whom s/he wishes to marry. The right of the Israeli partner affects a particular segment of the right – a segment in which the foreign spouse is a partner; we cannot close our eyes to the identity of the foreigner, to the political entity to which he or she belongs, to the identity of the elected leaders of that entity and to the circumstances in which the matter is being adjudicated. Since the hearing in the previous petition, the Hamas Organization has taken control of some of the Territories. This reality is a true one, and it must be taken into consideration when, in the framework of the constitutional balance, we are called upon to decide on the constitutionality of the restrictions that are placed on basic rights.

16.  There is no doubt that the Citizenship Law affects the possibility of full realization of the constitutional right to family life and the constitutional right to equality. It does not negate these rights. It detracts from their full scope. The Law does not prevent the Israeli spouse from marrying a partner from the Area; neither does it prevent the Israeli spouse from realizing the right to family life in the Area, or in any other place outside of Israel. However, it detracts from the right of the Israeli spouse to establish the family unit within the borders of Israel in those cases in which the foreign spouse is an inhabitant of the Area specified in the Law before us, and belongs to one of those groups whose entry from the Area into Israel the Minister of the Interior was empowered to prevent. The result of this is also a violation of equality, in that most of the Israeli spouses who marry inhabitants of this Area are Arab Israelis.

17.  Moreover, the defined range of human rights should not be contracted in times of emergency. Neither should different balancing criteria be adopted in difficult periods. The Basic Laws do not recognize two systems of laws, one of which applies in times of calm and the other, in times of emergency. Israeli constitutional law has a uniform approach to human dignity and liberty both in times of peace and in times of danger. The statement of Justice Holmes in the case of Schenck v. United States([20]), according to which things that are said in times of peace may sometimes not be said in times of war, is not understood as a call to deviate from the constitutional criteria themselves in times of emergency. This applies to freedom of expression, and to other basic rights. The criteria on the basis of which we examine restrictions on human rights are uniform at all times. The criteria are identical. But we should recall that their implementation is affected by the factual situation.

The question which has returned to our doorstep today is, therefore, whether the conditions that permit a violation of the basic rights that we have discussed have been met.

The Conditions for Detracting from a Constitutional Right

18.  The limitation clause of Basic Law: Human Dignity and Liberty sets four conditions for violating a constitutional right: the violation of the basic right must be by law or according to a law; the law must befit the values of the State of Israel; it must be enacted for a proper purpose; and its violation of the right must be to an extent no greater than required. Most agree that the first and second conditions are met here. The dispute turns on the question of whether the third and fourth conditions are met, i.e., if the Law was enacted for a proper purpose and if its violation of constitutional rights is greater than necessary. The first of these conditions deals with the purpose, and the other – with the appropriate means of realizing this purpose.

It seems to me that there can also be no dispute that the Law was enacted for a proper purpose. The purpose of the Law in this case is security-related, and it is to reduce, insofar as possible, the security risk posed by the foreign spouses who enter Israel. At the basis of the legislation lay the security concern about involvement in terrorist activity on the part of the Palestinian spouses, who hold Israeli identity cards by virtue of their marriage to Israeli partners. The concern is about abuse of this status in Israel – a status which allows for free movement between the area of the Palestinian Authority and Israel. History shows that this is not a baseless concern. This purpose is a proper one.

The fourth condition listed in the limitation clause requires that the violation of the right be no greater than is necessary. It is not enough that the purpose is proper: the means that are adopted for its realization must also be proper, i.e., proportional. The words “to an extent no greater than is necessary” have been interpreted in Israeli case law, following foreign case law, as implying three sub-criteria: that of suitability (the rational connection); that of necessity (the means which involves the least violation); and that of proportionality. The first sub-criterion requires the existence of a rational connection between the (proper) purpose and the means selected for its realization. This is the criterion of common sense and of life experience. From amongst the  means that create the rational connection between the proper purpose and the means, the means which involves the least violation should be chosen – that is the second sub-criterion. The third sub-criterion is that of overall balance. It looks at whether the relationship between the benefit derived from achieving the (proper) purpose – prevention of risk – and the damage caused (as a result of the violation of the constitutional rights  achieves a proper balance between the needs of the general population and the harm to the individual.

The third sub-criterion (of the three sub-conditions of the fourth condition – the requirement of proportionality) i.e., the criterion of relativity, imposes the task of striking the balance on the court. This balance is not detached from the examination conducted by the court in the framework of the first two sub-criteria. Moreover, in many cases, once it has been proven that there is a rational connection between the purpose of the law and the means it selected (the first sub-criteria), and once the Court is convinced that the purpose of the law cannot be achieved, as it stands, by recourse to less harmful means (the second sub-criterion), it is a short road to the conclusion that the proper overall balance is achieved as well (the third sub-criterion). However, a positive decision in relation to the first two criteria often led to a rapid decision on the question of the third sub-criterion (see, e.g., R. v. Keegstra [1990] 3 S.C.R. 69; McKinney v. University of Guelph [1990 3 S.C.R. 229). This natural channel led some to the conclusion that the third sub-criterion is in fact a superfluous stage in the constitutional examination.

I believe that there is no room for a sweeping conclusion that if the first two sub-criteria are satisfied, the question of the existence of the condition of proportionality will necessarily be answered affirmatively. Indeed, the third sub-criterion should not be isolated from the other two; the response to each of these has an understandable effect on the others. However, the importance of the last criterion should not be underestimated, just as the importance of each of the sub-criteria in itself should not be inflated. These sub-criteria should be implemented, with sensitivity being shown to the circumstances of each case  (Libman v. Attorney General of Quebec [23]). This is not a matter of guidelines alone. The sub-criteria, as adopted, outline the way in which judicial review should be exercised with respect to the condition of proportionality, and in certain senses, they also set the parameters of the court’s competence. They allow for a uniform, sophisticated examination of the question of whether the condition of proportionality has been met. The Court will, therefore, refrain from applying the proportionality criteria in a mechanical or literal manner when it wishes to declare the law invalid.

The criteria of proportionality come together to examine the relationship between the cost of the harm to the protected right and the expected utility embodied in the proper purpose of the law – prevention of a security risk, or if you will, in the logical formulation coined by Learned Hand: an examination of the relationship between the cost of the legislation (C) and the probability (P) of injury (L) without it. In the present case, even if the probability of damage is low, its magnitude – both physical and spiritual harm – is almost insurmountable.

19.  In the present case, the first two sub-criteria of the fourth condition were met with respect to the condition of proportionality. First, there is a rational connection between the purpose of the Law and the means it selected. The prohibition on the entry of foreign spouses to Israel prevents the risk that they present. The fact that it was allegedly possible to realize the purpose of the Law by using other means that were not adopted does not necessarily indicate that the means that was selected is not rational.

With respect to the second sub-criterion, too, it would seem to be generally agreed that the individual examination causes less harm. However, it is also clear that the individual examination of those who seek to settle in Israel does not realize the purpose of the Law to the same extent as a blanket prohibition on their entry. “In light of the central value of human life that the Law seeks to protect, it is clear that a sweeping prohibition will always be more effective – from the point of view of realization of the purpose of reducing the security risk as much as possible – than the individual examination (President Barak in the first petition).

Still to be decided, therefore, is the question concerning the third sub-criterion of the condition of proportionality – that of relativity, i.e., the question of sensu stricto proportionality: is the relationship between the benefit derived from achieving the proper purpose of the Law and the harm caused by it proportional? This examination should be carried out against the background of the accepted distinction between interest and right.

Interest as opposed to Right

20.  The criterion of balance between the means adopted and the purpose underlying the law is derived from the question of the definition of the value for the sake of which the constitutional right is violated: is it a private right or a public right? The case law, even that which preceded the Basic Law, created a distinction between the criterion of vertical balance (between a right and a public interest) and the criterion of horizontal balance (between rights of equal weight). However this distinction sometimes presents a difficulty, stemming from the artificiality that often lies in the definition of the public interest as distinct from the right of the individual.  [The] public, which has an interest, is comprised of individuals.  And when the public interest is dissected into its components, aggregate individual rights are exposed. Thus, for example, when we are dealing with the security of the public – a public interest in our language – we are talking about nothing other than the right to life and to bodily integrity of each member of the public. This categorization is likely, however, in this case, to have implications for the balance on which the requirement of proportionality is based.

21.  The value of public security normally assumes an abstract form; the tendency is to view it as a non-specific public interest. Often, the nature of the anticipated harm to public security is not tangible. A person’s right to life, on the other hand, is a concrete, tangible right. It is almost an ultimate right; it is the right of people to life – and every one of these people is a world in himself. It is designed to protect people as individuals. As we have said, the distinction between  the two – the interest and the right – is sometimes difficult, as we see from the present case. Apparently, we are dealing with a value in the category of interest – public interest – but in this case, the image of the public become sharper and the danger becomes focused. We are not looking at an abstract public, but at the faces of those who are liable to be hurt in the next terror attack. We can envision the horror of the harm. This is not the abstract concern for public welfare that we have encountered in previous cases. Public security here means the actual right to life, and this is what the Law seeks to protect. The attack that the Law seeks to prevent is directed at certain people, individuals, Moslems, Jews, Christians and Buddhists, who live with us. These people – each and every one of them – have a vested right to life. They have not appeared physically before us today because no one knows what the future holds for him. But their right stands before us here and now.

The Overall Balance

22.  In the framework of the previous petition, there was no dispute concerning the benefit of the disputed legislation, and it was agreed by the majority of my colleagues that “detailed examination of those who belong to those population groups that have a proven potential for posing risks to security and to life, is indeed likely to reduce the harm to the ability to establish family life in Israel, but as opposed to this it will not ensure in an appropriate manner the security of the public.” It has been proven in the past that terrorist organizations will recruit a spouse who is an inhabitant of the Area to their ranks only after that spouse has acquired a permit allowing him/her to enter Israel and to move about freely. In the task of balancing between reducing the carnage and ensuring life on the one hand, and the harm caused to some Israeli citizens who wish to live with foreign spouses in Israel – the benefit [of the Law] exceeds the damage.

The limitation imposed in the Temporary Order does not apply, ab initio, to marriage to Palestinians who live in states which are no longer enemy states – Egypt and Jordan. It applies to those who live in the Area, from which enemy action emerges, or nationals of states that advocate incessantly for the destruction of Israel. In the meantime, additional concessions have been introduced into the Law for those who seek to immigrate to Israel for the purpose of marriage. On our recommendation, a provision was also added to the Law to allow for approving an entry permit in specific cases in which weighty humanitarian reasons justify so doing. The benefit therefore prevails, in the overall balance, over the damage in the legislation. Damage of another type is not that which is found in the existing legislation, but which lies in the lack of a responsible, serious and complete regulation of the matter of immigration to Israel. In the absence of an arrangement, the Temporary Order was returned to us for resolution. In an overall and responsible balance, we cannot void it and leave, in its place, a dangerous legislative vacuum which no-one knows when it will be filled.

My opinion, therefore, is that the petitions must be denied.

 

 

Decided as per the majority opinions of Deputy President E. Rivlin and Justices A. Grunis, M. Naor, E. Rubinstein, H. Melcer and N. Hendel; as against the dissenting opinions of President D. Beinisch and Justices: E.E. Levy, E. Arbel, S. Joubran and E. Hayut, to cancel the order nisi issued by the Court and to deny the petitions, with no order for costs.

 

16 Tevet 5772

January 11, 2012

 

 

                  

 

 

                                                                                                                                    HCJ 257/89

                                                                                                                                    HCJ 2410/90

 

 

1.   Anat Hoffman

2.   Dr. Bonna Haberman

3.   Dr. Judith Green

4.   Rendel Fine Robinson

 

                v.

 

1.   Director of the Western Wall

2.   Ministry of Religious Affairs

3.   Chief Rabbinate of Israel

4.   Minister of Religious Affairs

5.   Minister of Justice

6.   Commander of the Old City Police Precinct, Israel Police, Jerusalem

7.   Commander of the Jerusalem District, Israel Police

8.   Israel Police

9.   Sephardic Association of Torah Guardians – Shas Movement

10. Rabbi Simcha Miron

11. Agudat HaChareidim – Degel HaTorah

12. Rabbi Avraham Ravitz   HCJ 257/89

 

 

1.   Susan Alter

2.   Professor Susan Aranoff

3.   Professor Phyllis Chesler

4.   Rivka Haut

5.   Professor Norma Baumel Joseph

6.   Professor Shulamit Magnus

7.   International Committee for Women of the Wall, Inc.

 

                v.

 

1.   Minister for Religious Affairs

2.   Director of the Western Wall

3.   Commissioner of the Israel Police

5.   Attorney General   HCJ 2410/90

 

H. Kadesh, U. Ganor for the Plaintiffs in HCJ 257/89; N. Arad, Director of the High Court of Justice Department of the State Attorney’s Office for Respondents 1-8 in HCJ 257/89 and the Respondents in HCJ 2410/90; Z. Terlo for Respondents 9-12 in HCJ 257/89; A. Spaer for the Petitioners in HCJ 2410/90.

 

The Supreme Court sitting as High Court of Justice

[January 26, 1994]

Before President M. Shamgar, Deputy President M. Elon, Justice S. Levin

 

Facts:

The two petitions concern the arrangements for prayer in the Western Wall Plaza in Jerusalem.

The Petitioners request to conduct prayer services in the Western Wall Plaza, while carrying Torah scrolls and wearing tallitot [prayer shawls]. The Petitioners in HCJ 257/89 seek to conduct “prayer groups” that read from the Torah. The Petitioners in HCJ 2410/90 represent some one-thousand women who are members of various streams of Judaism, Orthodox, Conservative, Reform and Reconstructionist. They do not ask to conduct their prayers in a “minyan” [prayer quorum], but they do wear talittot and read from a Torah scroll that they bring with them.

The arrival of the Petitioners at the Western Wall Plaza to conduct their prayer services, as stated, met with the fierce opposition of worshippers at the site. The dispute between the worshippers and the Petitioners was accompanied by rioting, the throwing of gravel and dirt at the praying Petitioners, and the use of force and verbal violence.

In the course of hearing the petition in HCJ 257/89, regulation 2 (a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, was amended by the addition of regulation (1a), which prohibits the conducting of any religious service at the Western Wall that is not in conformance with the local custom or that violates the feelings of the worshippers in regard to the place.

The Petitioners argue that the new regulation is void ab initio, or in the alternative, that it should be voided by reason of extraneous considerations or as ultra vires the Minister’s authority. They further argue that their prayer services are not contrary to the “local custom”, and that they strictly observe the rules of halakha [Jewish religious law].

According to the Respondents, the Petitioners’ right of access to the Western Wall is not in dispute. What is refused to them is prayer in their own manner, that is, while arriving as a group, wearing tallitot, carrying Torah scrolls and reading from them. Such prayer has led to severe disturbances in the Western Wall Plaza, breach of public order, and the violation of proper decorum.

For those reasons, the regulation that is the subject of the petitions is valid, and the manner in which the Petitioners conduct their prayers at the Western Wall should be evaluated in accordance with it.

Held:

The High Court of Justice ruled as follows:

A.        (1) The Palestine Order-in-Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences. The Order-in-Council only deprives the Court of jurisdiction in matters of freedom of worship in the holy places

(2) The petitions treat of freedom of access to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers. The Court holds jurisdiction over these matters.

B. (per M. Elon D.P.): In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner of conducting public prayer by women.

C. (per M. Elon D.P.):

(1) According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified.

            (2) Women are required to pray, but they are not obligated to public prayer. Women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times. A person who is exempt from the performance of a time-bound positive commandment cannot be counted for the required, obligatory quorum for constituting a minyan of ten.

            (3) Conducting prayers that are entirely constituted and led by women, in the manner customary in a minyan of men, is contrary to halakha.

            (4) Women are exempt from wearing tzitzit or a tallit, as these are time-bound positive commandments inasmuch as the obligation is limited to a defined time period.  However, women are permitted to perform these mitzvoth.

            (5) The requirement that a commandment be performed for the purpose of observing it, and not motivated by a lack of consideration for the halakhic rule due to “extraneous considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world with regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto.

D. (per M. Elon D.P.):

(1) Custom is one of the established, creative sources of Jewish law.

            (2) Custom can be general, and it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, and in accordance with the existence of legitimate factors of the place and the time that justify such change.

            (3) Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arise, assuming that there is no halakhic prohibition that prevents it.

            (4) A custom that deviates from a prior custom that forbids the introduction of a new custom that is not justified by legitimate social and ideological changes in the halakhic world, may not be followed.

            (5) The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact finds expression in regard to the custom of “prayer groups”, which is a central issue in these petitions.

E. (per M. Elon D.P.):

(1) At the prayer area beside the Western Wall, which must be treated like a synagogue and even more, there was never any custom of women’s prayer.

            (2) Granting the Petitioners’ petition would involve a clear change in the local custom of the synagogue as observed for generations upon generations.

            (3) An important principle of halakha is that custom should not be changed “due to the quarrels” [that would ensue]. This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza.

            (4) The subject of these petitions – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values or in regard to the implementation of its values.

            (5) It is conceivable that the substantial change in the status and role of women in this century will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue.

E. (per M. Elon D.P.):

(1) Just as the Temple Mount and the Temple that stood upon it were symbols of the Jewish religious world and of the Jewish nation’s political sovereignty, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.

            (2) (per M. Shamgar P.): In the eyes of the religious halakha, the Western Wall is a mikdash m’at [a little sanctuary]. From a nationalist perspective, it symbolizes generations of suffering and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality.

            (3) (per S. Levin J.): The Western Wall and its plaza have been a holy site for the Jewish People for generations, as a religious site and a site of prayer, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted there. That the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other cannot be accepted a priori and as a foregone conclusion.

G. (per M. Elon D.P.):

(1) An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions.

            (2) Such an approach is inappropriate to the nature of the Judiciary, which is used to definitively deciding disputes on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch.

            (3) The Executive branch relied upon the long established principle of maintaining the status quo. Preserving the existing situation is the only means for ensuring that peace and quiet, and public decorum -- so necessary for places imbued with holiness – be maintained.

F. (per M. Elon D.P.):

(1) The principle that a person’s freedom of worship is not absolute but must retreat where there is a probable threat of harm to public order, is merely a different expression – one more appropriate to the Holy Places – of the principle of maintaining the status quo.

            (2) In the Holy Places there is – in light of past experience – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit freedom of worship in the Holy Places, and to restrict it due to the need to preserve public order.

            (3) In the circumstances of this case, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers.

            (4) In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another.

I. (per M. Shamgar P.):

(1) The petitions before the Court lead us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court is not necessarily the appropriate solution or the desirable remedy for all illnesses.

            (2) The search for a common denominator for all Jews, whomever they may be, is worthy of respect. The common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers.

            (3) The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner.

J. (per Elon D.P.):

(1) Subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews, promulgated by virtue of the Protection of the Holy Places Law, 5727-1967, expresses the principle of maintaining the status quo. The “local custom” and the status quo are one and the same.

(2) The Minister of Religion did not exceed the authority granted to him by the legislature under the Protection of the Holy Places Law. He acted within the operating framework delineated by the primary legislator in sec. 1 of the Law to protect the Holy Places – including, of course, the Western Wall – from desecration and anything likely to violate the feelings of the members of the different religions with regard to the places holy to them.

            (3) There was more than enough evidence before the Minister of Religion that prayer conducted in the manner practiced by the Petitioners leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall.

            (4) The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. The reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize.

K. (per S. Levin J. (dissenting)):

(1) In regard to the activity in the Western Wall Plaza, the adoption of the broadest common denominator as a standard is not helpful. The common denominator that must be taken into account is the common denominator of all the groups and people who visit the Western Wall and the plaza in good faith, whether for prayer or for other legitimate purposes.

            (2) No absolute prohibition should be placed upon conducting prayer services at the Western Wall simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace do not necessarily justify imposing such a prohibition.

            (3) It is the duty of the relevant authorities to ensure the appropriate conditions for balancing all the relevant interests, in order that all those who seek to assemble at the Wall and its plaza may fully realize their rights without excessively violating the feelings of others.

            (4) Regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Protection of the Holy Places Law, but the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others.

            (5) Under these circumstances, it is possible to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, with the proviso that there conduct does not constitute an intolerable “desecration”, “other violation”, or a “violation of feelings” as appropriate in a democratic society.

L. (per M. Elon D.P.):

(1) The approach according to which conducting worship services at the Western Wall that are opposed by other groups should not be subject to a total ban is an absolutely new approach in the case law of the Supreme Court, and it stands in utter contradiction to a long line of decisions issued by the Court.

(2)  The case law has upheld a prohibition upon Jews praying on the Tempe Mount in order to preserve public order and prevent a proximate threat of disturbances and rioting, Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount.

(3) The Temple Mount on the east of the Wall is no different from the prayer plaza on the west of the Wall, both of which are Holy Places. In view of the fact that according to the decisions of this Court, prohibiting every Jew from praying on the Temple Mount is consistent with the principle of freedom of religion, prohibiting the inclusion of a single element in the prayer service, to which the overwhelming majority of worshippers are vehemently opposed, also does not constitute an infringement of freedom of worship.

M. (per M. Shamgar P.): The issues raised by the petitions should not be decided in the manner that legal disputes are normally decided. We should recommend that the Government consider appointing a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit harm to the feelings of the worshippers. The petitions should be dismissed, subject to that recommendation.

 

 

 

 

 

 

 

 

 

Judgment

 

 

Deputy President M. Elon:

Preface

We have been called upon to address two petitions concerning the arrangements for prayer in the Western Wall Plaza in Jerusalem, Israel’s capital. The facts and content of each of these petitions are substantively different, but in view of their common subject, we have decided to address them jointly.

The petitions are extremely sensitive by their very nature and substance. In terms of their substance, we are concerned with the laws and customs of prayer – subjects that are central to Jewish law and Judaism. As for the location, we are concerned with what has been Judaism’s holiest site since the destruction of the Temple. The special legislation and the rich case law of this Court also inform us of the sensitivity and of the tension attendant to the issue of the Holy Places in this country. This is also evident from the facts set forth in the two petitions before us, and the arguments presented by the Petitioners’ learned counsels.

            We shall, therefore, address each matter in turn, in an orderly fashion.

            We shall proceed as follows: After examining the issue presented by the petitions (paras. 1-3), we will specifically address the facts of each of the petitions that are of importance for our consideration and decision (paras. 4-11), as well as the arguments of the Petitioners and of the Respondents (paras. 12-17). As noted, the questions that we must decide are intertwined with matters of prayer and its rules, which derive from the world of halakha [Jewish religious law], and with which we will begin our examination (para. 18). We will then address contemporary social changes in the status and roles of women (paras. 19-20). We will enquire into the laws of prayer in a minyan [prayer quorum], time-bound commandments, women’s “prayer groups”, the wearing of a tallit [prayer shawl] by a woman, and the reading of the Torah by women (paras. 21-17). We will then proceed to examine the subject of custom in halakha, which is of particular importance for the subject before us – custom in general, in the synagogue in particular, and especially at the Western Wall – change of custom, the avoiding of dispute, and sectarianism (paras. 28-32). In doing so, we will address the extreme nature of the disagreements in regard to the subject before us, the law and values of the halakhic system (paras. 33-36), the rendering of true judgment (para. 37-38), and a summary of the halakhic position in regard to our subject (para. 39). From the world of halakha, we shall proceed to the arena of the Israeli legal system: the Holy places, the Status Quo (paras. 40-43), and the disputes surrounding them (paras. 44, 48-49); the Western Wall during the Mandate period and after its liberation in the Six Day War (paras. 45-46), the prevention of Jewish prayer on the Temple Mount (para. 47), and a summary of the history of the Holy Places (para. 50). From that point, we shall address the principle of freedom of worship, and balancing and restricting it (paras. 51-53), the regulation regarding preserving “local custom” and not offending the sensitivities of the praying public in regard to the Western Wall (para. 54), and the reasonableness, appropriateness and necessity of the regulation (paras. 55-60). We will conclude with a summary (para. 61) and by rendering true judgment in the matter before us (para. 62), and a response to the comments of my learned colleagues (para. 63).

            In HCJ 4185/90 Temple Mount Faithful v. Attorney General, IsrSC 47 (5) 221, the Court considered a petition concerning work being carried out on the Temple Mount, on the eastern side of the Western Wall. In the petitions at bar, we address events on the western side of the Wall. Both cases thus concern events on either side of the Wall. Inasmuch as we addressed the history of the Temple Mount and the Western Wall in detail in HCJ 4185/90, we see no need to repeat what has already been stated there. At times, this judgment refers to that judgment, and at times it does not. The reader can read both to obtain a complete picture.

 

HCJ 257/89

1.         On 14 Adar II 5749 (March 21, 1989), the Petitioners in HCJ 257/89 submitted a petition for an order nisi, stating:

A. Against Respondents 1-3, i.e., the Director of the Western Wall, the Minister of Religious Affairs and the Chief Rabbis of Israel: “Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing prayer shawls during their prayers” [sec. 2.a of the heading of the petition].

B. Against Respondents 6-8, i.e., the Commander of the Old City Police Precinct, the Commander of the Jerusalem District of the Israel Police, and the Israel Police: “Why will they not protect the Petitioners in particular, and women in general in their exercise of the right to freedom of belief, religion, worship and conscience at the Wall” [sec. 2.b of the heading of the petition].

            On 20 Iyar 5749 (May 25, 1989), the requested order nisi was granted with the consent of the State’s representative of the said Respondents.

            In the hearing held on 20 Av 5749 (August 21, 1989), we ordered that the Shas Movement, Rabbi Simcha Miron, the Degel Hatorah Association, and Rabbi Avraham Ravitz be joined to the petition as Respondents 9-12, at their request (MHCJApp 318/89, MHCJApp 319/89).

2.         On 3 Adar 5750 (Feb. 28, 1990) – following the promulgation of the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, which we shall address further on – the Petitioners submitted an amended petition comprising an additional request for an order nisi against the Minister of Religious Affairs and the Minister of Justice (Respondents 3-4):

Why should the Court not declare the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, to be void … or in the alternative, why should it not void them [para. b. of the heading of the amended petition].

            With the consent of the Respondents, an amended order nisi was issued on the basis of the amended petition.

 

HCJ 2410/90

3.         On 10 Sivan 5750 (June 3, 1990), the Petitioners in HCJ 2410/90 submitted:

A petition for the granting of a decree against the Respondents (the Minister of Religious Affairs, the Director of the Western Wall, the Commissioner of the Israel Police, and the Attorney General – M.E.) forbidding them from preventing Petitioners 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading from the Torah, and requiring them to permit the Petitioners to bring a Torah scroll to the Western Wall Plaza, and to ensure that such prayer by the Petitioners be conducted without disturbance or harm [heading of the petition].

            An order nisi was granted on the day that the petition was submitted.

            A joint hearing of the objections to the orders nisi in both petitions – HCJ 257/89 and HCJ 2410/90 – was held on 13 Adar 5751 (Feb 2, 1991), as requested by the Petitioners in HCJ 2410/90.

 

The Facts

HCJ 257/89

4.         The Petitioners are Jewish women, and residents of Jerusalem. Petitioner 1 is a member of the Jerusalem city council. The Petitioners come “to pray at the Wall, together with other Jewish women, at various times, as part of a group called the ‘Rosh Hodesh [new month] Group’” (sec. 1.a of the amended petition). In the course of their prayer, they wear tallitot and read the Torah. Petitioners 1 and 2 “are Torah readers, and on occasion, serve as prayer leaders in their congregations” (sec. 3.a of the amended petition).

            The Petitioners claim that when they went to pray at the Western Wall Plaza, as described, their prayers were disturbed. This began on the Rosh Hodesh beginning of the month of Tevet 5749 (Dec. 9, 1988), when there was “violent conduct … (directed at them – M.E.) by hareidim [“ultra-Orthodox”]” (Appendix A to the amended petition). In regard to the events of Rosh Hodesh Adar I 5749, the third Petitioner, Dr. Judith Green, states:

On Monday morning, 1 Adar I (Feb. 6, 1989) … at 6:30 AM, a group of about 25 women began the Rosh Hodesh prayers at the Western Wall Plaza … we informed the police in advance a day earlier, on Sunday, 30 Shevat (Feb. 5, 1989), of our intention to conduct prayers, and we provided full details ….

We, indeed, saw a police van opposite the Wall, in which there were some 10 police and border patrol officers. We thought that they were there to see what would happen, and to intervene if necessary. We conducted the morning service and recited Hallel without any significant disturbance, but when we began reading the Torah, several hareidi women began to interrupt and curse us. In the end, they ran to the mehitza [separation barrier between the sections for male and female prayer] and called for the hareidi men to assist them. The men broke through the mehitza and began to beat us.  They grabbed prayer books and tried to take our Torah scroll. ‘Reinforcements’ arrived from various yeshivas in the Jewish Quarter (apparently), and at that moment, several men who were concerned for our safety went to the police van to ask for help. The police told them that they should not intervene, and that they should let the police ‘do its job’. When the hareidim began to throw chairs and tables at us, I asked the police to ask for help. They told me not to worry, that they were in control of the situation and had called for assistance. Several other people turned to the police, but none of them left the van. At that point, we began to worry about the safety of the Torah scroll and the safety of the men who were trying to protect us. We therefore left the place as a group, encircling the Torah scroll, while the hareidim continued to curse and hit us. No police or border patrol officer entered the area of this violent event, although it occurred right before their eyes.

When we left, we encountered a police officer who said that he was the area commander. He said that he was unaware of our intention to conduct Rosh Hodesh prayers on that morning. Several police officers who had been in the van were also there, and they continued to berate us for trying to tell them how to do their job [Appendix A to the amended petition].

 

            Following the events described, the Respondents and the Petitioners conducted negotiations that proved unsuccessful. The Petitioners informed Respondent 1 that they “will come to pray at the Wall on the Fast of Esther, without tallitot and without a Torah scroll”, and Respondent 1 assured them that he would see to “their safety and the conducting of their prayers” [sec. 9a of the petition].

            And this – according to the Petitioners – is what occurred on the Fast of Esther 5749:

11.       (a) On March 20, 1989 (the day of the Fast of Esther), the Petitioners gathered with their friends, in a group numbering several dozen women, to pray at the Wall without tallitot or Torah scrolls  ...

(b) When they entered the women’s section at the Wall, there was a large commotion by yeshiva students, and other men and women who were there, who insulted the Petitioners and tried to assault them. Border patrol officers who were at the scene ensured their entry into the women’s section unharmed.

(c) During their prayers, unruly men tried to break through into the women’s section, shouting and cursing, and throwing chairs and stones at the prayer group. Several extremist women who were present in the women’s section, also contributed their insults and fists.

(d) The border police first tried to protect the prayer group and catch the offenders, but quickly, and in accordance with orders from above, they left the Wall and the Plaza, and abandoned the prayer group to the devices of the violent rioters. The Western Wall ushers were at a loss to provide help.

(e) Counsel for the Petitioners, who was present at the event, demanded that the police protect the praying women, but was referred to Respondent 6 (the Commander of the Old City Police Precinct – M.E.).

(f) At the time of the event, Respondent 6 stood on the balcony of the police post near the Wall, and observed what was occurring while doing nothing, as if to say ‘let the young men play before us’ [II Samuel 2:14].

(g) Counsel for the Plaintiffs, who turned to Respondent 6 and requested his quick intervention in light of the rioting, and fearing the spilling of blood at the Wall, was ordered to leave the police post.

(h) The violent rioting at the Wall, which included the throwing of a bottle that shattered in the women’s section, the throwing of chairs and stones, and shouting and whistling, continued without police intervention.

(i) As a result of the throwing of a chair at the heads of the praying women, one of the women was injured. Mrs. Rachel Levin sustained a head injury, and was later treated at Hadassah Hospital …

(j) The person who threw the said chair fled from the women’s section and ran into the Cardo, while Counsel for the Plaintiffs and others gave chase. Border police standing at the entrance to the Cardo, who were asked to arrest the fleeing suspect, stood aside and allowed him to flee and disappear into the depths of the Cardo. They referred the complainants to their commander, Respondent 6.

12.       After about 45 minutes, the police finally intervened, dispersing tear gas canisters in the Western Wall Plaza and moving the men away. As a result of the tear gas canisters, the prayers of the Petitioners and their friends could not continue, and they were forced to leave the women’s section, hurt, injured, and crying, to conclude their prayers far from the Western Wall Plaza.

13.       The Director General of the Ministry of Religion was present throughout the Petitioners’ prayers at the Wall on March 20, 1989, and observed what took place [secs. 11.a – 13a of the amended petition].

 

            The day following the events of the Fast of Esther, the Petitioners submitted the petition at bar, as noted.

5.         The Respondents presented a different version of the events that transpired up to the date of the submission of the petition. This is how the matters are described by Respondent 1, Rabbi Getz, the rabbi in charge of the Western Wall and the other holy sites surrounding the Temple Mount, in his letter of 22 Adar 5750 (March 19, 1990) to the Director of the High Court of Justice Department of the State Attorney’s Office:

For over twenty years, since the day I was appointed to my position as Rabbi of the Wall, the Western Wall Plaza has been a quiet, calm island in the raging sea of our lives in Israel.

Every year, millions of Jews come from Israel and the Diaspora to visit the Wall to pour out their hearts beside the remnant of our Temple, and each can commune with his Maker in tranquility and safety.

All are equal before the Creator, poor and rich, scholar and unschooled, knowledgeable and ignorant, and recite their prayers according to the Sephardic, Ashkenazic, or Oriental rite, or a revised prayer book, in Hebrew, English, French, or any other language. And no one says a word when, with no comparison implied, Moslems, Catholics, Protestants, Presbyterians, and even Japanese Makuya also come, and we have been privileged to see the prophesy of redemption  ‘for My house shall be a house of prayer for all peoples’ [Isaiah 56:7].

The river of Israel’s sorrows laps calmly beside the ancient stones, and our brothers and sisters depart with a sense of relief and ease.

This until that bitter day of 2 Kislev 5749 (Dec. 1, 1988), when, late at night, sitting in my office at the Wall, I received an anonymous notice from a person warning me that feminist women would be coming to the Wall, and they would overturn the mehitza that separates the men and the women. I could hardly believe my ears, and I thought that he was putting me on.

Nevertheless, early the next morning I informed the police commander of this, and I demanded an increased police presence, while expressing my reservations as to the credibility of the notice.

But when, at about 7:00 AM, I saw an army of Israeli and foreign journalists and photographers, I called the Director General of the Ministry for Religious Affairs, Mr. Z. Orlev, who arrived immediately, and I put all of the ushers and all the other staff of the Wall at the ready beside the mehitza.

Indeed, half an hour later, some fifty or sixty women arrived at the site, some wrapped in a tallit or wearing a kippah, and one of them holding a Torah scroll in her arms, and that immediately ignited the emotions of the men and women at prayer.

I did not prevent them from entering the Western Wall Plaza, and I even calmed the enraged spirits, explaining to all interested that from a halakhic legal perspective, there is no prohibition, but it is contrary to custom, and not accepted among Jews, and that calmed the anger of the protesters. I naively thought that this was a one-time phenomenon that would pass. (Incidentally, I firmly deny that I knew, or that it was reported to me, that women, or a woman, would come to the Western Wall wrapped in a tallit, and I did also did not attest to that effect!).

I was also surprised that in declarations made to the various press outlets, the Petitioners emphasized that this would now be a permanent, systematic policy. I therefore asked the honorable Chief Rabbis of Israel for their halakhic opinions, and on 17 Shevat 5749, they ruled to forbid, and this after the phenomenon recurred on Rosh Hodesh of Tevet (Dec. 9, 1988), and this time was met by the angry vocal reactions of the worshippers.

The matter of the arrival of the women wrapped in tallitot and carrying a Torah scroll evolved into a serious breach of public order, and turned the Western Wall Plaza into a shameful battle ground, ending in disrespect and discord.

The Petitioners, for their part, only stoke the flames with daily announcements to the press, which have drawn angry responses for and against.

Nothing transpired on the Rosh Hodesh of Shevat, as it fell on the holy Sabbath.

On the Rosh Hodesh of Adar I (Feb. 6, 1989), the terrible spectacle recurred. The said group of women arrived, accompanied by a crowd of reporters and photographers, and this time there was an escalation because their announcements to the press “mustered” a crowd of opponents, and the women, on their part, added an element of singing, which is expressly contrary to halakha.

I am unaware of any physical injury whatsoever. But it is shocking that the aforementioned expressly claimed to have received my permission to conduct their prayers. Several meetings were held between the Chief Rabbinate of Israel and our office administrators in order to limit the damage and embarrassment. I personally turned to several public personalities and requested that they use their influence with the complainants, and especially Plaintiff 1, to refrain from causing a desecration and dragging the public to sacrilege.

On 11 Adar II, a joint meeting was held in the Director General’s office, at which the Petitioners were present. They demanded that we protect them when they come on the Fast of Esther, and we unequivocally declared that they are disturbing public order, and we, for our part, will strictly enforce it …

We therefore prepared for that day, 23 Adar II 5749 (the day of the Fast of Esther – M.E.) (March 20, 1989), and in coordination with the police and its commanders, I reinforced the ranks of female ushers, emphasizing that the police would intervene only if the ushers lost control of the area.

Once again there were announcements to the press, a timely assembly of photographers and reporters, and the women confronted a wall of people who attempted to block their access to the Wall, while the ushers protected them and allowed their access. But the shouts and the attempts at physical harm forced me to request the intervention of the police, who dispersed the disturbances with two tear gas canisters.

And my face is covered in embarrassment and shame by this – for what? What harm would come to them if they were to pray as they wish in their own homes or their own places of prayer that requires all this commotion? [Appendix R/B of the Respondents’ response of April 8, 1990].

 

6.         During the period between the submission of the petition, 14 Adar II 5749 (March 21, 1989), and the first hearing of the petition, 20 Iyar 5749 (May 25, 1989), the commotion in the Western Wall Plaza subsided. And this is how the events are described in the above letter of Rabbi Getz:

Prior to 28 Nisan 5749 (April 6, 1989), in coordination with the office administration, I assembled a staff of women who could control the women worshippers who were attempting to oppose their arrival. I also removed the chairs from the men’s section and from the women’s section. And, indeed, when they arrived at the Plaza, I was given a ‘legal affidavit’ by their attorney that they are coming without a Torah scroll and without tallitot, and that they would not approach the women’s section. And, indeed, other than a single shout, there were no reactions by anyone.

That was also the case on Rosh Hodesh Iyar (May 6, 1989). I explained to the women present that this was not the time for disturbances, and that they should bear in mind that only yesterday the blood of two Jews was spilled in the center of Jerusalem, and that they must behave with restraint.

Nevertheless, when they began singing in the course of their prayers, that had been silent until that point, there were shouts of disapproval by male and female worshippers, and they quickly left the area” [Appendix R/B of the Respondents’ response of April 8].

 

            And this is what we can learn about the events up to the first hearing in the matter of this petition from the letter of 2 Iyar 5749 (May 7, 1989) of Mr. Zevulun Orlev, then Director General of the Ministry of Religion, to the Director of the High Court of Justice Department:

I respectfully present you with a report of the course of events in regard to the prayers of a group of feminist women who have recently been praying at the Western Wall each Rosh Hodesh.

I have personally been following this matter over the months of Shevat, Adar I, Adar II, Nisan, and Iyar. I have also met personally met with Rabbi Getz, the rabbi responsible for the Western Wall, and with representatives of the group concerned.

The matter was first brought to my attention by the media, which reported that the group would pray at the Wall while wrapped in tallitot and reading form the Torah.

The first Rosh Hodesh prayers were preceded by announcements in the media. By analyzing their content, I have no doubt that the source of the reports was the women themselves.

The announcements led to opposing responses in the hareidi press, which heated up the atmosphere, and created expectations of a struggle.

Even when the women arrived at the Wall without tallitot and Torah scrolls, there were fierce reactions by the hareidim, inasmuch as they believed the reports in the media, and expected that the women would do what was reported.

This was exacerbated by the conspicuous presence of politicians walking at the head of the group, and the presence of many television crews, photographers and reporters accompanying the group of women, which entered the Plaza as a united group, in organized rows and columns as if in a clear protest march.

Our office invested substantial effort to make it clear to the women, on the one hand, that they would not be permitted to enter if they prayed with tallitot and read from the Torah, and to the hareidim, on the other hand, that if the women promise not to deviate from the local custom, they will not break their promise.

And, indeed, on Rosh Hodesh Nisan, the effort produced results, and other than the loud protests of a small number of men and women against the women, there was no significant disturbance. Those protests were the result of the organized, demonstrative entrance, and the accompaniment of the media, who were not invited by us or by the other side …

Prior to Rosh Hodesh Iyar, there were no reports of the matter in the media. The group of women arrived without the conspicuous presence of politicians, and presumably, without the accompaniment of television crews, photographers and reporters. I am glad to report that the group entered undisturbed (they did not enter in formation, but as a normal group), prayed for about half an hour, and quietly left the Plaza. In the course of prayer, after the group began to pray with organized singing aloud – contrary to the decision of the rabbi in charge of the Wall – two hareidi women shouted that the singing bothered them, and were silenced by the Wall ushers.

This progression of events proves and leads to the following conclusions:

1. When the event assumes the character of a demonstration by the women, it is also met by reactions from the other side, and vice versa.
2. When the event is conducted within the framework of the directives of the rabbi of the Wall, there are no harsh responses or disturbances, and vice versa.

From the my discussions with the commander of the Old City police, Chief Superintendent Yair Must, who accompanies me at every event, I know that he agrees with the event analysis and its conclusions [Appendix R/1 to the response submitted by the Respondents in MHCJApp 312/89 on Aug. 15, 1989].

 

7.         As noted, an order nisi was issued on the day of the hearing, with the State’s consent. The Court also recorded the State’s notice that “the competent authorities in the area of the Western Wall Plaza will see to … ensuring the well-being and safety of the Petitioners, and that their prayer services at the Western Wall Plaza will not be disturbed,” with the proviso that the Petitioners will continue to conduct their services at the Wall “in accordance with the prevailing prayer customs at that place, that is – that they will pray in the women’s section, without tallitot and Torah scrolls” [sec. 2 and 3 of the State’s notice of May 24, 1989].

            Unfortunately, this interim agreement did not bring about an end to the confrontations at the Western Wall.

8.         On 6 Av 5749 (Aug. 7, 1989), the Petitioners requested “to issue an interim order instructing the Respondents to take all the necessary steps to ensure the uninterrupted conduct of the prayer service of the Petitioners’ and their friends without physical or verbal violence” (MHCJApp 312/89). In this request, the Petitioners described the events that they claim occurred after the interim arrangement described above. The events of Rosh Hodesh Sivan 5749 (June 4, 1989) are described as follows in the letter of the Petitioners’ attorney of June 5, 1989, to the Attorney General and the Director of the High Court of Justice Department:

A.  On Rosh Hodesh Sivan, June 4, 1989, the Petitioners, together with their friends, tried to pray in the women’s section of the Wall. They arrived at the Wall without tallitot and without a Torah scroll, and prayed in the women’s section. The following events occurred at the place:

1. A group of women made noise and deafening shouts and insults that interfered with the prayers.
2. A group of men, on the other side of the mehitza, shouted and interfered with the prayers.
3. A few women tried to push the worshippers out of the area while they were trying to pray.
4. The prayer book of Mrs. Anat Hoffman was grabbed, folded and spat upon, and the prayer book of another women was grabbed and thrown to the ground.
5. Another women was hit by a stone that was thrown at her.

2. Cognizant of the State’s notice, submitted in writing to the Supreme Court sitting a High Court of Justice as an assurance of the State in file 257/89, the women approached the ushers and the police.
3. Both of the above stood by, indifferent, and refrained from “ensuring the well-being and safety of the Petitioners, and that their prayer services at the Western Wall Plaza will not be disturbed” (quote from the State’s said notice).
4. If that were not enough, the women were shocked when Mr. Shmuel Markovich, the police officer in charge, approached them and demanded, in Rabbi Getz’s name, that the women only pray silently, and if not, then the police would take action against them.
5. As was their custom, the women departed for the “Hurva” synagogue, where the following events occurred:

1. The site was “occupied” by a group of hareidi men.
2. When the women tried to pray at a lower place, the men poured water on them, and the hareidim tried to force their way in among the praying women. In doing so, they injured Miriam Keltz and Helen Louis, who fell, were hurt, and required medical attention.
3. The police made no serious effort to allow the women to pray.
4. The women who submitted complaints were sent from pillar to post between the Kishle [the Old City police precinct], the Russian Compound, the Ministry of Tourism, etc. And complaints were accepted from the two women who were injured only after they were subjected to a thorough runaround.

 

Another description of the events on Rosh Hodesh Sivan is given by the Petitioners in their letter of 26 Sivan 5749 (June 29, 1989) to the Minister of Religion:

 

1. …Despite the State’s promise, on Rosh Hodesh Sivan (June 4, 1989) we found that the violence against us continued, and that your office did not succeed in protecting our well-being in an effective manner, as promised in court.

 

On Rosh Hodesh Sivan, the ushers did not succeed in protecting us, and Rabbi Getz, who was present at the scene, did not call the Israel Police for help. The Wall ushers claimed that they were unwilling to touch a woman even if she was riotous, and hitting and cursing other worshippers. In order to resolve this problem, is was suggested that female ushers would be sent for, and we were grateful for this initiative on your part.

 

2. … Since December 1988, on Rosh Hodesh, holidays and Shabbat eves, we follow the same customary practice, arriving at the Western Wall Plaza unobtrusively, singly or in pairs. We gather into a group in the women’s section, without a Torah or tallitot, and pray together.

On Rosh Hodesh Sivan, we did not deviate from our customary practice, despite what is stated in the written report presented to you by Rabbi Getz (Appendix D of the Petitioners’ request in MHCJApp 312/89).

On Rosh Hodesh Tammuz 5749 (Aug. 2, 1989), the violence increased, as attested by Petitioner 1, Mrs. Anat Hoffman, and Petitioner 2, Dr. Bonna Haberman, in their affidavit of Aug. 6, 1989:

3. …

(c)        For our prayers on 1 Tammuz and 1 Av, the Ministry of Religion provided a force of female ushers who were intended to protect us from our violent attackers, and permit us to pray undisturbed. But instead of that, the ushers joined those who were trying to silence our prayers. When we tried to continue our prayers as usual, and even though we were without tallitot and without a Torah scroll, we and our friends were forcefully dragged out of the women’s section before we could finish our prayers, while women who call themselves “hareidi” exploited the opportunity to pelt us with pebbles and throw mud and dirt at us.

4.         Not only were we forcefully dragged and expelled from the women’s section in a humiliating and degrading manner for all to see, but the Director of the Western Wall, Rabbi Getz, stated to our attorney Advocate Herzl Kadesh – as he reported us – that in the future, we will be entirely barred from entering the women’s section. A similar report appeared in the media as a statement made on behalf of the Ministry of Religion.

5.         Although those of us who pray at the Wall every Friday (in a group of 10-25 worshippers) have encountered verbal violence, to date the prayers have not been frustrated as occurred on the occasions of the Rosh Hodesh prayers.

            …

6. (a)  The authorities pretend to explain their conduct by an artificial distinction that they make between “prayer” and “singing”, and by defining our prayer as singing. In that manner, they seek to evade their responsibility and obligation under the law and in accordance with their commitment to the High Court of Justice.

(b) We pray only from prayer books, and in accordance with the standard Ashkenazic rite. We pray in a group, with a prayer leader. The service includes, among other things, pesukei d’zimra [preliminary blessings and psalms], which include the “Song of the Sea”, as well as prayers like “tzur yisrael” and “aleinu”. On Rosh Hodesh, the service also includes hallel. These prayers are recited aloud [affidavit of the Petitioners submitted in support of their request in MHCJApp 32/89].

 

The Petitioners also appended pictures to the said affidavit, which depict the events of Rosh Hodesh Av. The pictures show a group of women sitting on the Western Wall Plaza while female ushers try to lift one of the women; the women of this group lying of the Western Wall Plaza and female ushers trying to lift one of them; a women being removed from the Plaza by a female usher; a “hareidi” woman using her bag to fight with one of the women sitting on the Western Wall Plaza.

9.         The Respondents explained what occurred on Rosh Hodesh Sivan, Tammuz and Av as the result of the Petitioners breaching the interim agreement reached in the hearing of 20 Iyar 5749 (May 25, 1989):

                        7.         (a) …

(b) When the petition for an interim order was heard by the honorable Court, the parties agreed that until the end of the legal proceedings, the Petitioners would conduct themselves in accordance with the local custom. And because the petition focused upon a specific issue, the notice to the Court emphasized the reference to that issue, i.e., prayer by women while reading the Torah and wearing tallitot.

(c) It would appear that the Petitioners inferred from this that they had been granted permission to breach the local custom in regard to everything not included in their petition, and from that point onward, when they came to pray on Rosh Hodesh, they began to sing.

In doing so, the Petitioners knowingly deviated from the local custom, while claiming to act in accordance with the customs of their congregations [the State’s response of Aug. 15, 1989 in MHCJApp 312/89].

 

            The Respondents also provided a different description of the events of Rosh Hodesh Sivan, Tammuz and Av. Rabbi Getz addresses what occurred on Rosh Hodesh Sivan 5759 (June 4, 1989), in his aforementioned letter to the Director of the High Court of Justice Department:

Rosh Hodesh Sivan 5749 (June 4, 1989) saw a recurrence of the matter of provocative singing and the opposition of the worshippers, and somehow I got the situation under control [Appendix R/B of the Respondents’ response of April 8, 1990).

            The events of Rosh Hodesh Tammuz 5749 (July 4, 1989) are described by Rabbi Getz in his letter to the Director General of the Ministry of Religion of 1 Tammuz 1989 (July 4, 1989), which was the day of the event:

This morning, the first day of Rosh Hodesh Tammuz, a group of the Reform women, headed by Mrs. A. Hoffman, arrived. It was a relatively smaller group than we expected, and comprised some 40-50 women.

Before that, I gave the male and female ushers that we mustered for the emergency situation specific instructions … I also fully coordinated with the police commander Mr. Y. Must, and I also pressed upon the male and female worshippers not to intervene in any way, and to leave the matter exclusively to me. When the said group of women arrived on the scene at about 7:00 AM, each was given a copy of my request, in Hebrew on one side, and in English on the reverse, in which the worshippers were asked not to deviate from “the tradition of generations of our people in any way’ [Appendix R/2(a) of MHCJApp 312/89 – M.E.].

They approached the wall undisturbed, and began to pray. But now and again they began to sing, and the ushers politely asked them to be quiet, and here and there, a few women voiced their objection. But when they began singing very loudly, and were unwilling to stop, I instructed the ushers to remove them – without especial force – from the Plaza. When the said worshippers saw that, they calmed down, finished their prayers quietly, and went up the steps to the Jewish Quarter to read the Torah, etc. I should point out that Mrs. A. Hoffman constantly ran from one woman to another, apparently trying to incite them, but without great success.

In summary – and the police force commander agrees – there was no need to resort to force, and it would appear that this will be the proper approach until the legal issue is decided. And so, thank God, we have managed to maintain order without causing any physical or emotional injury [Appendix R/2 to the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15. 1989].

            It would also be appropriate to quote the instructions that Rabbi Getz gave to the ushers in preparation for Rosh Hodesh Tammuz:

 

                                    It is your task today:

1. To prevent any disturbance of any woman who comes to pray at the Wall, and to protect her.
2. To prevent any breach of public order by anyone.
3. In accordance with section 4(c) of the Western Wall Regulations (5741), also to physically remove from the Western Wall Plaza any person when you receive such instruction from the undersigned [Rabbi Getz – M.E.] [Appendix R/2 (b) of the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

The serious events that transpired on Rosh Hodesh Av 5749 (Aug. 2, 1989) are described by Rabbi Getz in his letter to the Director of the Ministry of Religion of 1 Av 5749 (Aug. 2, 1989), which was the day of the events:

 

This morning, a group of the Reform women arrived that was larger than usual, comprising some 70-80 women. They were preceded by representatives of Israeli and foreign television, as well as photographers and reporters.

Upon their arrival, they were asked by the ushers to maintain order and respect the local custom. Our male ushers stood beside the mehitza, on the men’s side, in order to prevent any outburst by the worshippers.

The Reform women began their prayer quietly, and did not create any disturbance. But when they broke out in song, there was a general cry for silence, and I sent a few of the female worshippers in the women’s section to speak to them and politely ask them to preserve the holiness of the place.

For a moment, the singing ceased, but then they resumed it loudly. After they were warned to stop, the ushers began to remove them. Then, at a prearranged signal, they all sat down at once on the floor, and amplified their singing in a very provocative manner.

I was then forced to order their physical removal, one at a time, while the ushers blocked the entrance to prevent their return to the site. The picture made me very very uncomfortable, but they left me no choice. I would like to praise the readiness of the police, under the command of Inspector Markovich, although I saw no need to activate them (Must was on vacation).

In summary, I see an escalation in the phenomenon, and I would recommend that we now consider not permitting their entry to the area, so as not to see a recurrence of today’s difficult scene [Appendix R/3 of the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

            And this is what was stated in Rabbi Getz’s letter to the Director of the High Court of Justice Department:

 

… On Rosh Hodesh Av (Aug. 2, 1989), we reached the nadir of disrespect for the holiness of the Western Wall. As befits destruction,[1] I foresaw what might happen, mustered a reinforced staff of ushers, coordinated with the police, and also sent a written note, in Hebrew and in English, in which I greeted the arriving women with a cordial blessing and a request that they not breach the public order. I actually begged them that they act with reserve, and not bring about any provocations.

Indeed, at first they began to pray quietly, but suddenly they began singing loudly, and despite my repeated requests, they completely ignored them and sang even louder.

Of course, on the other hand, the expected reaction followed, and in fear of severe developments and violence, I instructed the ushers to remove them. Then, by a prearranged signal, they all sat down at once on the floor, arm in arm, singing loudly.

Despite the stinging pain that I feel to this very day, I instructed that they be dragged out right in front of the many cameras that, as usual, had been invited in advance [Appendix R/B of the response of April 8, 1990].

 

            A similar picture of the events of Rosh Hodesh Av is presented in Mr. Zevulun Orlev to the Director of the High Court of Justice Department of 2 Av 5749 (Aug. 3, 1989). As stated in the letter:

 

… the women breach the rules for prayer and conduct of the place by intentional, organized  and  flagrant singing.

On Rosh Hodesh Av (Aug. 2, 1989), they went even further, coming in a large, organized group, accompanied by politicians and the media (newspaper, radio and television) that were invited by them.

We see that as a flagrant breach of the decision of the High Court of Justice, which ruled that the prayers be conducted in accordance with the usual customs of the place, and I therefore request that legal steps be taken for breach of the High Court’s decision and contempt of court.

In addition, I respectfully inform you that, in light of the recurring breaches of the local custom by the group, we are considering not permitting them to enter the Plaza as an organized group, but only as individuals [Appendix R/4 of the response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

10.       At the end of the hearing held on 20 Av 5749 (Aug. 21, 1989) in regard to the Petitioners’ request for an interim order, as described above, and in light of the described events, this Court ruled as follows:

 

In regard to the interim order, the existing situation should continue without any change either way. Any change in the manner of conducting prayer can result, if at all, only following a legal ruling by this Court, following a hearing of the petition on the merits. Therefore, the Petitioners shall be permitted to pray at the site in accordance with the local custom, as dictated by the Rabbi of the Wall. This means, inter alia, that their prayers will be conducted without talittot or Torah scrolls. As for singing aloud at the site, this, too, must be conducted – as long as the matter is not addressed on the merits by this Court – in accordance with the said local custom. The Petitioners’ prayers, in accordance with the local custom, must be permitted by the Respondents, who must ensure appropriate security arrangements for properly carrying it out [decision in MHCJApp 312/89].

            Following that decision, peace returned to the women’s section, and the Petitioners’ prayers – in accordance with the local custom – preceded peacefully. Rabbi Getz refers to this in the aforementioned letter of 22 Adar 5750 (March, 12, 1990) to the Director of the High Court of Justice Department:

 

The lowering of tensions began on 19 Av 5749 (Aug. 20, 1989) (should be: 20 Av 5749 (Aug. 21, 1989) – M.E.), with the issuance of the order by the honorable Supreme Court that they must observe the instructions of the Rabbi of the Wall, and not change the local custom.

With the exception of a certain attempt at disturbing the peace on Rosh Hodesh Elul 5749 (Sept. 1, 1989), there has been absolute calm, and large or small groups of women arrive every Rosh Hodesh, without prior notice to the press, pray quietly at the Wall like all daughters of Israel, and depart, and they are made welcome [Appendix R/B of the response of April 8, 1990].

 

            This is also what can be understood from the letter of 38 Kislev 5750 (Nov. 29, 1989) from Mr. Zvi Hoffman, Director of the Holy Places Department in the Ministry of Religion, to Mr. Zevulun Orlev:

 

This morning, Rosh Hodesh Kislev, a group of the Reform women, numbering about 100 women, arrived at 7:20 AM. The group was relatively larger than usual. Representatives of the media, as well as photographers and reporters, preceded them. Upon their arrival, they were asked by Rabbi Getz’s secretary, Mr. Z. Hecht (as Rabbi Getz was absent due to illness), to maintain order and respect the local customs.

They approached the Wall undisturbed, and began praying without any singing and without raising their voices. They finished their prayers after about 20 minutes, and went up the steps to the Jewish Quarter for the reading of the Torah, etc.

In conclusion, there was no need to make recourse to the police contingent or the ushers that we had requested. This only goes to show that their prayers can be conducted in accordance with the local custom without any problems [Appendix R/C of the response of April 8, 1990].

 

HCJ 2410/90

11.       The facts of this petition – although they raise the same issue – are entirely different from the facts of the petition in HCJ 257/89. Petitioners 1-6 are Jewish women who are residents of the United States. The Petitioners founded Petitioner 7 – the International Committee for Women of the Wall – and they claim to “represent a group of at least 1000 Jewish women who are members of the primary Jewish movements, including the Orthodox, Conservative, Reform, and Reconstructionist” (para. 1 of the petition).

            As for the manner of prayer of the Petitioners and the group that they represent:

13. As for the character of the prayer of this group, because the women are members of different movements, although primarily Orthodox, they decided to adopt the rule of following their common denominator, that is, prayer that is acceptable to all the movements.

14. In light of that decision, this group prays in accordance with Orthodox halakha, and it alone, inasmuch as this does not offend the religious views of any of its members, and therefore they conduct their prayer services in accordance with the accepted halakha of the Orthodox religious Jewish world.

15. In light of that, in their joint prayer as a group, the Petitioners are careful:

            (a) Not to refer to themselves or consider themselves a minyan for any and all purposes.

            (b) Not to recite those prayers that are permitted only in the context of a minyan, such that they do not recite the kaddish, they do not say the “barechu …”, there is no repetition of the shemoneh esreh, etc.

            (c) They do not hold a Torah reading service, and do not bless or “go up” to read from the Torah.

16. In practice, the Petitioners conduct individual prayer, with all its characteristics and restrictions, together, with the addition of two elements that are halakhically permitted:

            (a) They wear a tallit during their prayers;

            (b) They read from a Torah scroll that they bring with them [Petitioners’ summary of pleadings of Feb. 27, 1991].

 

            As for the background of the petition, it states as follows:

4. In their efforts to forge a strong, deep tie with Jerusalem, the Women of the Wall brought a Torah to Jerusalem towards the end of 1989, and left it in Jerusalem, inter alia, so that so that they would be able to read from it in the course of their prayers during their recurring visits.
5. The Women of the Wall requested to pray at the Wall, as aforesaid, on Rosh Hodesh Kislev (Nov. 29, 1989), while wearing tallitot and reading from the Torah that they brought, as stated above.
6. When the Women of the Wall were informed that Respondent no. 2 (Rabbi Getz, the Director of the Western Wall – M.E.)  might try to prevent their praying as aforesaid, as he did in regard to a group of Israeli women whose petition is pending before this honorable Court in file 257/89, Petitioners 1-6 postponed the intended date of prayer to Thursday, Nov. 30, 1989, and on Nov. 26, 1989, they wrote to Respondent no. 2 and to the representative of Respondent no. 3 (the Commissioner of the Israel Police – M.E.) in the Old City, while sending a copy of their request to Respondents no. 1 (the Minister of Religion – M.E.) and no. 4 (the Attorney General – M.E.) … so that the Respondents could take the necessary steps in order to prevent a disturbance of their intended prayers, as aforesaid. The letters were delivered to their recipients no later than Nov. 28, 1989.

…

                        12. At the intended time for their prayers, as aforesaid, the Women of the Wall arrived at the Western Wall Plaza, carrying tallitot and the Torah scroll, but the representative of Respondent no. 1 prevented their entry to the Western Wall Plaza, claiming that since they were women, they are not permitted to wear tallitot or read from the Torah, in accordance with a decision of Respondent 2 … Petitioners 1-6 were informed that their entry into the Western Wall Plaza and their prayers there would be prevented by force [paras. 4-6, and 12 of the petition in HCJ 2410/90].

            In addition, the Petitioners emphasize that:

                              Upon the preventing of their entry to the Western Wall Plaza, as aforesaid, the group of Petitioners and those that accompanied them dispersed that day, Nov. 30, 1989, peacefully and quietly, making no attempt to cross the security barrier outside the Western Wall Plaza on the Dung Gate side, and in no case, neither in the past nor following the submission of the petition, did the Petitioners request to conduct prayers at the Wall in accordance with their custom, due to the position of the Respondents, as aforesaid.

                              … and their prayers did not cause any breach of public order, inasmuch as they were never conducted at the Wall, beside it, or in the Plaza facing it [paras. 17, 20 of the Petitioners’ summary pleadings of Feb. 27, 1991].

 

Pleadings

Petitioners’ Pleadings

12.       The Protection of Holy Places Law, 5727-1967, states as follows:

                              Protection of Holy Places

1. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

Offences

2. (a) Whosoever desecrates or otherwise violates a Holy Place shall be liable to imprisonment for a term of seven years.

(b) Whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment for a term of five years.

                              Saving of Laws                                                     

3. This Law shall add to, and not derogate from, any other law.

Implementation and regulations

4. The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation.

 

            When the original petition in HCJ 257/89 was submitted, the Regulations for Protection of Holy Places to the Jews, 5741-1981, promulgated under sec. 4 of the Protection of Holy Places Law, stated, inter alia:

 

                                    Definitions

1. In these Regulations:

Holy Places – The Western Wall and its Plaza, including any structure and any aboveground or underground passage the entrance of which is from the Plaza; …

The Director – The person appointed by the Minister of Religion, on the proposal of the Chief Rabbis of Israel, to be the Director in Chief, or the Director of a specific Holy Place.

                                    Conduct

2. (a)  In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:

1. Desecration of the Sabbath and Jewish holidays;
2. Improper dress;
3. Placing kiosks or stands;
4. Providing religious services of any kind without the permission of the Director;
5. Distributing publications without the permission of the Director;
6. Making speeches, announcements aloud, carrying placards or signs, without the permission of the Director and in accordance with his conditions;
7. Panhandling or accepting contributions, with the exception of placing charity boxes in places designated  by the Director for purposes that he has established;
8. Slaughtering;
9. Eating, drinking or holding a celebration outside of places designated for that purpose by the Director;
10. Smoking;
11. Sleeping outside of places designated for that purpose by the Director;
12. Entrance of animals.

                                                   (b) …

                                    Restrictions upon Photography in the Western Wall Plaza

3. …

Powers of the Director

4. (a)                          The Director may, with the consent of the Chief Rabbis of Israel or the Minister of Religion, give instructions to ensure the efficient enforcement of the prohibitions set forth in Regulation 2.

(b)     Any person present in the area of the Holy Places must obey the lawful instructions of the Director.

(c)                          The Director may remove from a Holy Place any person who interferes with the carrying out of his function or who transgresses any of the provisions of Regulations 2 or 3.

 

                                    Punishment

5. Anyone who transgresses any of the provisions of Regulations 2 or 3 is liable to imprisonment for a term of six months or a fine in the amount of 500 shekels.

 

            Inasmuch as that was the wording of the Regulations at the time of the submission of the original petition in HCJ 257/89, the Petitioners’ primary claim in that petition was that:

The Protection Regulations do not prohibit women’s prayer in the women’ section, and do not prohibit women from reading the Torah or wearing tallitot [para. 3.b of the original petition].

 

            They further argued that the Director of the Western Wall and the Chief Rabbis are not authorized “to impose prohibitions or promulgate decrees that are not expressly stated in the Protection Regulations, and if they did so, they exceeded their authority” [paras. 4.5b-5.b of the original petition]. The Petitioners therefore argued that they should not be prevented from praying at the Western Wall while reading the Torah or wearing tallitot, and that the Israel Police must ensure their right to do so.

13.       On 4 Tevet 5750 (Jan. 1, 1990) – prior to the State’s submission of its affidavit in response to the petition – the State informed the Court of the promulgation of the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, which amended Regulation 2, above, as follows:

                                    Amendment

1. In Regulation 2(a) of the Regulations for Protection of Holy Places to the Jews, 5741-1981, following section (1), shall come: (1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

 

            As noted, in light of the amendment of the Regulations, the Petitioners in HCJ 257/89 submitted an amended petition.

14.       In their amended petition, the Petitioners argued extensively against the validity of the said amendment to reg. 2 of the Regulations for Protection of Holy Places to the Jews. The Petitioners argued that the new amendments are void ab initio, or in the alternative, should be voided, inasmuch as they suffer from various flaws: extreme unreasonableness, unlawful discrimination, extraneous considerations, improper purpose, deviation from authority, and infringement of the principles of justice (para. 14 of the amended petition; para. F of the summary pleadings of the Petitioners in HCJ 257/89).

            They further argued that their praying while wrapped in tallitot and reading the Torah does not fall within the ambit of the prohibition established under the new regulations. The reasoning grounding this claim is that prayer in the manner described is not contrary to the “local custom” [para. 6 B (a) of the amended petition; para. 7 of the Petitioners’ summary pleadings].

15.       The Petitioners in HCJ 2410/90 essentially repeated the arguments in HCJ 257/89, while noting the factual differences between the two petitions.

            In their petition, the Petitioners especially emphasized their strict observance of halakha. They further emphasized the fact that they – as opposed to the Petitioners in HCJ 257/89 – had not caused a disturbance of the peace [paras. 18-20 of the Petitioners’ summary pleadings in HCJ 2410/90].

 

The State’s Pleadings

16.       In its response, the State emphasized that the Petitioners’ right of access to the Western Wall and their right to pray there are not disputed. What it forbidden to the Petitioners is praying in their own manner, that is, arriving as a group, wrapped in tallitot, carrying a Torah and reading from it. The reason for this prohibition is that when the Petitioners conducted such prayer, it caused serious disorder in the Western Wall Plaza, disturbance of the peace, and a breach of appropriate decorum [para. 3 of the State’s summary pleadings of Feb. 24, 1991].

            By virtue of the authority vested in him under the Protection of Holy Places Law, the Minister of Religious Affairs promulgated the Regulations for Protection of Holy Places to the Jews, after conferring with the Chief Rabbis of Israel, and with the consent of the Minister of Justice, as required under sec. 4 of the Law. Those Regulations established arrangements intended to realize the purpose of the Law, namely: the avoiding desecration or other harm to the holy places, and avoiding any other offense to the sensitivities of the praying public in regard to the place. These arrangements ensure that public order and appropriate decorum will be preserved in the holy place.

            As part of the said arrangements, reg.2 establishes a list of prohibited actions in the area of the holy places. Among the prohibited acts is a prohibition upon “conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – reg. 2 (a) (1a) [paras. 6-7 of the State’s summary pleadings of Feb. 24, 1991].

            In order to carry out the obligation to preserve public order and decorum in the Holy Places, there is a principle of strict preservation of the status quo in the Holy Places. In the Declaration of Independence, the State of Israel affirmed that it would ensure freedom of religion, and that it would “safeguard the Holy Places of all religions”. That promise was kept, in practice, by strict preservation of public order and decorum in all the Holy Places, and by the preservation of the “status quo” in those places. That policy of the Government of Israel is also expressed in the Protection of Holy Places Law, and in sec. 3 of Basic Law: Jerusalem, Capital of Israel [paras. 1-15 of the State’s summary pleadings of Feb. 24, 1991)].

            It is therefore contended that the regulation that is the subject of the petitions is valid, and that the manner in which the Petitioners conducted their prayers at the Wall should be examined in its light. The State further argues that for the purpose of the application of the regulation’s provisions to the Petitioners, the question that must be asked is whether prayer in the manner performed by the Petitioners has ever been the local custom at the Western Wall. The answer to that question is no, and prayer in the manner performed by the Petitioners at the Western Wall constitutes an offense to the sensitivities of the praying public in regard to the place [paras. 19-22 of the State’s summary pleadings of Feb. 24, 1991].

            The State referred to the opinions provided by the Chief Rabbis in the matter before us, in which they expressed their extreme opposition to the conducting of prayer services in the manner of the Petitioners. According to the State, these opinions were given by virtue of the authority granted to Chief Rabbis as stated in sec. 4 of the Protection of Holy Places Law, which requires consultation with the representatives of the relevant religions. Thus, sec. 4 of the said Law states that the Minister of Religion may promulgate regulations suggested by the representatives of the relevant religions [para. 23 of the State’s summary pleadings of Feb. 24, 1991].

 

The Parties’ Pleadings in regard to the Court’s Jurisdiction

17.       Initially, the State did not raise any objection to the jurisdiction of this Court over the subject of the petition at bar. Respondents 9-12 in HCJ 257/89 – the Shas Movement, Rabbi Miron, the Degel HaTorah Association, and Rabbi Ravitz – claimed that “the subject matter of the petition … is not within the jurisdiction of the honorable Court due to the provisions of sec. 2 of the Palestine Order in Council (Holy Places), 1924” [para. 7(a) of the affidavit of Rabbi Miron of Aug. 17, 1989, and the affidavit of Rabbi Ravitz of Aug. 18, 1989].

            The State explained its reasons for not raising the issue of the jurisdiction of this Court in the summary pleadings submitted on 10 Adar 5751 (Feb. 24, 1991). The petitions address the arrangements established in the Regulations for Protection of Holy Places, by virtue of which the Petitioners were prevented from conducting their prayers at the Wall in their manner. The Petitioners in HCJ 257/89 responded at length and in detail to the claim of lack of jurisdiction of the Court [Chapter B of the Plaintiff’s summary pleadings of Feb. 24, 1991]. We do not see any need to address this at length for the purpose of the matter before us.

            The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), the majority held that while the Order in Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction        in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

 

The Subject before the Court in Halakha

18.       The questions that we must decide concerns prayer and its rules, which are matters deriving from the world of halakha. I would not presume to rule on any of the matters before us from the perspective of halakha. I am no halakhic decisor, nor a halakhic decisor’s son[2]. I probe the words of scholars and decisors, and contemplate the wisdom and thoughts of sages and philosophers, and express my thoughts on the matter. This enquiry is appropriate, inasmuch as the parties presented lengthy arguments on this matter from the halakhic perspective, in particular, by submitting the opinions of Prof. Pinhas Schiffman (in HCJ 257/89), Prof. Shmuel Shilo (in HCJ 2410/90), and Prof. Eliav Shochetman, who first submitted an opinion in HCJ 257/89, and later submitted an opinion in HCJ 2410/90. Out of respect for them,[3] I will also say a few words on the subject. This examination is necessary in order to understand the subject before the Court, which relates to intrinsically halakhic questions that are grounded in the world of halakha and its values. It is only proper, therefore, that we briefly address them as they are expressed in halakha, before delving into the legal aspects of the issues raised by the petitions.

           

Social Changes in the Status and Role of Women

19.       The subject at issue –prayer by women, their obligation and exemption, and additional, related subjects – have long been a subject of halakhic and scholarly literature. The discussion of these issues has intensified in this generation, against the background of social changes in the status of women that I will discuss below, and many books and articles have been written on the subject, some of which I will cite.

            The problem of the status of women in halakha in the face of changes in women’s social involvement, status and education, and the roles that women fulfil in daily life – including religiously observant women – is a central subject in the investigations of contemporary halakhic decisors and philosophers. We, too, have addressed this question at length in the decisions of this Court (see: ST 1/81 Nagar v. Nagar, IsrSC 38 (1) 365 (hereinafter: the Nagar case); HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42 (2) 221 [http://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affairs] (hereinafter: the Shakdiel case)), in regard to the study of Torah by women in the context of our decisions concerning the equal obligation of a father and a mother to educate and raise their child (the Nagar case; and see the Shakdiel case, at p. 265), and in regard to the right to vote for and be elected to public office (the Shakdiel case). Following a detailed examination of those two issues, we concluded (ibid., at p. 268):

 

With respect to the Torah study by a woman, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation that obligates women to study Torah, i.e., that “in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs”,  as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (TB Bava Kama, 42a).

 

            And we went on to say (ibid., at p. 269):

It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. TB Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behavior [halikhot], since legal rules and ways of behavior come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited - in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:  “You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly with your God. (Micah 6:8; and see TB Makkot 24a).

 

            In this connection, we quoted (ibid.) Rabbi A. Lichtenstein, the head of the Har Etzion Yeshiva in Alon Shevut in Gush Etzion (in his article published in The Woman and Her Education (Emunah, 5740) 158):

 

 The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit [allowing interest-bearing loans – trans.], and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (TB Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past – that is not realistic. It is not possible to revive the simplistic naiveté of women that was then. Hence it is needed to replace the Ze'ena Ure'ena,[4] with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            We, therefore, further stated (the Shakdiel case, pp. 269-270):

Such is the way of the halakha from ancient times. On this score we wrote elsewhere (M. Elon, Jewish Law – History, Sources, Principles, 3^rd ed., (Magnes, 1978), p. xv – M.E.): “... The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation – is clearly evident to anyone who studies the history of Jewish law in its different periods...” (and see, ibid., at p 45 – M.E.).

 To the above end, the system of Jewish law has drawn upon its own legal sources – those very sources recognized by the halakha as means to create and develop the rules of the system (ibid., at pp. xv and 45 – M.E.).

 

            Indeed, that is the way and the world of halakha, and every problem or issue that confronts it as the result of a changing societal and social reality requires in-depth examination and consideration of the halakhic rules, principles and values in order to arrive at an appropriate, correct solution by means of the creative sources of halakha – both in terms of the resolution of the problem and in terms of the spiritual world and values of the halakhic system. The more fundamental and comprehensive the issue, the greater the need for in-depth, responsible examination. And so it is, to no small extent, in regard to the issues presented by the petitions at bar, which we will now address.

20.       In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner for conducting public prayer by women.  The latter question is particularly emphasized by the Petitioners in HCJ 2410/90, who take care that their prayer groups are “in accordance with the accepted halakha of the Orthodox religious Jewish world”, “not to refer to themselves or consider themselves a minyan for any and all purposes”, “not to recite those prayers that are permitted only in the context of a minyan”, etc. (see para. 11, above).

            As we noted at the outset, many instructive things have been said and decided in regard to these and other related issues in the Talmudic literature, commentaries, and responsa literature, and in the writings of scholars. These issues have been increasingly discussed of late, due to the changes in the social reality and the status and role of women in that reality, which we referred to at beginning our examination of the subject before us in the world of halakha. This is not the place for a lengthy examination of these matters, and we do not pretend – nor do we see a need – to conduct an exhaustive examination of them. We will only briefly address some of the fundamental matters regarding the issues before us.

            It is worth noting the interesting phenomenon that a significant part of the halakhic literature on these issues is to be found in books and articles published in English (see: Rabbi Avraham Weiss, Women at Prayer: A Halakhic Analysis of Women's Prayer Groups; Rabbi Moshe Meiselman, Jewish Women in Jewish Law; Rabbi Prof. Eliezer Berkovits, Jewish Women in Time and Torah; Rabbi J. David Bleich, “Survey of Recent Halakhic Periodical Literature,” 14 (2) Tradition 113 (1973); Rabbi Saul Berman, “The Status of Women in Halakhic Judaism,” 14 (2) Tradition 5 (1973)  ; Rabbi Aryeh Frimer, “Women and Minyan,” 23 (4) Tradition 54 (1988); etc., to which we will make reference below).

            This phenomenon, which is uncommon in regard to the overwhelming majority of other halakhic subjects, derives from the fact that interest – from its inception and to this day – in the application of these issues has largely been among the various Jewish congregations in the United States. This, too, will be of importance in deciding the petitions before us from a legal perspective.

 

Prayer in a “Minyan”

21.       Women are required to pray, but they are not obligated to public prayer (TB Berakhot 20a-b; Maimonides, Mishneh Torah, Laws concerning Prayer 1 (b); Shulhan Arukh, OH 106, 1-2, Magen Avraham, ss. b, ad loc.; Responsa Shaagat Aryeh 14. There is a difference of opinion as to whether women are obligated to pray three times a day – arvit, shaharit, and minha – or only for some of them. In the opinion of one of the accepted contemporary decisors, Israel Meir of Radun, in his book Mishna Berura, women are required to pray shaharit and minha (see: Mishna Berura on Shulhan Arukh OH 106 b). We will address the reason why women are exempt from public prayer below, in our discussion of time-bound positive commandments.

            According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified, such as kaddish, barekhu, kedusha, and the repetition of the amida – are only performed in a minyan (TB Megilla 23b). Women are not counted for constituting a minyan of ten, as we shall explain below. A minyan of ten men is also required for additional things, such as the priestly blessing, a “zimun” of ten for the grace after meals, but there is disagreement among halakhic decisors as to the reason for this (see: Maimonides, Mishne Torah, Laws concerning Prayer 8, d-f; Shulhan Arukh, OH 55 a; and see in detail, Encyclopedia Talmudit, vol. 6, s.v. “Davar SheBikedusha”, pp. 714ff.).

            Women are not counted for the constitution of the required minyan, except for certain matters and for specific reasons, in the opinions of various halakhic decisors among the Rishonim and Aharonim.[5] By way of example, in regard to the reading of the Megilla and the recitation of the blessing “harav et rivenu” that follows the reading, see: Nachmanides, Milhamot HaShem, on Rif [Isaac ben Jacob Alfasi], Megilla 5:a; Meiri, Berakhot 47b; Ran [Rabbi Nissim ben Reuven Gerondi] on Rif, Megilla 19:b s.v. “Hakol Kesherin”, and Megilla 23a, s.v. “Hakol Olin Lamina Shi’va”; in regard to the public sanctification of God, see: Rabbi Reuven Margulies, Margoliot HaYam, Sanhedrin II, 6 and 27 and sources cited there; on the HaGomel blessing, see: Mishneh Berurah OH 29:3 and sources cited there; and see Encyclopedia Talmudit, v. 4, s.v. “Berakhot hahoda’ah”, pp. 318-319, etc.; and this is not the place to elaborate (see Rabbi A. Frimer’s detailed article “Women and Minyan,” 23 (4) Tradition 54 (1988), pp.54ff. and Rabbi Weiss’ book, Women at Prayer: A Halakhic Analysis of Women's Prayer Groups, pp. 13-56).

 

Time-Bound Positive Commandments

22.       In regard to the questions raised by the issue before the Court and the reasons behind them, we should address the halakhic principle that women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times (day not night, at specific times of day, on specific days or holidays, etc.: Mishna Kiddushin 1:7; TB Kiddushin 32a; Maimonides, Laws concerning Idolatry, 12:3, Laws concerning Tzitzit, 3:9; Shulhan Arukh OH 17:2. Before examining the reason for this halakhic rule, we should note that there are no few exceptions to this rule, and that women are obligated to perform a significant number of time-bound positive commandments, such as, reciting (and hearing) kiddush on the Sabbath, eating matzah on the first night of Passover, and others (TB Berakhot 20a-b; Kiddushin 34a; Sukkah 28a, etc.; and see Saul Berman, “The Status of Women in Halakhic Judaism,” 14 (2) Tradition 5, 1-13 (1973).

            Various reasons have been adduced for this exemption (see, e.g., Ellenson, Bein HaIsha LeYotzra, vol. I, 2^nd ed. (Jerusalem, 1982), pp. 30 ff. (Hebrew) [English translation: Ellinson, Women & the Creator/Serving the Creator, v. I, 2^nd ed. (Jerusalem, 1986)]; Rabbi Berman, above). The prevailing view is that the exemption is intended to make it easier for a woman to fulfill her role, rather than due to her lesser status relative to men. In the Jewish world, a woman’s central role is to maintain the home and family – “The king's daughter is all glorious within” (Psalms 45:14). Therefore, the Sages ruled that a woman is exempt from performing acts that must be performed at specific times in order not to make it more difficult to fulfil her primary role. This reason appears in halakhic literature as early as the Rishonim (see, for example, Abudarham HaShalem, Daily Prayers, chap.3, Benedictions for Mitzvot (Hebrew).

            We would note what was said by Rabbi Moshe Feinstein, one of the greatest contemporary decisors, in regard to our subject (Responsa Iggerot Moshe, OH Part IV, 49):

For women, in general, are not wealthy, and they are responsible for raising the children, which is the more important task before God and the Torah … women are, by nature, better suited to raising the children, and for this reason, they were relieved of having to study Torah and of the time-bound positive commandments. Therefore, even if the social reality were to change for all women, as it was for wealthy women of all times, and even if it would be possible to entrust the raising [of children] to some other men and women, as in our country – the rules of the Torah, and even of the rabbis, does not change.

 Rabbi Feinstein goes on to state:

We should be aware that this is not because women are of a lower state of holiness than men, as in regard to holiness, they are equal to men in regard to the applicability of the obligation to observe the commandments. For the commandments relate only to the holiness of Israel, and every verse of the Torah that speaks of the holiness of people was also directed to women, whether in regard to the giving of the Torah: “then you shall be my treasured possession … and a holy nation” was said to the House of Jacob, which refers to the women, and “speak to the children of Israel” refers to the men … and we find that every place that the Torah speaks of the matter of the holiness of Israel, it also speaks to the women. Therefore, women recite blessings in the form “who has sanctified us by His commandments”, just like men, even for commandments that the Torah does not require of them. And it is merely a matter of leniency, because God wished to make it easier for women as explained above, and not, God forbid, to denigrate. And as far as the relations between a man and his wife, there is no distinction between a man’s obligation to honor his wife, and a women’s obligation to her husband. And many women were prophets, and all the laws of prophecy apply to them as to men. And they were praised more than men in many regards, both in the Bible and by the Sages. And there is no denigration of their honor in any regard in that they were exempted from Torah study and from time-bound commandments, and there is no reason to complain about that. And it brings honor to the Torah to explain this again and again.

 

            We also find an enlightening explanation in the writings of Rabbi Isaac Arama, author of the Akedat Yitzhak and one of the great scholars and Torah commentators, who lived in the 15^th century, in the generation of the expulsion from Spain (Akedat Yitzhak, Genesis, chap. 9):

By her two names – “isha” [Woman] and “chava” [Eve] – we learn that a woman has two purposes: One is shown by the name “Isha [Woman], for from ish [Man] was she taken”, and like him she can understand and learn matters of the intellect and piety, like the matriarchs, and the righteous women and prophetesses, as we learn from the plain meaning of eshet hayil [a woman of valor] (Proverbs 31).            The second is the matter of childbirth … and the rearing of children, as is shown by the name “chava [Eve], because she was the mother of all the living”.

A woman who cannot give birth is prevented from fulfilling her minor purpose [the second above], and for good or for ill, she remains like a man who does not bear children, of whom it is said [of a barren man and a barren woman]: “I will give them, in My House and within My walls, a monument and a name better than sons or daughters” (Isaiah 56:5), for the main progeny of the righteous is good deeds [Rashi’s commentary to Genesis 6:9, s.v. “eleh toldot noah”]. That is why Jacob was angry with Rachel when she said: “Give me children, or I shall die” (Genesis 30:2), to reproach her and teach her this important matter, which is that she would not be dead as a result of this mutual purpose, by having been denied offspring, just as it would be for him if he would not bear children.

            The primary purpose of a woman, as for her husband, is to “understand and learn matters of the intellect and piety, like the Matriarchs, and the righteous women and prophetesses”. The minor, secondary purpose is that of childbirth and rearing children. This hierarchy is interesting and instructive, and deviates from what was accepted among philosophers of that period [15^th cent.] (also see Rabbi Weiss’ aforementioned book, at p. 115).

            A particularly instructive and unique example was provided by Rabbi Samson Raphael Hirsch, the founder of the Torah im Derech Eretz philosophical school, (in his commentary to the Torah, Leviticus 23:43):

Clearly, the reason for the exemption of women from time-bound commandments does not derive from their lesser importance, so to speak, or because the Torah did not find them appropriate, as it were, for observing those commandments.

It would appear to us that the reason for not obligating them to those commandments is that the Torah does not think that women are in need those commandments and their observance. The Torah assumes that our women have an extraordinary love and holy enthusiasm for their role in serving the Creator, which are greater than those of men. Men, who face trials in their professional lives that threaten their devotion to Torah, need regular encouragement and cautionary reminders in the form of the time-bound commandments. That is not so for women, whose lifestyle comprises fewer of such trials and dangers.

 

            23.       The “exemption” from the obligation to observe time-bound commandments – such as public prayer, blowing the shofar (on Rosh Hashana), shaking the lulav (on Succot) – does not, therefore, deprive a women of permission to observe the commandments, if she so desires, and in the opinion of many decisors, when a women performs a time-bound commandment, she is also permitted to recite the appropriate benediction that is said by men: “… who has sanctified us by His commandments and commanded us” (Tosafot on TB Kiddushin 31a, s.v. “delo makpidna”; Nachmanides, Novellae, TB Kiddushin 31a, s.v. “man d’amar li”; Ritba [Rabbi Yom Tov ben Avraham Asevilli], Novellae, TB Kiddushin 31a, s.v. “delo makpidna”; Ra’avya [Rabbi Eliezer ben Yoel HaLevi of Bonn], Part II, chap. 597). Indeed, as noted above, a women who attends public worship cannot be counted for the requisite quorum of ten. A reasonable, logical reason was, inter alia, given for this, which is that a person who is exempt from the performance of an obligation cannot be counted for the requisite, obligatory quorum for constituting a minyan of ten. For the very same reason, for example, a man who is exempt from the performance of commandments – e.g., when a man is required to mourn a relative who has died, that man is deemed an “onen” until the deceased is buried. In that period, he is exempt from the fulfilment of commandments, due to his sorrow and his involvement in making funeral arrangements. According to many halakhic decisors, because an onen is exempt from the obligation of prayer, he cannot be counted toward the quorum required for a minyan (Shayarei Knesset Gedolah, OH 55, Glosses of the Beit Yosef [Rabbi Joseph Karo] 4; Responsa Perah Mateh Aharon [Aharon ben Hayyim Avraham HaKohen Perahyah] Part I, 19; Rabbi Yaakov ben Yosef Reischer, Responsa Shevut Yaakov, Part II, 25). Therefore, women are counted as part of the quorum for a minyan for matters for which they are obligated for whatever reason (e.g., for the reading of the Megillah, the public sanctification of God’s name, etc. (see what we stated above, and see Weiss, ibid., at pp. 44-54)).

 

Women’s “Prayer Groups”

24.       Before the modern period, women did not generally go the synagogue for public prayer. In the modern period, women began attending synagogue services on the Sabbath and holidays. The prayers and the reading of the Torah were all conducted by men, who were in the men’s section of the synagogue, while the women sat in a separate women’s section, and fulfilled only a passive role, that is, they recited all of the prayers that were led and recited in the men’s section.

            The Petitioners in HCJ 257/89 ask to conduct prayers that are entirely constituted and led by women, as is customary in a minyan of men, i.e., including the recitation of kaddish, “barekhu”, and so forth. This is clearly in contradiction of the halakha. As opposed to them, the Petitioners in HCJ 2401/90 also wish to conduct prayer entirely constituted and led by women, but not as it is conducted in a minyan of men – i.e., with the recitation of kaddish, “barekhu”, and so forth – but rather without reciting those elements, so as not to contravene the halakha. These petitioners call their prayer ceremony “prayer groups” or “tefillah groups”, in order to distinguish between the status of the prayer group and that of a minyan of men. However, in regard to two matters with which their petition is concerned, the practice of their “prayer groups” is the same as the practice in a minyan of men – that is, they wear tallitot and tzitzit, and they read from the Torah, albeit without reciting the blessings and being “called up” to the Torah as is customary in a minyan of men.

25.           As noted, the women who are members of the “prayer groups” do not adopt the approach of the Petitioners in HCJ 257/89, inasmuch as it is incompatible with the halakhic rules. According to them, the approach of the “prayer groups”, as described above, is consistent with the halakhic rules. Some Orthodox rabbis support these “prayer groups”. But other Orthodox rabbis, who are also aware of the social role and education of contemporary, halakhically observant women, and who are supportive of such observance, nevertheless object to the approach of the “prayer groups”, and deem them harmful to the halakhic world. At present, the number of such “prayer groups” is not large. They were originally founded in the United States, and there are very few in Israel.

            These two approaches of Orthodox Jewry, although they hold much in common, also have sharp disagreements, as expressed in abundant writings, some of which we shall mention, while addressing a few of their details. Those disagreements are particularly pointed, and at present, the overwhelming majority of Orthodox Jewry absolutely rejects the “prayer groups”, and sees them as a serious deviation from halakha. We will address the nature and substance of these disagreements below. But before doing so, we will briefly make several observations on the subject of wearing a tallit and tzitzit, and reading the Torah by women.

 

Wearing a Tallit by Women

26.       Women are exempt from wearing tzitzit or a tallit, as this is one of the time-bound positive commandments inasmuch as the obligation is limited to a defined time period (day and not night). But as we noted, women are exempt from time-bound positive commandments, but they are not forbidden to perform them, and this applies to the mitzvah of tzitzit, as well. Maimonides even notes this principle in the context of the mitzvah of tzitzit, as follows (Maimonides, Laws concerning Tzitzit, 3:9):

The Torah exempts women … from tzitzit; women who wish to wrap themselves in tzitzit, do so without a blessing. Similarly, in regard to all other positive commandments from which women are exempt, if they wish to perform them without a blessing, we do not prevent them.

            This is also the view of Ravad [Rabbi Abraham ben David of Posquières] (Glosses of Ravad on Maimonides, Laws concerning Tzitzit 3:9), who adds that women are also permitted to recite the appropriate benediction upon the performance of commandments (see further, Commentary of Ravad on Sifra, Leviticus chap. 2).

            This brings us to differences of opinion in regard to the halakha as it concerns the question of whether women who voluntarily perform time-bound positive commandments may recite the benediction associated with the performance of those commandments. We earlier noted the view of some halakhic scholars, first and foremost Rabbeinu Tam [Rabbi Jacob ben Meir], one of the greatest Tosafists, that women are permitted to recite “who has sanctified us by His commandments … and commanded us”, and this is also the view of Ravad in regard to women who wear a tallit, who holds that they may recite the appropriate benediction. As opposed to that, the opinion of Maimonides was, as noted, that they may wear tzitzit but not recite the benediction, which is a different view that is held by many leading halakhic scholars, particularly Sephardic scholars (and see our discussion below).

            Thus, Rabbi Moshe Feinstein, writes in his aforementioned responsum (Responsa Iggerot Moshe, OH Part IV, 49) that just as women are permitted to perform time-bound positive commandments, and to recite the benediction, so it is in regard to the commandment of tzitzit: “it is possible for a woman who wishes to do so, to wear a garment that is distinct from men’s clothing, but that has four corners, and to tie tzitzit thereto and observe this commandment.” But Rabbi Feinstein adds a proviso that runs consistently through his work, stating:

However, clearly that is only if her soul yearns to perform commandments even though she is not commanded to perform them. However, since it is not with this intention, but rather due to her protest against God and His Torah, this is not the performance of a commandment at all, but the opposite, a forbidden act, for it is heresy as she performs it thinking it possible for the laws of the Torah to be changed, and it is a grave matter.

            This requirement of intentionality, that a commandment be performed for the purpose of observing it and not motivated by a lack of consideration of the halakhic rule due to “foreign considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world in regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto. The parties submitted a letter from Rabbi Tendler, the grandson of Rabbi Moshe Feinstein, which explicates the approach of his grandfather in regard to the great fear that the motives of the prayer groups derive from such extraneous considerations, and that the permission to wear a tallit is applicable only when it is clear that “their intention is for the sake of heaven, without any questioning of the Torah of Israel or the customs of Israel” (responsum (letter) of Rabbi Tendler).

            This reason represents one of the values of the halakhic world, and is an important element of the decision-making policy of halakha in general, and in regard to sensitive and special subjects such as the one before us, in particular. We shall further consider this aspect below.

            At the time of the Rishonim and the Aharonim there were women who wore tallitot and recited the benediction with the approval of the rabbinic sages (Maharam [Rabbi Meir ben Baruch] of Rothenberg, Teshuvot, Pesaqim u-Minhagim, I.Z. Kahana, ed. (Jerusalem, 1957) 24 p. 141; Responsa Tzemah Tzedek (of the third Lubavitcher Rebbe), OH 3, which presents a detailed examination of the subject; Rabbi M. Toledano, Ner HaMa’arav, p. 155; and see S. Ashkenazi, HaIsha  B’Aspeklariyat HaYahadut (1953) vol. I, p. 137). However, it has not been customary for women of more recent generations to wear tallitot, as opposed to other time-bound commandments such as the blowing of the shofar, waving the lulav, and sitting in the sukkah, which they customarily perform. The reason for this derives from the custom first recorded by Maharil [Rabbi Yaakov ben Moshe Moelin] (New Responsa of Maharil (Jerusalem, 1977) OH 7, pp. 13-14 (Hebrew)) that women refrain from it. This custom was cited by the Rema [Rabbi Moses Isserles] (Glosses on the Shulhan Arukh OH 17:2 (Hebrew)) as follows:

And in any case, if they wish to wear it and say the benediction, they may do so as with the other time-bound positive commandments … but it has the appearance of haughtiness. Therefore, they should not wear tzitzit, as it is not an obligation pertaining to the person.[6]

            From the writings of some of the more recent halakhic decisors, it appear that the contemporary custom is that women do not wear tzitzit (Rabbi Yaakov Chaim Sofer, Kaf HaHayyim, OH 17:8; Rabbi Yechiel Michel Epstein, Arukh HaShulhan, OH 17:b-c, and see the explanation of the author of the Arukh HaShulhan, loc. cit., of the Rema’s explanation “it has the appearance of haughtiness”, and his conclusion: “and therefore we do not permit them to perform this commandment, and that is the custom from which we should not deviate”; and see Rabbi S. Yisraeli, “The Performance of Commandments by Women,” published in HaIsha veHinukha (Emunah, 1980) (Hebrew), p. 29; and see Meiselman, above, at pp. 44-45, 152-154. To complete the picture, we should add the statement in the Targum Yonatan ben Uziel, Deuteronomy 22:5: “A woman must not put on a man’s apparel” etc., but this explanation was not accepted by most decisors (see the responsum of Rabbi Moshe Feinstein, which we quoted above, and his careful wording: “a garment that is distinct from men’s clothing”).  We should also note that the explanation of “the appearance of haughtiness” has not always led to a generally accepted prohibition in other contexts in which it is found. Thus, for example, some important halakhic decisors and kabbalists, like Rabbi Isaac Luria, the Ari, ruled that tzitzit should not be worn on the outside of one’s clothing because it has the appearance of haughtiness, and other important halakhic decisors ruled that one should not wear tefillin arranged in the manner specified by Rabbeinu Tam[7] because it has the appearance of haughtiness, yet in both cases, and particularly in regard to the former – not to wear tzitzit on the outside of one’s clothing – a significant part of the contemporary religiously observant community does not follow the ruling (and see on the above in detail, Chief Rabbi Ovadiah Yosef, Responsa Yehaveh Da’at, II, 1 (Hebrew)).

 

Reading the Torah by Women

27.       In the opinion of the majority of halakhic decisors, women are exempt from the obligation of reading the Torah, because it is deemed to be a time-bound positive commandment (Tosafot, TB Rosh Hashanah 33a, s.v. “ha rabi yehuda ha rabi yosei”’; and see the detailed discussion of most of the issues under discussion in this case in Ran on Rif, TB Megilla 23a, s.v. “hakol olin leminyan shiv’a”; Rabbi Shalom Mordechai Schwadron, Responsa Maharsham, I, 158; Arukh HaShulhan, OH 282:11).

            In order to examine this aspect of the matter before us, it would be appropriate to briefly examine the explanation given by the author of the Arukh HaShulhan (above). In beginning his explanation, he states that there is a halakhic source from which we may infer that women are indeed required to hear the reading of the Torah:

And note that in tractate Soferim (18:4) we find that women are required to hear the reading of the Torah like men, etc., and it is required to translate each portion and prophetic reading following the Sabbath Torah reading for the people, the women and children; end quote.

            However, he rejects this proof, as follows:

And it would appear to me that this is not an absolute obligation, but is like that of children, inasmuch as she is exempt from Torah study. Moreover, nothing is more time-bound than this. And as for a woman being counted in the quorum of seven (i.e., for the reading of the Torah, the reference is to TB Megilla 23a), the Tosafot already wrote in Rosh Hashanah (33a at the end of s.v. “ha”) that this is just as they recite the benedictions for all time-bound commandments… And this is not to be compared to the commandment of Hakhel, where the Torah commands (Deut. 31:12) “Gather [Hakhel] the people – men, women, children …” which is a special commandment that once in seven years the king himself reads words of admonition from the book of Deuteronomy.

 

            The reference is to what is stated in Deuteronomy 31:10-13, and it is appropriate that we quote the entire text, inasmuch as what is stated there serves as one of the sources cited in regard to the subject that we are addressing. And this is what is stated in those verses:

And Moses instructed them as follows: Every seventh year, the year set for remission, at the Feast of Booths, when all Israeli comes to appear before the Lord your God in the place which He will choose, you shall read this Teaching aloud in the presence of all Israel. Gather the people – men, women, children, and the strangers in your communities – that they may hear and so learn to revere the Lord your God and to observe faithfully every word of this Teaching. Their children, too, who have not had the experience, shall hear and learn to revere the Lord your God as long as they live in the land which you are about to cross the Jordan to occupy.

 

            The author of the Arukh HaShulhan therefore concludes that this does not prove that women are obligated in regard to the reading of the Torah, and he thus ends his remarks in stating:

But to state that women are obligated in regard to the reading of the Torah every Sabbath is certainly strange, and everyday conduct is proof, and for the most part, they cannot hear it. Rather, tractate Soferim states, as a matter of moral principle, that when they would translate, it was appropriate to translate before them and before the children in order to instill in their hearts the fear and the love of God.

And see Mishna Berura OH 282:12.

            As opposed to this view, it would seem to appear from the opinion of the Rabbi Abraham Abele Gombiner (Magen Avraham commentary (OH 282:6) on Shulhan Arukh, OH 282:3) that one might deduce from the sources cited by the Arukh HaShulhan that women are obligated for the reading of the Torah. After citing TB Megillah 23a that “all are qualified to be among the seven” [“hakol olin leminyan shiv’a”] (see above) and the various explanations that have been given for that, he continues to say:

It would appear from this that a woman is obligated to hear the reading of the Torah. And although it (reading the Torah) was enacted for the sake of Torah study, and women are exempt from Torah study, in any case it she is commanded to hear, as in regard to the commandment of Hakhel regarding which women and children are obligated. See section 146. However, it would seem that even though they are not obligated, they are qualified to be among the seven, and so wrote the Tosafot at the end of (tractate) Rosh Hashanah. But in tractate Soferim, chapter 18, it is written that women are obligated to hear the reading of the Torah like men, and it required that we translate for them so that they understand. End of quote.

But the Magen Avraham concludes his remarks as follows:

                        And here it is customary for the women to leave.

            This is not the appropriate place to address this issue at length for the purpose of our examination. For that very reason, we have not found it necessary to address the statement in tractate Megillah (above), and in Maimonides, Laws of Prayer, 12:17, and in the Shulhan Arukh, OH 282, in regard to “respect for the congregation” [k’vod ha-tzibbur] (in regard to the meaning of that expression, see the detailed discussion in Weiss, pp. 67-83; and see Meiselman, pp. 140-146).

            The obligation to read the Torah is defined as a time-bound positive commandment because it is specific to fixed times. Women are, therefore, not counted for the purpose of forming a minyan of ten for the reading of the Torah, just as they do not constitute a minyan for prayer. But they are permitted to read the Torah, where we are concerned with a “prayer group” composed solely of women, and the nature of that reading. The question that arises is in regard to reciting the “barechu” benediction, which was established by the Sages, and which is deemed to be among the “acts of sanctification” (see above). Many discussions resulted in various suggestions in regard to one benediction recited before the reading of the Torah, which is also recited before the morning prayers, and it is, therefore, permissible to recite it. As noted, the Petitioners in HCJ 2410/90, who seek to hold a prayer group while observing the halakhic rules, stated in their petition: “They read from a Torah scroll that they bring with them,” – “They do not hold a Torah reading service, and do not bless or “go up” to read from the Torah” (para. 11, above). Therefore, I see no need to elaborate further. We would note what was stated in the said letter of Rabbi Tendler, which we addressed earlier, who, after emphasizing the theoretical position in regard to the possibility of conducting “prayer groups” of women whose intention is for the sake of heaven, stated:

And they may read from the Torah, but must be careful not to do so in a manner that might be misinterpreted as public reading. For example, they may not publically recite the benediction or rely upon the benediction they made earlier, and if they have not yet recited it, they should do so silently.

            And see the conclusion of the said letter: “And there is no absolute prohibition for a menstruating woman to look upon or touch a Torah scroll, and even though it is proper to be stringent, in any case it has become prevalent to be lenient in this regard” (and see: Maimonides, Laws concerning the Torah Scroll, 10:8; Shulhan Arukh, YD 282:9; and see the Rema’s gloss on Shulhan Arukh OH 88:1; Weiss’ discussion in his aforementioned book, at pp. 85-98).

            As for reading in this manner in a synagogue, we will address that below.

 

Custom in the World of Halakha

28.       Having arrived at this point, it would be appropriate to say something about the power of custom in the halakhic system, which plays a special role in the subject of the case before us.

            A.        The subject of custom as one of the established, creative sources of Jewish law is discussed at length in in my book (Jewish Law – History, Sources, Principles, above, pp. 713ff.). Custom can testify to the existence of longstanding law, which has found its way into halakha by means of midrash, enactment, etc., and can itself serve as a creative source of law under certain circumstances and subject to certain conditions: the difference between the power of custom in regard to prohibitions and other fields of halakha; proof of the existence of the custom, and the assessment of the custom by halakhic experts – is it the result of a mistake, is it a bad custom, is it an imposition upon the public, etc. (see: ibid.). This is not the place to discuss this very broad subject at length. We would only note this: just as custom can be general, it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, in accordance with the existence of legitimate factors of the place and time that justify such change (see: ibid.; M. Elon, ed., Digest of the Responsa Literature of Spain and North Africa, v. I, (Institute of Jewish Law, 1986)  s.v. “Minhag”, pp. 230-233; and also see Prof. D. Sperber’s comprehensive Minhagei Yisrael: Origins and History,  v. I (Mossad Harav Kook, 1988) pp. 60-61 and fn. 18, v. II (1991).

            B.        Rabbi Zvi [Hershel] Schachter states in regard to our subject (“Tz’i lakh b’ikvei ha-tzon,” 17 Beit Yitzhak 118, 127 (1988):

We have never heard nor seen such a custom of arranging the reading of the Torah and the reading of the Megillah for women alone, and we are obligated to follow the tradition of our fathers and our fathers’ fathers in the manner of observing the commandments.

Therefore:

Since it was never customary for women to observe the commandment of prayer and reading the Torah, etc. in such a manner, we must not change our ancestral custom and create of our own imagination new types of conduct … and not only must we continue to follow the customs of our fathers, but it is also prohibited to change their customs. And although it is true that “we have not seen is not evidence”, in any case the Shakh [Siftei Kohen commentary of Rabbi Shabbatai ben Meir HaKohen] on [Shulhan Arukh] YD 1:1 explained “… that, in any case,  such conduct established the custom … and in any event such conduct is prohibited as being a change in custom” (ibid., pp. 128-129).

            This position is not unambiguous. Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arises, assuming that there is no halakhic prohibition that prevents it.

            C.        An interesting example of this can be found in two responsa of Rabbi Yehiel Weinberg, one of the most important contemporary halakhic decisors and in his Responsa Seridei Esh III:93 and 96 [New Edition:  II:39 and 62]. In support of his view, Rabbi Schachter cites one of those two responsa – number 96 (above, at p. 128), but a comparison of the two responsa yields a different conclusion. We will briefly examine the matter.

            In responsum 96, Rabbi Yehiel Weinberg considers the question whether it is permissible to employ a general anesthetic in the course of performing a circumcision of a child or an adult – such as a convert or a person not circumcised as child – in order to relieve him of the pain associated with circumcision. He answers in the negative, particularly in the case of an adult. In the other responsum – number 93 – Rabbi Yehiel Weinberg was asked about the permissibility of celebrating a bat mitzvah for a girl who has attained the age of obligation to the commandments, when she is 12 years old, just as it has always been the custom to celebrate the bar mitzvah of a boy who has reached the age of obligation, upon reaching the age of 13. In this matter, his answer is positive, and approves the celebration of a bat mitzvah for a girl. What the two responsa share in common is the introduction of a new practice in regard to circumcision and in regard to celebrating a bat mitzvah. In a long and detailed responsum, Rabbi Yehiel Weinberg explains his negative answer in the case of the use of an anesthetic in the course of a circumcision in that this possibility has long been available, even in Talmudic times, but the halakhic sages expressed their opposition to its use, for halakhic reasons detailed in the responsum, and in such matters the principle “a custom of Israel is Law” applies, and we may not deviate therefrom. As opposed to this, he gives a positive answer in regard to the celebrating of a bat mitzvah. His reasons for this response are instructive. Indeed, there was no such custom of celebrating a bat mitzvah in past generations, and therefore:

There are those who argue against permitting the celebrating of a bat mitzvah, as it is contrary to the custom of prior generations that did not observe this custom (ibid., sec. 1).

But he rejects this argument. And why?

But in truth, this is no argument, because in prior generations there was no need to see to the education of girls, as every Jew was filled with Torah and the fear of heaven, and even the atmosphere of every Jewish city was brimming with Jewish spirit … but times have radically changed … (ibid.).

And also this:

And it is heartbreaking that in regard to general education, the study of secular literature, natural sciences and humanities, girls are educated in the same manner as boys, but religious studies, the study of Bible, the ethical literature of the Sages, and the study of the practical commandments that women are obliged to observe, are entirely neglected. To our good fortune, the Jewish leaders of the previous generation were aware of this problem, and they established institutions for Torah education and the strengthening of religion for Jewish girls. The establishment of a large, comprehensive network of Beth Jacob schools is the most wonderful expression of our generation. And common sense and the demands of pedagogic principles almost require that we also celebrate a girl’s attainment of obligation to commandments.

And this distinction that we make between boys and girls in regard to the celebration of attaining maturity deeply offends the humanity of a maturing girl who, in other areas, has achieved emancipation, as it were.

And as for the fear of “extraneous considerations” in introducing a new custom of celebrating a bat mitzvah, i.e., the fear of imitating the practices of gentiles, and so forth, he states:

And those among our brethren who have introduced this innovation of celebrating a bat mitzvah say that they do so in order to instill in the heart of a girl who has reached the age of obligation a sense of love for Judaism and its commandments, and to awaken her sense of pride in being a daughter of a great, holy nation. And we are not concerned that the gentiles celebrate confirmation for both boys and girls, for they do what they do and we do what we do. They pray and bow in their churches, and we bend our knees, bow and offer thanks to the King of kings, the Holy One, blessed be he (ibid. p. 296, col. 1 [New Edition: p. 458, sec. 26]).

 

            D.        In conclusion, a custom that deviates from a prior custom that forbids the custom to be introduced – as in the case of anesthesia for a circumcision – and which is not justified by legitimate social and ideological changes in the halakhic world may not be followed, inasmuch as that is the power of a custom for which there is no material, halakhic justification for change. As opposed to this, the introduction of a new custom – such as the celebration of a bat mitzvah – that is not contrary to law and which was not observed in the past due to different social and ideological circumstances that have entirely changed (and see what we wrote above – para, 19 – in the Nagar case and the Shakdiel case in regard to the difference in the social role and education of contemporary women), is appropriate on the merits in order to prevent in our generation what Rabbi Yehiel Weinberg described as “this distinction that we make between boys and girls in regard to the celebration of attaining maturity (which) deeply offends the humanity of a maturing girl”.

            Rabbi Weinberg’s student Prof. Eliezer Berkovits addressed this material distinction in regard to custom in light of the above two responsa of Rabbi Weinberg in his book Jewish Women in Time And Torah (1990) pp. 79-81.  He arrived at the conclusion (at p. 81) that women’s “prayer groups” may be permissible, subject to the restrictions observed by them, as we explained above.

            E.         The celebration of a bat mitzvah for a girl who has reached the age of twelve was also addressed by Rabbi Moshe Feinstein (Responsa Iggerot Moshe, OH  I, 104). In his responsum, he expresses doubt as to the propriety of introducing the custom of celebrating a bat mitzvah, and he does not deem such a celebration to be “a mitzvah or a se’udat mitzvah [a religiously required celebratory meal], but merely a celebration like a birthday party”. Rabbi Moshe Feinstein absolutely prohibits celebrating a bat mitzvah in a synagogue, permitting it only in the home. He adds, as we have seen elsewhere in his earlier responsum, the consideration that such a celebration may comprise an improper extraneous consideration of emulating the practices of groups that do not accept the primary obligation to the observance of halakha. In his aforementioned responsum, Rabbi Yehiel Weinberg agreed with this proviso stated by Rabbi Moshe Feinstein that a bat mitzvah not be held in the synagogue, “but only in a private home or a social hall adjacent to the synagogue” (above, at p. 297, col. 1), for the reason of the improper extraneous consideration of emulation.

            Incidentally, in his responsum, Rabbi Yehiel Weinberg addresses the question of why the fact that a custom derives from negatively characterized imitation deems it as deriving from an “extraneous consideration” that taints the custom, and why a bat mitzvah celebration should not properly be held in a synagogue. The reason is that this custom imitates a practice of the Reform Movement, which sought, and achieved among its members, the abrogation halakhic rules that were fundamental to Judaism, inter alia, “they eliminated all reference to the return to Zion and the restoration of the Temple worship to Jerusalem” (ibid., 93, p. 298; and see: our discussion of the position of the Reform Movement, then and now, that does not recognize the halakhic system as an obligatory, normative system even in regard to the most fundamental matters of the Jewish world, in HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism v. Minister of Religion, IsrSC 43 (2) 661, 705-709; and see Responsa Seridei Esh, III:93; an instructive responsum by Professor Rabbi David Zvi Hoffmann, one of the most important halakhic decisors of the previous generation, in Responsa Melamed Le-ho’il, OH 16, concerning the prohibiting of the playing of an organ in the synagogue due to this consideration of imitation). This proviso, with which Rabbi Yehiel concurred, is also founded upon the special care required in changing synagogue practices, as we shall discuss below.

            F.         From the above responsum of Rabbi Moshe Feinstein, we see that he was not comfortable with the idea of introducing bat mitzvah celebrations, as explained above. In this regard, it is interesting to note the responsum of the Sephardic Chief Rabbi, Rabbi Ovadiah Yosef, who took an unequivocally favorable view of celebrating and encouraging this custom, and he even recommends it:

… It certainly would appear that it is a mitzvah to have festive meal and celebration for a bat mitzvah, in accordance with what the Maharshal (Rabbi Solomon Luria, one of the great halakhists of sixteenth-century Poland) wrote in his book Yam shel Shlomo (Bava Kama, 7:37), that there is no greater se’udat mitzvah than that of a bar mitzvah… And so it is, as well, in regard to a girl who becomes obligated to the commandments that a woman must observe, and it therefore a mitzvah for her that she performs, it is good to make it a day of celebration and also a mitzvah to do so… (Responsa Yabi’a Omer, part II, OH 29, para. 4).

            Chief Rabbi Ovadiah Yosef also addresses this matter in another place (Responsa Yeheveh Da’at, part II, 29), where he adds (at p. 111):

And in fact, preventing bat mitzvah celebrations lends support to the sinners to criticize the scholars for oppressing the daughters of Israel and discriminating between boys and girls.

            He also cites and relies upon Rabbi Yehiel Weinberg’s view (in Responsum 93) that it is not an emulation of the gentiles, and that not holding bat mitzvah celebrations constitutes a form of discrimination that severely injures a girls humanity.

            Further on, Rabbi Ovadiah Yosef relies upon other response of contemporary Sephardic halakhists, among them Rabbi Ovadiah Hedaya (Responsa Yaskil Avdi, part V, OH 28) who is also of the opinion, as is also the case for the illustrious Rabbi Yosef Ben Ish Hai (Responsa Yabi’a Omer, above; and Yeheveh Da’at, above).

            Rabbi Ovadiah Yosef refers to the opinion of Rabbi Moshe Feinstein, who cast doubt on the propriety of celebrating bat mitzvahs, as we noted above, and takes exception to his view:

…And I saw that the illustrious Rabbi Moshe Feinstein, in Responsa Iggerot Moshe, part I, OH 104, wrote … And with all due respect for his knowledge, what he says is not clear, inasmuch as she enters into the commandments and is like an adult who is obligated and observes all the commandments that a woman is required to observe, certainly it is a mitzvah … (Responsa Yabi’a Omer, above; and see response Yeheveh Da’at, above, pp 110-111 in which he disagrees with other things that Rabbi Moshe Feinstein wrote in this regard in justification of his position, and see there).

            Thus, Chief Rabbi Ovadiah Yosef concludes his responsum (Yeheveh Da’at, above):

The custom of making a festive party and a meal of thanksgiving and rejoicing for a bat mitzvah on the day she attains thirteen years and one day is a good and proper custom. And it is appropriate to say words of Torah, and sing songs in praise of God. However, the rules of modesty must be carefully observed in accordance with our holy Torah … and our blessed God will not withhold His blessings from those who attend in good faith.

            It should be noted that Rabbi Yosef does not refer to Rabbi Yehiel Weinberg’s statement that a bat mitzvah celebration not be held in a synagogue. In this regard, we should take note of what we said in regard to the opinion of the late Sephardic Chief Rabbi, Rabbi Ben-Zion Meir Hai Uziel, in regard to his opinion that women should be granted the right to vote, like men, for various public institutions. Thus we wrote in the Shakdiel case, at p. 257:

The approach of Rabbi Uziel is instructive in his bringing “indirect” evidence of the spirit of the halakha that points to the desirable policy. According to halakha, a person who brings a sacrifice lays his hand on the animal’s head. In this regard. [Midrash] Sifra, Leviticus, chap. 2 states: “And he shall lay his hand upon the head of the burnt offering (Leviticus 1:4) – the sons of Israel lay their hands and the daughters of Israel do not lay their hands”. In other words, the law in regard to the laying of hands upon an animal sacrifice does not apply to a woman.

            But the Midrash goes on to state:

Rabbi Yosei said, Abba Elazar told me, we had a calf for a peace-offering, and we took it out to the Women’s Court (of the Temple), and the women laid their hands upon it, not because laying of hands applies to women, but for their gratification.”

If that is how we are to act in regard to something that is forbidden – laying hands by women – then, continues Rabbi Uziel, a fortiori we should act in that manner in regard to the granting women the right to vote, as no law forbids it “and preventing them from participating (in elections) would be an insult and a misrepresentation”.

            This assembled material, and the judicial policy that it indicates, are also appropriate to the matter before us.

            G.        This is the way of custom as a creative source of halakha. Custom is rooted in the accepted principles of halakha, its rules and values. Today, when Jewish women study and teach, and know the law and the ways of halakha, it is proper that when a woman attains the age of obligation to the commandments, that occasion be celebrated as it is for boys. But sometimes there are considerations, which are also legitimate, that influence the acceptance of a custom by halakhic sages subject to various provisos, due to a fear of imitation and extraneous influences – each according to his approach to deciding halakha and the extent of the existence of a fear of imitation in this or some other place. In the world of halakhic values, this fear must also be given significance, after careful, appropriate examination. We shall address this below.

 

Changing Synagogue Custom

29.       The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact is expressed in regard to the custom of “prayer groups”, which is a central issue in this case. Such “prayer groups” are generally conducted outside of synagogues, in special places designated for them. Thus, Rabbi Avraham Weiss, in his abovementioned book, at p. 18, writes: “Even in communities where women’s groups have been approved by the rabbinic leadership, the synagogue has, with few exceptions, been declared off limits to them. In virtually all cases, they are held in homes or rented hotel facilities.” Indeed, Rabbi Weiss goes on to point out that the synagogue is the most appropriate and preferable place for conducting prayer, and his words are worthy of consideration. But as far as our investigation into the nature of custom and the manner of observing it goes, we find that, in practice, the overwhelming majority of “prayer groups” are not held in synagogues themselves, which attests to the especially problematic nature of changing custom as it relates to synagogue practice (and see the Encyclopedia Talmudit, vol. 3, s.v. Beit Haknesset, pp. 192ff. (Hebrew); in regard to the use of a synagogue, its sanctity and respect, see loc. cit.; and see Rabbi Zvi Schachter, above, p. 130; and see: Rabbi Abraham Isaac HaKohen Kook, Responsa Orah Mishpat 38).

 

The Synagogue in the Western Wall Plaza

30.       What we have said thus far is of special interest in regard to the subject of this case – conducting the Petitioners’ prayers in the Western Wall Plaza. The prayer space at the Western Wall is the holiest synagogue in the halakhic and Jewish world. It is the place of which the Midrash (Exodus Rabba 2:2, and elsewhere) states:

                        The Divine Presence never departs from the Western Wall.

            Indeed, the Western Wall is not a part of the Temple itself, but a wall surrounding the Temple Mount upon which the Temple stood. But in Jewish tradition, the Wall is generally viewed as a “remnant of our Temple”. The prayers recited in the synagogue replace the Temple service following its destruction, and synagogues are referred to as “mikdash m’at” [a little sanctuary]: “Yet have I been to them as a little sanctuary (Ezekiel 11:16). Rabbi Isaac said: This refers to the synagogues and houses of learning in Babylonia” (TB Megilla 29a; and see HCJ 4185/90 Temple Mount Faithful v. Attorney General, IsrSC 47 (5) 221, 230).

            Throughout the generations, Jews have considered prayer beside the site of the Temple to be especially propitious, and especially beside the Western Wall – the only remnant that remains of the Temple (see HCJ 4185/90, ibid., at pp. 245-246). Due to the fact that the plaza before the Western Wall has always served as a permanent place for Jewish prayer, the halakhic scholars held that this plaza is subject to the law of a synagogue. Thus, in the last century, Rabbi Hillel Moshe Gelbstein wrote in his book Mishkenot Le-Abir Yaakov:

It is a mitzvah to respect and extol that place as much as possible, at least as much as a synagogue, and more so … because it stands before the holy and awesome place … we must try with all our might to make … an attractive, elegant and beautiful floor ... and of course protect it from desecration as far as possible …and a fortiori in comparison to a synagogue … for the outer wall of a synagogue is holy like the synagogue itself.

            Moreover, the site of the Western Wall is subject to the commandment of “guarding the Temple” [against desecration], for although it is not possible to fulfill that in our day at the actual site of the Temple, it can be observed adjacent to the Temple Mount, that is, beside the Western Wall (Rabbi Gelbstein’s remarks are quoted in Zvi Kaplan, “The Western Wall in Halakha,” 5728 Shana Beshana 174-175 (Hebrew)).

            And this is what Chief Rabbi Ovadiah Yosef ruled on the subject:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

 

The Prohibition upon changing Custom “On account of the Disputes”

31.       At the prayer area beside the Western Wall, which must be treated like a synagogue and even more so, there was never any customary women’s prayer, neither in the form requested by the Petitioners in HCJ 257/89, nor in the form of “prayer groups”, as described in HCJ 2410/90. Granting the Petitioners’ petitions would involve a clear change in the local custom in the synagogue, as observed for generations upon generations. An important principle of halakha is that custom should not be changed “on account of the disputes [that would ensue]” (TB Pesahim 50a-b). This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza. This is the unequivocal opinion of the Chief Rabbis of Israel, which we noted above.

            In his letter, Rabbi Avraham Shapira wrote:

Moreover, in addition to the halakhic prohibition, as noted above, there is also a principle of prohibiting the annulling of customs, which was never done, whether in regard to tzitzit or in regard to a women’s prayer in a minyan. Such a thing is unheard of and unacceptable in Judaism, and for this reason alone, it is unlawful, as a custom of Israel is Law.

All of this is true even if they do so in their own homes. But when they come to change the halakha and custom in public, in a holy place like the Western Wall, a matter that raises dispute, contention and altercations, there is also a prohibition of increasing disputes in Israel, and the desecration of a holy place (response of Rabbi Avraham Shapira (letter)).

            That is also the conclusion to be drawn from the letter of the Sephardic Chief Rabbi, Rabbi Mordechai Eliyahu, in his aforementioned opinion:

We are commanded and warned not to change any custom, and particularly customs of synagogue prayer … and it is therefore prohibited to make any change in the traditional manner of prayer of many generations at the Western Wall, which is a remnant of our Temple and our glory, besides having the additional holiness of being the place of the prayers of all Israel (response of Rabbi Mordechai Eliyahu (letter)).

            As we shall see, the opinions of the Chief Rabbis of Israel are of legal importance in the Israeli legal system in regard to the issue addressed by the petitions before the Court.

32.       Much has been written and said on the extreme severity of causing disputes, particularly in synagogues. We will suffice in quoting the words of the Hafetz Hayim [Israel Meir HaCohen Kagan] (Mishna Berura, OH 151:2):

And all the more so must one be careful in the synagogue and study hall to refrain from offenses of forbidden speech such as defamation, rumor mongering, disputes and altercations, because not only are these very serious offenses, but the offense is even greater in a holy place because it shows contempt for the Divine Presence, as a person who sins alone is not like a person who sins in the King’s palace, in the presence of the King.

And even worse, such a person also causes the public to commit those serious offenses, as “strife is like a ruptured water pipe” (TB Sanhedrin 7a), in the beginning the sin seeps into a few people, and ultimately the channels unite into strife between one and another until the entire synagogue is ablaze like a bonfire, and to our great discredit, this sometimes leads to disgrace, insult and public shaming, and to blows and informing, and increasing the desecration of God’s name.

            An important principle of halakha, particularly in the field of customs, was established on the basis of the biblical statement “lo titgodedu” [literally: “you shall not cut yourselves”] (Deut. 14.1), which the Sages interpreted as a severe prohibition of sectarianism[8] and dispute (see: M. Elon, Jewish Law – History, Sources, Principles, p. 759; [Rabbi Yehuda Greenwald], Responsa Zikhron Yehuda, 37; [Isaac ben Sheshet Perfet], Responsa Rivash, 512; [Simon ben Tzemah Duran], Tashbatz, II 204, III 176; [Ben-Zion Meir Hai Uziel], Mishpetei Uziel, III, HM 228). The Sages were particularly strict in regard to changes in synagogue customs, in light of the injunction “lo titgodedu” (see: Prof. Y.D. Gilat, “Lo Titgodedu,” 18-19 Bar Ilan University Yearbook 88ff. (1981)).

 

The Severity of the Disagreements on the Issue in the World of Halakha

33.       We became aware of the severity of the disagreement concerning the issue before us from the detailed description of the facts, as presented in the petitions and from all the event that occurred in the affair: the prayer space beside the Western Wall became a “battlefield” of extreme violence, hitting, tear gas, physically lying on the floor of the prayer area before the Wall, and incessant incitement, and all in front of the various media. But this is not the only way that the dispute was expressed. As we stated, this subject – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values, or to be more precise, in regard to the implementation of its values. We briefly addressed this earlier in regard to the issue before us. It would be appropriate to take a further, special look into this matter, which, at its core, concerns a dispute between two opposing approaches to halakhic values, with each approach sharing a common devotion to halakha. This can be seen in reading the aforementioned article of Rabbi Zvi Schachter, who serves as a rosh yeshiva at Yeshiva University in New York (“Tz’i lakh b’ikvei ha-tzon,” 17 Beit Yitzhak 118, 134 (1988)), and the aforementioned book of Rabbi Avraham Weiss, which we cited earlier. We will consider several examples.

            A.        As noted, the Petitioners in HCJ 2410/90 conduct women’s “prayer groups” that are not considered “prayer in a minyan”. They do not include the reciting of the “barekhu”, “kedusha”, or a repetition of the amida, and they are not halakhically flawed from a formal perspective. Yet, in Rabbi Schachter’s opinion, women’s prayer groups should not be conducted because, in his words: “If they were to pray in a regular minyan in a synagogue, they would observe the obligation to prayer in its fullest form (that is, with the recitation of “barekhu”, kaddish, etc.), and by making a “minyan” of their own, they detract from their prayer” (ibid., p. 118).

            It is hard to understand this argument. As earlier noted, women are indeed halakhically obligated to private prayer, but they are not obligated to public worship, and therefore, they are not counted for the purpose of constituting a “minyan” in its halakhic sense. What, then, is detracted when a woman does not pray in the women’s section [of the synagogue] in the presence of a minyan of men, but rather prays with a group of women, and thus does not hear the “barekhu”,etc., which she is not obligated to hear? (Weiss, ibid., pp. 55-56). Moreover, “prayer groups” of women (that do not perform “acts of sanctification”) are common in Orthodox schools and colleges for women, and it was never the practice to bring a “minyan” of men to those prayer services in order to enable the saying of “barekhu”, etc. The same flaw in Rabbi Schachter’s argument is present in regard to the reading of the Torah by women without reciting the “barekhu” benediction, and in regard to other matters, as well.

            B.        Rabbi Schachter views women’s prayer groups as a “falsification of the Torah” (ibid., p. 119).Why? Because “their intention is to demonstrate that women are as important as men”. Rabbi Schachter relies upon a statement of the Maharshal, Rabbi Solomon Luria, one of the great halakhists of sixteenth-century Poland, which was made in an entirely different context (Yam shel Shlomo, Bava Kama, 4:9). The Maharshal absolutely and emphatically forbids teaching Torah to a non-Jew, due to the attendant spiritual and other dangers, and he disagrees with those “in Spain, Italy and the Moslem lands who study God’s Torah with the gentiles for their pleasure and salaries”, referring to the Jews of Spain and the East who studied and discoursed with non-Jews. But I searched the writings of the Maharshal and did not find the term “falsification of the Torah”! In any case, it is hard to understand what connection there might be between what the Maharshal wrote and the subject of women’s prayer groups, and what might be halakhically wrong with women viewing themselves to be as important as men, and conducting public worship in which “acts of sanctification” are not performed!

            C.        In the opinion of Rabbi Schachter, the public prayer of such Orthodox women smacks of “hukkot akum” [non-Jewish practices] (ibid., 131). Why? “Because it is clear that such practices did not emerge from a vacuum, but rather are a result of the general trend of women’s liberation, whose subject and purpose in this regard is licentiousness, and to make them equal to men in every way possible” (ibid.). And not merely non-Jewish practices in general, but “non-Jewish practices in the performance of mitzvoth” (ibid.), and he cites Nachmanides on the verse (Deut. 12:30): “Beware of being lured into their ways”. With all due respect to the honorable author, it is hard to fathom the intention of this statement. Why would one suspect that the participants in public prayer restricted to women and led by women might be guilty of such grave intentions and tendencies, when the very manner in which they are conducted proves strict observance of the halakhic rules prohibiting such acts of sanctification as the repetition of the amida, and so forth? Does that alone not prove that the purpose of the organizers of such public prayer by women – carefully observing the halakhic framework and its rules – serves a spiritual purpose that derives from knowledge and awareness of the commandments and halakha, the views and approaches of rabbinic scholars and thinkers, and from many years of study in Torah-im-Derekh-Eretz educational institutions, and that as a result of that education they seek to express themselves, within the confines of halakha, by means of the “prayer groups” that are the subject of these proceedings? Indeed, this is how Rabbi Yehiel Weinberg, author of the Seridei Esh, views the intentions and proper desires of those parents and girls who wish to celebrate a bat mitzvah, and the same is explicitly stated by Chief Rabbi Ovadiah Yosef, as we quoted above.

            D.        In his pointed opposition to women’s “prayer groups”, even when they are not viewed as a constituting a minyan, Rabbi Zvi Schachter relies upon the decisions of two of the generation’s foremost halakhic decisors, the late Rabbi Moshe Feinstein and the late Rabbi Joseph B. Soloveitchik:

It is well known that two of the greatest scholars of this generation, to whom we all defer, our teacher Rabbi Joseph B. Soloveitchik, and our teacher Rabbi Moshe Feinstein, are very much opposed to all the above conduct, as well as to special hakafot for women, and special “minyans” for prayer, and for reading the Torah and the Megillah. And see the Tosafot on Bava Batra (51b) s.v. “beram”, per Rabbeinu Tam, that if all the leading authorities of the generation disagree with him, then his opinion is without value” (ibid., p. 126).

            Rabbi Weiss correctly comments that this statement is not precise. As for the opinion of the late Rabbi Soloveitchik, we do not have a written record, and what is attributed to him is based upon the statements of students who sought his advice. From them we learn that he was not opposed to the very existence of prayer groups, but rather to particular aspects of their practice, such as reciting the Torah blessings before and after the reading of the Torah (Rabbi Weiss, ibid., pp. 107-108). And as for the opinion of the late Rabbi Moshe Feinstein, it can be found in a detailed responsum (Iggerot Moshe, OH, part 4, 49), which we discussed above. That responsum does not present a rejection of women’s prayer groups in principle, provided that they are conducted for the sake of heaven, except as regards certain changes relating to particular practices of such groups regarding the reading of the Torah (see: Rabbi Weiss, ibid., pp. 108-110); and see in the footnotes, ad. loc., what Rabbi Mordechai Tendler wrote on behalf of his grandfather, Rabbi Moshe Feinstein, which we addressed above; and see, ibid., pp. 111-112, fn. 39).

34.       We should note that Rabbi Zvi Schachter’s pointed objection to women’s prayer groups is particular to this specific subject, and it does not derive from a general approach that rejects the reality of halakhic development and change over the course of generations and eras, in accordance with the recognized, special methods for change provided by the halakha itself. Rabbi Schachter emphasizes this in several places in his article, and it is appropriate that we take note of them (ibid., pp. 122-124):

It is clear that the halakha is not frozen. The large number of situational changes requires that halakha change. The questions of the year 5748 are completely different from those of 5738, and in any case, in many instances, different answers are needed.

Moreover, just as there is progress in the scientific world, so there is progress in the halakhic world. See Genesis Rabba on VaYera (49:2) that there is no day when  God does not innovate a new halakha in the Heavenly court. And see Yalkut Shimoni on the book of Judges (Remez 49) explaining the verse “When new gods were chosen, then war was at the gates …” [Judges 5:8], concerning the wars of Torah, that the Holy One loves innovation in Torah. And in the words of Rabbi Chaim of Volozhin (in his book Nefesh HaChaim, 4:46), the awesome, wondrous effects of man’s true Toraitic innovations upon Heaven are immeasurable.

            Further on, he cites the responsum of the Netziv [Rabbi Naftali Zvi Yehuda Berlin] of Volozhin (Meishiv Davar, I, 46), and goes on to say (ibid., p. 123):

And see in that responsum, that this is the case, and this is the reason in regard to an innovation in the performance of a mitzvah, which even if not done for the sake of Heaven, still constitutes the performance of a mitzvah. But in the case of the innovation of a new practice, if it is not done for the sake of Heaven, that innovation cannot be called a mitzvah at all. And that is the meaning of the Mishna in Avot (2:2) that “all who labor with the community labor with them for the sake of Heaven”, because labors undertaken not for the sake of Heaven are not mitzvoth at all. For labor that does not involve any specific mitzvah (like laying tefillin or blowing the shofar, and so forth) that defines the labor as the performance of a mitzvah, must be labor that is for the sake of Heaven in order for that labor to be deemed a mitzvah.

            Notwithstanding this generally positive approach, the aforesaid does not apply, according to Rabbi Schachter, to the matter before us.

And the reason that they prefer to make a “minyan” (i.e. “prayer groups” – M.E.) for themselves is not by reason of the halakhic principle that “it is more meritorious through himself than through an agent” [TB Kiddushin 41a], but rather because “a man prefers a kab of his own to nine of his neighbor’s” [TB Bava Metzia 38a], and in their “minyan” the women feel that it is “their thing”. Surely we should not willfully destroy the additional halakhic essentials that we mentioned above (letter A) for such a feeling. On the contrary, we must sensitize these educated, intelligent women to sensitize and repair their spiritual resources to the point that they are consonant with the priorities of halakha (ibid., 121).

            Therefore (ibid., p. 122):

We must also explain to those women, who with God’s help this generation has become more righteous,[9] and who are more educated both in Torah and wisdom than previous generations … that all our women are deemed important, and it was never our practice to deny the rights of women. And so there is no need or purpose for us in the objectives of the women’s liberation movement, inasmuch as the halakha instituted several obligations upon a husband in regard to his wife, like the seven obligations of a woman toward her husband, among them to love his wife as himself, and to respect her more than himself … and we find several places in the Bible and the Talmud where women are lauded more than men, and it is the halakha that a woman is deemed an adult at the age of 12, while a man at 13, because God granted women greater understanding than men, and so it is in other, similar matters. And in any case, truth be told, our women should not feel that they have only now been liberated from their servitude, and adopt the psychological attitude of a slave who has become a king, but rather they should themselves see and understand that it has always been thus among us, for the promise that God made to women is greater than that of men, and that there has not really been any fundamental or systematic change in our view of the importance of women, but merely changes in details, inasmuch as the entire world has changed in recent years, but not changes is the principles.

35.       I have said what I have, and commented as I have, because that is the way of Torah and the “war” of Torah. And I have treated Rabbi Schachter’s remarks at length in order to point out the especially problematic nature of the matter before us.

            As stated in the remarks we have just quoted, Rabbi Schachter’s opinion is that the halakhic world, by its nature, does not stagnate, and that it is open to innovation and to enactments in accordance with the needs of time and place. But it also comprises matters and principles regarding which halakhic creativity must be exercised with great caution. In his opinion, the subject of this case is among them. He is aware of the changes that have occurred over the last generations in regard to the social status of women, in their knowledge of halakha, and in their education, but none of these – in his view – justify the change represented by women’s prayer groups, which are influenced by “extraneous” and extra-halakhic considerations, and all that is associated therewith, in regard to the central place of prayer and the synagogue in Jewish tradition (and also see: ibid., at the end of p. 125, and pp. 127ff in regard to “the purpose of the mitzvah in the acts of mitzvoth”, and pp. 130-131 in regard to the particularly stringent approach to “synagogue customs).

36.       We have thus come to the end of our discussion of the issue, and this is not the place to elaborate further. A detailed, comprehensive discussion of this fundamental issue can be found in many additional sources in halakhic literature, as well as in articles and research in addition to those we have cited, and I refer the interested reader to them.

            As we hinted at earlier, a significant part of the disagreements and approaches in this great, complex and sensitive matter concerns not merely the determination of the law in the halakhic system, but also the evaluation of the values of the halakhic world – which also constitute part of the law in the broad sense – and the application of those values to the present case; the lege lata and lege ferenda, and the appropriate judicial-halakhic policy – in light of the past and in view of desires for the future. These are accepted, legitimate considerations in the halakhic world in general, and they are of particular importance in regard to a sensitive subject such as the one before us. Indeed, each side has expressed its views both on the world of halakha and on the realities of the contemporary world in regard to the status of women – including women who are halakhically observant and equally heedful of the minor mitzvoth and the major ones – in terms of their social roles and status, their knowledge of the Torah and its commandments, the ways of the world and their education. But the parties disagree in their evaluations, and therefore in their conclusions.

            Needless to say, an in-depth study of the halakhic sources, with both knowledge and understanding, as practiced from generation to generation, is a necessary prior condition to any proper halakhic examination of any halakhic matter, and of the matter before us. To this we must add an evaluation of the values of the halakhic world and the manner of their application in every generation, in accordance with its problems and needs.

            This is a double condition. Each of the two approaches in this matter, which we have considered above, claims to meet the requirements of this double condition.

            In this regard, it would be appropriate to add a few remarks concerning the element of imitation, which serves as a factor of recognized influence upon judicial policy in deciding the law and recognizing customs in the halakhic world. As we saw, this factor is mentioned often by decisors and scholars in regard to our subject. The intention here is to imitation of a negative character of things practiced outside the world of halakha and Judaism, whether directly – i.e., imitation of “non-Jewish practices” – or indirectly – i.e., imitation of the Reform Movement, which is influenced to an extreme degree by things that are contrary to the basic principles of Judaism and halakha, such as elementary kosher laws, marriage and divorce, conversion, and at one time, even the annulment of the religio-national bond to the land of Israel, and so forth, which present an absolute contradiction of the entirety of the world of halakha.  Thus we saw that Rabbi Yehiel Weinberg did not view Christian “confirmation”, which applies to boys and girls, as a factor that influences the propriety of the custom of celebrating a bat mitzvah in the Jewish world, stating, “they do what they do and we do what we do”. So it is in regard to the very celebration of a bat mitzvah. But as for the question of celebrating a bat mitzvah in the synagogue or not, he takes account of the fact that Reform Jewry celebrates bat mitzvahs in the synagogue , and in order to prevent influence by the Reform Movement – which does not recognize the obligatory nature of halakha – upon the halakhic world, he is of the opinion that it would be improper to hold a bat mitzvah celebration in the synagogue itself – as was the Reform practice at that time, under the influence of elements foreign to Judaism – but rather in a hall adjacent to the synagogue.

            Granting weight to the factor of negative imitation as an extraneous consideration in the halakhic world is a factor that we also find, in principle, in the general legal system in the field of public administrative law, where it is referred to as an “extraneous consideration”, and it is from there that I have “borrowed” the term. In other words, a court may void an administrative decision by reason of it having been made for motives and considerations that were foreign to the subject of the decision. So it is in the halakhic world, in which a new law or custom will also be examined in light of the nature of the considerations that led to the creation of the law or custom, and whether those considerations were irrelevant or, at times, contradictory to the spirit of the halakha and its values, and thus extraneous considerations that may lead to the abolition of the new law or custom.

            Extraneous considerations are weighed in halakha much as they are in the general law. In certain cases, the conclusion will be that there was no extraneous consideration of “unwanted” influence from another cultural or conceptual world. In other cases, there may be an influence that is not deemed to exercise a negative impact of an extent justifying the abrogation of the new law or custom. In other cases, the conclusion may be that the extraneous consideration is so negative that annulling the new law or custom is appropriate and correct.

            The choice among the various possibilities is a value judgment that concerns judicial policy in the halakhic world, much as it is in the case of a judicial ruling in the general legal system in regard to the presence or absence of an extraneous consideration in an administrative decision.

37.       Rabbi Schachter concludes his detailed article as follows:

And the true God gave us a Torah of truth, a Torah in which the truth is written, our eyes look only to the truth, and blessed be He who keeps his true promise, for the Torah of truth will not be forsworn by the true people.

            As for the truth in the world of halakha, there is a great saying of the Gaon of Vilna explaining the statement of the Sages that a judge must “judge true judgment that is according to the truth” (TB Shabbat 10a, and elsewhere). Many halakhic scholars ask: What is “true judgment that is according to the truth”? Is there “truth” that is not “according to the truth”? And what is the nature of this truth that is according to the truth?

            The Gaon provided this answer:

Judges must be experts in worldly matters so that they do not rule erroneously, for if they are not expert in such matters, then even if they are expert in the Torah law, the result will not be according to the truth. In other words, even though he will give true judgment, it will not be according to the truth … and therefore the judge must be an expert in both … that is, wise in matters of Torah and astute with regard to worldly affairs (Commentary of the Gaon of Vilna (Mikra’ot Gedolot, Pardes) to Proverbs 6:4).

            Torah law that is integrated with the nature of the world is “according to the truth”; Torah law alone, without astuteness with regard to worldly affairs is “true”, but not “according to the truth”. According to Rabbi Zvi Schachter, the matter before us must be decided in accordance with Torah law, true law, but the “nature of the world” – which in the matter before us is the social and educational reality of contemporary women – is absent, due to the nature of the subject, its centrality, and the “extraneous considerations” that may be involved, for the purpose of integration in a decision that would be “according to the truth”. So the question remains—is that approach according to the truth?

38.       Rabbi Avraham Weiss, in his aforementioned comprehensive book, considers the matter before us, and inter alia, is critical of Rabbi Zvi Schachter’s approach for some of the same reasons we raised above. He concludes his examination of women’s prayer groups, inter alia, with the following words (pp. 123-124):

Within halakhic guidelines, women may participate in women’s prayer groups, as long as these groups fall into the halakhic category of tefillah and not minyan … Participants in such groups are not rebelling against Torah Judaism. Quite the contrary. They are seeking to instill greater religious meaning in their lives. Their purpose is not to diminish the Torah, but to enhance their Jewish commitment and halakhic observance … Their quest to reach nobly to attain this lofty objective should be applauded.

            These earnest thoughts are worthy of consideration against the background of the special sensitivity of the halakhic world in regard to changes in synagogue customs, as we discussed above (and see Rabbi Weiss, ibid., p. 118ff.) Having noted the explanation of the Gaon of Vilna in regard to the concept of the “thorough truth” that a judge must strive to realize, we will mention an additional explanation of this concept, which is appropriate to what we have just quoted and stated (see the Mishnah Rishonah commentary to Mishna Pe’ah, 8:9, s.v. “vechen dayan shedan emet la’amito”):

Because it is possible for a judge to recuse himself from judging in the belief that even if he would believe that he is judging truly, there is still the fear that if the case were brought before a greater judge, it would be found that he was in error, the result would be that no person would be willing to judge, for fear of error. Therefore it says: “according to the truth”, because he has only his own truth, as opposed to his knowing that it is false. But if it appears to him that he is judging truly, then he should fear no more, because even if he errs, he is not culpable, because he was scrupulous in accordance with what he believed.

And so we find in the Gemara at the end of the first chapter (6b) of Sanhedrin: “And lest the judge should say, ‘Why have all this trouble and responsibility?’ It is therefore said: ‘He is with you in giving judgment’. The judge is to be concerned only with what he actually sees with his own eyes.” And Rashi explains: “According to what he sees with his own eyes – he will render true justice.”

            And this too is part of judging “true judgment that is according to the truth”.

 

Summary of the Halakha in regard to the Issue at Bar

39.       As we have seen, the subject of these petitions is very sensitive in the Jewish world in general, and in the halakhic world in particular. The petition of the Petitioners in HCJ 257/89 is contrary to the world of halakha and generations of halakhic decisions. But even in the halakhic world, there is sharp disagreement. One view, reflected by the petition in HCJ 2410/90, is expressed in the comprehensive discussion of women’s prayer groups in Rabbi Weiss’ book. Even there we find uncertainty as to the manner for realizing this approach, whether in the framework of the synagogue or whether elsewhere, outside of the synagogue, due to the generally greater sensitivity in regard to change in synagogue customs as opposed to other changes in customs. The second approach is that expressed by Rabbi Zvi Schachter in his detailed article. Although it recognizes the possibility of change in customs and laws by the accepted means of the halakhic world, it strongly opposes the approach of petitioners in HCJ 2410/9, even in regard to conducting “prayer groups” outside of the synagogue. The strongest opposition to this approach is expressed in the opinions of the two Chief Rabbis of Israel. We referred to part of Rabbi Avraham Shapira’s opinion above (para. 31). Rabbi Shapira concludes his opinion saying:

In brief: in terms of law, all of the above things, including wearing tzitzit by women, and conducting a minyan by women for acts of sanctification, are contrary to the halakha and contrary to custom, and are unacceptable in Israel, and what we have here is simply a satanic act intended to increase dispute and raise accusations against Israel. And the matters are so simple, that they require no elaboration.

            We also referred to part of the opinion of the Sephardic Chief Rabbi, Rabbi Mordechai Eliyahu (para. 31, above), who concludes in stating:

No nation has ever desecrated its own holy place, even concerning such customary actions as removing shoes, and so forth. Will Jews come to annul the customs of those of us who seek to preserve the customs of our holy ancestors? We will not permit it. This would be an insult to generations of righteous women, an insult to all the women who come daily to pray, and an insult to the Torah of Israel.

            These pointed, strong disagreements should be understood against the background of the special issue before us. We are concerned with a subject that holds a central place in the world of halakha and the Jewish religion. As earlier noted, Jewish tradition sees the synagogue as a “little sanctuary”, a reminder and continuation of the Temple that stood on the Temple Mount. The synagogue is and was a center and gathering point for the religious experience and the world of halakha. That is the reason for the substantial difference between the issue before us and the halakhic world’s acceptance of change in regard to the status of women in areas like education, the study of Torah, the right to vote for and be elected to public office, and other subjects. It is conceivable that the substantial change in the status and role of women in this century, in which religiously observant participate, will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups, as noted above. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue. The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – would constitute a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

 

The Holy Places and the Principle of Preserving the Status Quo

40.       Having reached this point, we will now return to an examination of the issue in light of Israeli law and case-law.

            Nothing matches the Holy Places as a source for disputes, altercations and bloody flare-ups. The intensity of emotion in regard to these places, deriving from deep in the human heart, is so great that it can ignite conflagrations. It therefore requires that the Executive and the Judiciary approach disputes relating to the Holy Places with extreme caution. This is well known, and we need not elaborate.

            A comprehensive survey of the disputes over the Holy Places in the Land of Israel can be found in S. Berkowitz, The Legal Status of the Holy Places in Jerusalem (Diss., Hebrew University, 1978 (Hebrew)), and the interested reader can review the details there.

41.       The history of the Holy Places in the Land of Israel goes back some three-thousand years, with the building of the First Temple on Mount Moriah by King Solomon. And even a thousand years earlier, since the Binding of Isaac by Abraham in the “Land of Moriah”, Mount Moriah was holy in the eyes of the People of Israel (see in detail, our comments in HCJ 4185/90, pp. 228-240).

            The disputes over the Holy Places originated after the destruction of the Temple, beginning in the seventh century, between Christians and Moslems, and from the thirteenth century to the First World War the disputes were characterized by struggles among the various Christian churches. In 1757, these disputes resulted in what is referred to as the Ottoman Status Quo. The history of this arrangement can be found in the opinion of the late Agranat, P. in the National Circles case (above, p. 196).

 

The British Mandate

42.       With the conclusion of the First World War and the granting of the Mandate for Palestine to Great Britain, the subject of the Holy Places was addressed in articles 13 and 14 of the Mandate.

            The late President Agranat wrote the following in regard to these articles of the Mandate, in the National Circles case, p. 192:

Article 13 defines the responsibility of the Mandatory Power for the Holy Places and the other religious places (buildings or sites) in Palestine. That responsibility included the duty, in regard to such places, to preserve the “existing rights”, securing freedom of access and the free exercise of worship. It was further established that the fulfillment of those duties will be subject to its responsibility to ensure “the requirements of public order and decorum”.

My first comment relates to the meaning of the term “existing rights”. I should note that it is not my intention to address the construction of that term or definitively establish its meaning. My primary purpose is to point out that during the Mandatory period, the responsibility to preserve “existing rights” was generally understood to refer to the duty to preserve the status quo ante bellum, that is, those rights in regard to the Holy Places that actually prevailed prior to the outbreak of the First World War (see: J. Stoyanovski, The Mandate for Palestine (London: Longmans, Green, 1928) p. 293) [emphasis added – M.E.].

            Article 14 of the Mandate provided for the appointment of a special commission in connection with the Holy Places, the composition of which was supposed to be established by the Mandatory, subject to the approval of the Council of the League of Nations. Such a council was never established, and the British government therefore promulgated the Palestine Order-in-Council (Holy Places) (see: the National Circles case, p. 198).

 

The Palestine Order-in-Council (Holy Places)

43.       The Order-in-Council comprised two operative sections. The first, art. 2, was intended to exclude the hearing or determining of any matter in connection with the Holy Places from the jurisdiction of the courts:

Notwithstanding anything to the contrary in the Palestine Order-in-Council, 1922, or any Ordinance or Law in Palestine, no cause or matter in connection with the Holy Places or religious buildings or sites or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any Court in Palestine.

            The second provision – art. 3 – was a complimentary provision that granted the High Commissioner the authority to decide the preliminary question “whether any cause or matter comes within the terms of the preceding Article”. The High Commissioner’s decision upon the question “shall be final and binding on all parties”. According to art. 3, the authority of the High Commissioner was intended to be temporary, “pending the constitution of a Commission charged with jurisdiction over the matters set out in the said Article”. As noted, the said commission was never established.

            The late President Agranat addressed the reasons for the promulgation of the Order-in-Council in the National Circles case:

As we saw, the said article (article 14 of the Mandate – M.E.) requires the conclusion that the authority to decide upon rights and claims relating to the Holy Places was not granted to the Mandatory, but was intended for a commission that was to be appointed with the approval of the Council of the League of Nations. Thus, the Mandatory did not think itself – and could not think itself – as having jurisdiction to determine such rights and claims, even by means of the courts that it established in Palestine. It therefore established, by means of the Order-in-Council, 1924, that such matters are non-justiciable. Therefore, it also granted the High Commissioner the limited and “minimal” authority mentioned in art. 3 of the Order-in-Council – an authority that has nothing to do with the substantive determination of disputes in relation to the Holy Places (ibid., at p. 202).

President Agranat went on to say (at p. 203):

If one were to ask how, under such circumstances, the Mandatory thought to fulfill … the responsibility placed upon it in regard to the Holy Places under art. 13 of the Mandate – the necessary answer is twofold. First, inasmuch as the article established that the responsibility to preserve the “existing rights” and secure free access and the free exercise of worship was subject to the obligation to ensure the requirements of public order and decorum in those places, therefore the Mandatory conducted itself (or purported to conduct itself) in accordance with the principle that the latter duty precedes the others, and that it is required to fulfill it without addressing the merits of the rights and claims, which were a dispute between the competing religious sects. But concurrently, it was required to act, to the extent possible, to preserve – and this is the second principle, which will be further discussed – the situation that it apprehended to be the “status quo” [emphasis added – M.E.].

44.       In 1929, L.G.A. Cust, the former District Officer of Jerusalem, prepared a secret report for the Mandatory government: The Status Quo in the Holy Places (hereinafter: the Cust Report). The report was intended to aid the officers of the Government of Palestine in in deciding upon the  interpretation and application of the Status Quo in the Holy Places (see the Report’s Introductory Note, written by H.C. Luke, the Chief Secretary to the Government of Palestine). The Report did, indeed, serve as a basis for the application of the Ottoman Status Quo during the Mandate period (see: Berkowitz, above, at p. 34).

            The report addresses in great detail the various rights granted to the Christian communities in the Holy Places – the Church of the Holy Sepulchre in Jerusalem, the Sanctuary of the Ascension on the Mount of Olives, the Tomb of the Virgin at Gethsemane, and the Church of the Nativity in Bethlehem. As an example of the great detail in regard to the Holy Places – detail that was a practical necessity due to the many disputes – we will present the Report’s summary of the situation in the Church of the Holy Sepulchre. Rights are claimed in this church by the Orthodox, the Latins, the Armenians, the Copts, the Ethiopians, and the Jacobites:

In the various component parts of the Church the position at the present moment can be summarized as follows:—

(1) The Entrance Doorway and the Facade, the Stone of Unc­tion, the Parvis of the Rotunda, the great Dome and the Edicule are common property. The three rites consent to the partition of the costs of any work of repair between them in equal proportion. The Entrance Courtyard is in common use, but the Orthodox alone have the right to clean it.

(2) The Dome of the Katholikon is claimed by the Orthodox as being under their exclusive jurisdiction.  The other Communities do not recognize this, maintaining that it is part of the general fabric of the Church, and demand a share in any costs of repair. The Orthodox, however, refuse to share payment with any other Community. The same conditions apply mutatis mutandis to the Helena Chapel, claimed by the Armenians, and the Chapel of the Invention of the Cross claimed by the Latins.

(3) The ownership of the Seven Arches of the Virgin is in dispute between the Latins and the Orthodox, of the Chapel of St. Nicodemus between the Armenians and the Syrian Jacobites, and of the Deir al Sultan between the Copts and Abyssinians. In these cases neither party will agree to the other doing any work of repair or to divide the costs.

(4) The Chapel of the Apparition, the Calvary Chapels, and the Commemorative shrines are in the sole possession of one or other of the rites, but the others enjoy certain rights of office therein. Any projected innovation or work of repair is to be notified to the other rites.

(5) The Katholikon, the Galleries and the Chapels in the Court­yard (other than the Orthodox Chapels on the West) are in the exclusive jurisdiction of one or other of the rites, but subject to the main principles of the Status Quo as being within the ensemble of the Holy Sepulchre.

(Cust Report, pp. 14-15. The Cust Report also included reference to the Jewish Holy Places – the Western Wall and Rachel’s Tomb (Cust Report, pp. 43-48)).

 

The Western Wall

45.       In HCJ 4185/90, we discussed the regard of the Jewish people to the Western Wall at length, and we will present a summary of that discussion:

…The Temple Mount is the holiest place, the first in its level of holiness, for the Jewish people for some three-thousand years, ever since Solomon built the First temple on Mount Moriah (II Chronicles 3:1), and Mount Moriah itself was holy for the People of Israel even a thousand years earlier, since the Binding of Isaac by Abraham – Patriarch of the Jewish People – in the “Land of Moriah” (Genesis 22:2). The Temple Mount is Mount Moriah, “and Isaac our forefather was sacrificed in the Temple” (Maimonides, Laws concerning the Chosen House, 2:1-2; 8:1). This primary holiness of the Temple Mount remains to this very day, even following the destruction of the First and Second Temples: “There is no sanctuary for all generations except in Jerusalem and on Mount Moriah … as it says (Psalms 132:14): This is My resting place forever” (Maimonides, ibid., 1:3). And the western wall of the Temple Mount (the Western Wall), which stands to this very day, is the holiest site in Jewish tradition (at p. 244).

            When the Land was conquered by foreigners, each conqueror had a special interest, of varying extent, in the Temple Mount (see in detail, HCJ 4184/90, at pp. 240-243). Even in those situations, Jews maintained their connection with the Temple Mount and conducted prayers there throughout all the years of exile (see ibid., at pp. 245-256). And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty (see HCJ 4185/90, at pp. 228-229, 232, 233-234, 237-239, 270-271).

            In modern times, the disputes around the Western Wall have increased, along with attempts to deny Jewish historical rights to the site:

At that time (the middle of the nineteenth century) there were many attempts by the Jews to improve their standing at the site most holy to them. In the 1850’s, Hakham Abdallah of Bombay [Rabbi Ovadia (Abdallah) Somekh] tried to buy the Wall, but failed. [Moses] Montefiore unsuccessfully tried to obtain a permit to better the lot of the worshippers by placing benches (or large stones) for sitting, and erecting a rain canopy above the area, but the Jews were permitted only to pave the area. There are testimonies that a table for reading the Torah, as well as a canopy, were occasionally installed, but these arrangements were temporary and were regularly rescinded at the demand of the Waqf, which feared that the Jews would obtain rights over the area. In 1887, Baron Rothschild came up with a plan to purchase the Mughrabi Quarter, remove its dismal stones and – with the consent of the Jerusalem rabbis – turn it into a Jewish trust … but the plan was abandoned for reasons that have remained largely unknown to this day … On the eve of the First World War, the Anglo-Palestine Bank attempted to purchase the Western Wall area for the Jews, but the negotiations were interrupted by the outbreak of war. In the meantime, Jews began to write on the Wall, hammer in nails, place notes in it, and erect prayer furnishings and benches, a mehitza to separate between men and women, a glass-enclosed case for candles, a table for reading the Torah, etc. This led the head of the Waqf to lodge a complaint, in 1912, with the Turkish authorities, and they ordered the removal of all the above furnishings – that had, in the meantime, become almost a tradition – in order to prevent Jewish “possession” of the Western Wall.

…

After the Balfour Declaration and the Mandate, Jews were granted recognized national status in Palestine, and they began to emphasize the importance of the Western Wall as a national symbol, in addition to its traditional religious significance. As opposed to this, the Mufti employed … the claim that the Jews were trying to take over the Wall in order to incite his flock against “the Zionists”. Thus, without any religious or historical basis, he declared the Wall to be a holy Moslem site. The Western Wall, to which Moslems had never before ascribed any importance – and which, at times, they even did not refrain from soiling in order to anger the Jews – was now called “Al Buraq”, in honor of Muhammad’s horse, which the Prophet allegedly tethered to the Wall during his legendary visit to Jerusalem. Interreligious friction concerning the Western Wall continued throughout the 1920’s. In order to aggravate the Jews, the Mufti, who looked down at the Wall from his office in the adjacent “Mahqama”, ordered the making of an opening at the southern end of the Wall, at the Mughrabi Gate, such as to turn the prayer plaza from a dead-end into a thoroughfare for pedestrians and animals, in order to emphasize Moslem ownership of the Wall, several layers of stone were added (on the north), and a wall was built on the northern side, such that those who passed through its gate disturbed the worshippers. On the other side of that wall, adjacent to the Temple Mount, long and loud Moslem ceremonies were intentionally conducted. All of this in addition to the complaints which served to intensify the interreligious tensions. The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began …

In response to these events, the British established a commission of enquiry. The report of the commission included an express comment in regard to the Mufti’s use of the Al-Buraq legend to incite against the Jews. In addition, the report recommended the establishment of an international commission to resolve the “Wailing Wall controversy”. Such a commission was appointed by the League of Nations. Its members were Swiss, Swedish and Dutch, and it conducted the “Wall trial” in Jerusalem in the summer of 1930. Its report (of December 1930) established that the Moslems had absolute ownership of the Wall, but the Jews had an uncontestable right to access it for prayer. However, it also established that the Jews did not have a right to place benches in the plaza, nor to blow the shofar. The Arabs rejected the report’s conclusions, while the Jews accepted them. However, the prohibition upon blowing the shofar was not acceptable to the Jewish public, which viewed it as a harsh insult. Every year, young nationalist Jews continued to blow the shofar at the Wall at the end of Yom Kippur, which always led to the intervention of the British police and to arrests (HaEncyclopedia HaIvrit, vol. XX (1971), s.v. “HaKotel HaMa’aravi”, pp. 1122-1124).

            As for the conclusions of the commission:

They were given the force of law in The Palestine (Western or Wailing Wall) Order-in-Council, 1931. It is generally agreed that this Order-in-Council breathed its last breath with the establishment of the State of Israel (the National Circles case, p. 208). (On the Western Wall, also see: M. Ben Dov, M. Naor, & Z. Aner, The Western Wall, 13^th ed. (1989) (Hebrew).

 

The Liberation of the Western Wall in the Six Day War

46.       With the Jordanian occupation, in 1948, access to the Western Wall was denied to the Jewish residents of the State of Israel. During this period – as far as the Israeli legislature was concerned – there was no need for any specific law treating of the Holy Places, inasmuch as they were in foreign hands. This situation changed with the liberation of the Western Wall in the Six Day War. We addressed this in HCJ 4185/90, above, pp. 246-247:

In the Six Day War, when the Kingdom of Jordan initiated a military attack against the State of Israel and the Jewish part of Jerusalem, the Temple Mount and the Western Wall were liberated from the Jordanian occupation. In addition to the religio-cultural connection between the Temple Mount and the Jewish People, which was never severed, Israeli political sovereignty over the Temple Mount was restored, as it was for a long period in the history of the Jewish nation, from the building of the First Temple by King Solomon, some three-thousand years ago. The historical circle was closed. At the time of the liberation of the Temple Mount by the Israel Defense Forces, while the battles were still raging, the commanders of the IDF ordered that the Holy Places of other religions not be harmed, and to scrupulously maintain respect for them (see: George Rivlin, Har HaBayit BeYadeinu (Ma’archot) 322-323; Amanat Yerushalayim, ibid., part IV, and the bibliography there). That is how Israel’s fighters felt and ordered, as the prophet Micah prophesied: “For all the peoples walk each in the name of its god, but we walk in the name of the Lord our God for ever and ever” (Micah, 4:5)…

…

A few days after the liberation of the Temple Mount, the Israeli government decided, for political and security considerations, to order the paratroop company on the Temple Mount to leave the area. A Border Police observation post was erected, and the area was kept under constant surveillance (Schiller, p. 40). The government also decided to allow Moslems to continue to maintain their presence and worship on the Temple Mount. For these very reasons and additional reasons … and in order to prevent friction with the Moslems, the government decided not to permit public worship by Jews on the Temple Mount.

            This reality led the Knesset to adopt the Protection of the Holy Places Law, on 19 Sivan 5727 (June 27, 1967), which we quoted above (para. 12). The provisions of that law were reiterated in sec. 3 of Basic Law: Jerusalem, Capital of Israel, which states as follows:

                        Protection of Holy Places:

3. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places.

 

The National Circles Affair

47.       After the liberation of the Temple Mount, Jews sought to pray there, but the police prevented them. When this occurred in 1968, the National Circles Association petitioned the High Court of Justice to order the Israel Police to “provide appropriate security … in order to prevent the disturbance of Jewish prayer on the Temple Mount”, and “to refrain from disturbing Jewish prayer on the Temple Mount”. The petition was assigned to an expanded bench of six judges. The petition was dismissed by a unanimous Court, but the justices’ opinions differed as to the reasons for the dismissal. All of the justices, as well as the State’s attorneys, agreed that the right of Jews to pray on the Temple Mount, per se, was uncontested. In the words of the late President Agranat:

It would be superfluous to point out … that the right of Jews to pray on the Temple Mount is their natural right, rooted deep in the long history of the Jewish People (National Circles, p. 221).

            Nevertheless, the petition was dismissed. The late Silberg D.P. was of the opinion that the petition should be dismissed because the Protection of the Holy Places Law could not be applied without the promulgation of regulations that would provide practical guidelines for exercising the right to pray on the Temple Mount, given that the site is the holy place of worship for two peoples, Jews and Moslems. Inasmuch as the petitioners had not asked that the Minister promulgate such regulations, the petition should be denied (ibid., pp. 153-156). However, he emphasized that, in his opinion, the Court held jurisdiction to consider the petition, even though it concerned a Holy Place, because The Palestine Order-in-Council (Holy Places), which restricted the Court’s jurisdiction, ceased to hold force and was nullified upon the termination of the Mandate (ibid., pp. 156-158).

            Witkon J. was also of the opinion that The Palestine Order-in-Council (Holy Places) was nullified upon the establishment of the State of Israel, or at least upon the enactment of the Protection of the Holy Places Law (ibid., pp. 161-162), but that the right of the petitioners to request the aid of the police for the purpose of conducting prayers on the Temple Mount was limited by the “common-sense test” (ibid., p. 168). As far as the petition was concerned, “the situation is sensitive and dangerous due to the interreligious situation, and the site is ripe for trouble” (ibid.). Therefore, there were no grounds for the intervention of the Court in the discretion exercised by the police in deciding not to extend assistance to the petitioners (ibid., pp. 166-168).

            Berenson J. was of the opinion that The Palestine Order-in-Council (Holy Places) continued to be in force, and therefore, inasmuch as the petition concerned a Holy Place, the Court lacked jurisdiction to hear or determine the issue. The Government was authorized to address the issue, in accordance with sec. 29 of Basic Law: The Government, which establishes: “The Government is competent to do in the name of the State, subject to any law, any act the doing of which is not enjoined by law upon another authority.” (ibid., pp. 170-178). That was, essentially, the view of the late Kister J., as well (ibid., pp. 182-189).

            As opposed to them, the late Agranat P. was of the opinion that the Protection of the Holy Places Law impliedly repealed the Palestine Order-in-Council (Holy Places) pro tanto. The Protection of the Holy Places Law established substantive rights in regard to the prevention of the desecration of a Holy Place, freedom of access to the Holy Place, and in regard to injury to the feelings of the various religious groups towards their Holy Places (see sec. 1 of the Law). But the Law did not say so much as a word in regard to the right of worship at the Holy Places. In the view of Agranat P., the Protection of the Holy Places Law thus repealed the Order-in-Council in regard to anything repugnant to that Law, but the Order-in-Council remained in force in regard to the right of worship, which was not addressed by the Law. Therefore, the Court held jurisdiction to address the prevention of desecration of a Holy Place, but it did not hold jurisdiction to hear claims in regard to freedom of worship in the Holy Places. The treatment of that matter was granted to the Executive branch (National Circles, pp. 218-228).

            Inasmuch as two of the justices – the late Silberg D.P. and the late Witkon J. – were of the opinion that the Order-in-Council was null and void, and two of the justices – Berenson and Kister JJ. – were of the opinion that the Order-in-Council remained in force, the result was that the opinion of Agranat P. – that the Order-in-Council was repealed in part, but remained in force in regard to rights of worship in the Holy Places – prevailed. This is not the place to elaborate further.

 

The Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police Case

48.       A good example of the extreme sensitivity of the Holy Places can be found in the Coptic Patriarch case. In HCJ 109/70 Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police, IsrSC 25(1) 225 (hereinafter: the first Coptic Patriarch case), this Court addressed a dispute between the Coptic religious community and the Ethiopian religious community. The subject of the dispute was two chapels, “The Chapel of the Four Living Creatures” and the “Chapel of Saint Michael” (adjacent to the Church of the Holy Sepulchre, whose “division” among the various Christian communities we addressed above (para. 44) in the Cust Report), and the passage through which they are entered. In practice, control of the passage and the chapels is maintained by affixing locks on the doors to at the ends of the passage and holding the keys used for opening and closing them. Until the event that led to the petition, the passage and the chapels were controlled by the Copts, but the Ethiopians claimed an exclusive right to possession and worship. During the Easter celebrations of 1970, while the Copts were standing in prayer in the Church of the Holy Sepulchre, the Ethiopians changed the locks affixed to the doors at the two ends of the passage. Pursuant to that, the Coptic Patriarch submitted a petition to this Court, asking that the Court order the restoration of the preexisting status (the first Coptic Patriarch case, pp. 229-234).

            In the Court’s judgment (per Agranat P., Landau, Berenson, Witkon and Kister JJ. concurring), Agranat P. emphasized that the Court would not address the conflicting claims of the parties concerning the disputed rights of ownership and possession, inasmuch as the Court lacked jurisdiction, as was held the National Circles case (the first Coptic Patriarch case, pp. 234-235). However, Agranat P. was of the opinion that the petitioner’s prayer for relief was well founded in principle, based upon the prohibition of self-help. Therefore, on 19 Adar 5731 (March 16, 1971, he ordered that the order nisi issued against the Minister of Police be made absolute, but that “… the implementation of the order be postponed until April 6, 1971, in order to allow the Government, if it find appropriate, to exercise its authority – which it always has – to address the substantive dispute at issue in any manner that it may deem fit. Clearly, in a case as this, the Government may, at any time, issue an order to the parties for the purpose of temporarily regulating the possession, which will be in force until a final decision or arrangement as to the dispute” (ibid., p. 252).

49.       That did not bring the matter to a close. The further developments following the first Coptic Patriarch case are set out in HCJ 188/77 Orthodox Coptic Patriarch of Jerusalem v. Government of the State of Israel, IsrSC 33 (1) 225 (hereinafter: the second Coptic Patriarchate case). The Government issued an interim order not to change the possession of the two Chapels, that is, to leave the possession in the hands of the Ethiopian community, while allowing the Coptic community a right of access. The Government appointed a ministerial committee to decide the dispute between the two churches. The ministerial committee held many meetings, heard detailed arguments, and tried – to no avail – to bring the parties to a compromise. Four years passed, the Government changed, and a new Prime Minister was elected in 1977. Then Prime Minister, the late Mr. Menachem Begin, decided to hand the entire matter to the Ministerial Committee for Jerusalem. That committee established a sub-committee of its members to address the Coptic-Ethiopian dispute after the petition was submitted in the second Coptic Patriarchate case, in which the Court was asked to implement the order absolute issued in the first Coptic Patriarch case. The sub-committee held many meetings, and it too heard the arguments of the parties. The Court made an additional attempt to bring the parties to an agreement, but all to no avail. In the end, when the Court was forced to render judgment, the opinions of the justices were divided.

            In his dissenting opinion, Landau D.P. (Witkon J., concurring in principle) took the view that the petition should be granted, and the Government should be ordered to decide the Coptic Patriarchate’s claim within a reasonable period (ibid., at pp. 241, 248-249). The majority of the Court – Asher, Bechor, and S. Levin JJ. – was of the opinion that the petition should be denied because “the time dimension for deciding is a matter regarding which there is almost nothing in common between the approach of the Court and the Government’s approach to it” (ibid., p. 246).

            This is what occurred in one example of a dispute and disagreement in regard to one of the Holy Places. It is an important warning in regard to the issue before us. And with this we conclude our examination of the history of the Holy Places.

50.       An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions. Such an approach is inappropriate to the nature of the Judiciary, which is used to deciding disputes definitively on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch. It relied upon the long-established principle of maintaining the status quo. Preserving the existing situation is the only means that ensures that peace and quiet, and public decorum – so necessary for places imbued with holiness – will be maintained.

 

Freedom of Worship and the Near-Certainty Test

51.       The principle of preserving the status quo can be presented in terms of legal rules that we employ in similar matters. Such is the rule by which a person’s freedom of worship is not absolute, but must retreat where there is a probable threat of harm to public order. This legal rule would seem to be nothing other than the status quo principle in different clothing, more appropriate to the Holy Places.

            Freedom of worship and religion is a fundamental right of our legal system. This was held in HCJ 262/62 Peretz v. Kfar Shemaryahu Local Council, IsrSC 16 2101; IsrSJ 4 191, and it is undisputed:

Religion and ritual are not merely matters of legal ruling to be gathered from the books but essentially matters of emotion, faith and reverence, and even of taste and sensitivity, which are not to be measured by any objective scale equal for all (at p. 2105 per Cohn J. [IsrSJ  4 194]).

…the Council in its decision (not to rent a public hall to members of the Progressive Judaism movement for the festival of Sukkot – M.E.) displayed a bias to one religious denomination and denied the right to exist of another, and in a somewhat arrogant tone decided that the form of service hitherto followed in the village is capable of providing for the religious requirements of the local inhabitants. I would have thought that it is a matter for each individual to search his own soul and decide which form of religious service and which form of prayer would give him inner satisfaction and elevation of spirit. If unity in public life and avoidance of division is what the Council strives for, compulsion will not serve to achieve such aims, and not at the expense of freedom of conscience and religion (ibid., p. 2113 per Witkon J. [IsrSJ 4 204]).

And in the words of Sussman P:

…but neither is it up to them (the Council – M.E.) to decide that the local inhabitants should pray in one form and not in another … But the Declaration of Independence guarantees freedom of religion and worship to every citizen of the State, and even if the Declaration itself does not grant the citizen a right enforceable by judicial process, the way of life of the citizens of the State is determined by it and its fundamental nature obliges every authority in the State to be guided by it (ibid., at p. 2116 [IsrSJ 4 207]).

            More recently, Shamgar P. wrote in his decision in HCJ 650/85 Movement for Progressive Judaism v. Minister for Religious Affairs IsrSC 42 (3) 377, 381:

Freedom of religion and worship is one of the fundamental freedoms recognized by our legal system, and constitutes a part of it.  The expressions of this freedom are, of course, primarily found in the freedoms of religious expression and action, but that is not sufficient. That freedom also requires, inter alia, that all believers be treated equally, and that governmental authorities refrain from any act or omission in regard to the believers of all movements, as well as their organizations and institutions, that smacks of discrimination.

Therefore, every general act performed in the course of carrying out the functions of a governmental authority requires an open, fair approach that is not conditional upon identification with the views of any movement, but that expresses the equality to which all movements are entitled.

52.       Freedom of worship is not an absolute freedom, and it retreats before other rights and interests:

Freedom of conscience, belief, religion and worship, to the extent that it proceeds from potential to practice, is not an absolute freedom … My right to pray does not permit me to trespass upon another’s borders or create a nuisance. Freedom of conscience, belief, religion and worship is a relative freedom. It must be balanced against other rights and interests deserving of protection, such as private and public property rights and freedom of movement. One of the interests that must be considered is that of public order and safety (HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38 (2) 449, 455, per Barak P.).

            As for the “balancing formula” between freedom of worship and public order and safety, this Court has held that it is to be found in the “near-certainty test”:

… Freedom of conscience, belief, religion and worship is limited and restricted in so far as required and necessary for the protection of public safety and public order. Of course, before any action is taken that may violate or limit this freedom by reason of harm to public safety, the police ought to adopt all reasonable means at its disposal in order to prevent the violation of public safety without violating the right to belief, religion and worship. Therefore, if the fear is of violence against the worshippers by a hostile crowd, the police must act against that violence and not against the worshippers. But if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety.

… The power of the police is not unlimited. It is tasked with many responsibilities. Protecting freedom of conscience, belief, religion and worship is one of the duties of the police, but not its only one. It must also protect other freedoms, including the freedom of conscience and religion of others. In such circumstances, there may be a situation in which, despite the actions of the police, the fear of harm to public safety may remain. Does the existence of that fear, which is not certain, justify the denial or limitation of freedom of conscience, belief, religion and worship?

A fear alone … is not sufficient, but absolute certainty is also not required. Israeli law takes a middle ground of near-certainty … It would therefore appear to me that it would be appropriate that the “near-certainty test” serve for establishing the “balancing equation” between freedom of conscience, belief, religion and worship, on the one hand, and public safety on the other (ibid., pp. 455-456).

            The finding that there is near-certainty that the exercise of freedom of worship will harm public safety must have an evidentiary basis. Such evidence may be found in prior experience:

The requirement is of “substantial” evidence … the assessment must be based upon known facts, including past experience. Conjectures, speculations and apprehensions are not enough (HCJ 153/83 Levi v. Southern District Police Commander, IsrSC 38 (2) 393, 411 [English translation: http://elyon1.court.gov.il/files_eng/83/530/001/Z01/83001530.z01.pdf].

            In the Holy Places there is – in light of past experience that we have reviewed at length – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit the freedom of worship in the Holy Places, and to delimit it due to the need to preserve public order. In the Holy Places, the principle of maintaining the status quo is often nothing more than a concrete expression of the near-certainty test.

 

Freedom of Worship and the Need for finding the Common Denominator of the Worshippers

53.       In the matter of the petitions at bar, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers. The legal principle that must apply to the latter – when it arises in the Holy Places – is one that seeks to find the broadest common denominator of all the worshippers. In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another. The special respect attendant to the Holy Places, and their character, require that worship at the Holy Places be conducted quietly and with decorum, without disputes, and in a manner that allows each person to serve his Maker without infringing the worship of his neighbor. There is no way to accomplish this other than by finding the common denominator of all the worshippers.

It was to this test of finding the broad common denominator that the late Kister J, referred in HCJ Ben Dov v. Minister of Religion IsrSC 22 (1) 440, which concerned a clash – in a particular Holy Place – between the members of one religious denomination and another:

… in the area under the jurisdiction of the State of Israel, there are places that are holy to the members of more than one religion, and the legislature wished to treat all religions equally, and protect the place that are holy to each and every religion. On the one hand, the legislature established the requirement of protection in order not to infringe the freedom of access of the members of the various denominations to their holy places, while on the other hand, it established a requirement of protection against desecration and any other harm, as well as to prevent offense to the feelings of the members of the religious communities in regard to those places. Each religion has its various rules and customs in regard to respect, conduct and even the conditions and restrictions upon entering their holy places, and it is not easy to fulfil them all while ensuring the freedom of access of the members of one religion, on the one hand, and respecting and not offending the feelings of some other religion, on the other hand (ibid., p. 448).

            Kister J. addressed this at greater length in the National Circles case, at pp. 180-181:

The freedom of access to pray does not grant a person the right to act in a manner that injures others or the existing arrangements in the place, and the police may prevent such injury. For example: A person who visits a Catholic church, whether or not he is Catholic, and acts in a manner that offends or angers, such as being dressed in a manner that is not appropriate for church, or covering his head when the accepted practice is to uncover one’s head, or who stands while others bow, and certainly talking during a service, or demonstrating derision, cannot complain if the police remove him from the place, and criminal charges may also be appropriate. This is not limited to a church, but applies to any other place that is holy to Christians, as well as to a procession or other ceremony. By the same token, a Christian may not enter a place reserved for priests, nor may a Moslem man enter a women’s mosque.

            And further on, at pp. 181-182:

It is only natural that when a particular site is deemed holy by the members of different faiths, problems and even disputes may arise in regard to the extent that the members of all those faiths may use the site for their ceremonies. Moreover, it may be that the conducting of a ceremony or the placing of religious symbols by the members of one religious denomination may offend the members of another denomination who may deem it as sacrilege (an extreme example in Jewish history was the erecting of a statue or altar of a pagan god in the Temple by Antiochus Epiphanes). In such a case, it may not be possible for the members of different religions to hold their ceremonies at that holy site, but only that the members of the religion whose ceremonies so offend pray as individuals, without any ceremony and without offending the others, and it is also possible that none of the religious groups will be able to conduct regular ceremonies if what one religion views as worship, another sees as sacrilege. Even if the differences are not so great, it would be hard to order the police to permit the members of each and every religion to conduct prayers or worship in the same place, as each saw fit, inasmuch as the matter might result in clashes and riots.

            In some Holy Places, a common denominator may be found among all the worshippers by maintaining the status quo. In such cases, maintaining the status quo is the appropriate path.

 

“Local Custom” and the Principle of maintaining the Status Quo

54.       Having arrived at this point, we will now employ these principles to examine the regulation promulgated by the Minister, the validity of which is disputed by the parties.

            As earlier stated, subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews states as follows:

            Prohibited Conduct

            2.        (a)                     In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:

            (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place [emphasis added – M.E.].

            This regulation expresses the principle of maintaining the status quo – “local custom” and the status quo are one and the same. In promulgating this regulation, the Minister of Religion did not exceed the authority granted to him by the legislature in the existing Protection of the Holy Places Law, as Shamgar P. explained in HCJ 337/81 Mitrani v. Minister of Transportation, IsrSC 37 (3) 337, 357-358:

The criterion for the validity of secondary legislation is always to be found in the words of the primary legislator. It sets out the boundaries for the actions of the secondary legislator by granting positive authority to carry out secondary acts in defined areas, and in the absence of such a conferral of authority by the primary legislator, the secondary legislator has nothing. The secondary legislator draws its power only from the conferral of authority in the parent law, which defines its permissible operating framework.

            In the matter before us, the secondary legislator acted within the operating framework delineated by the primary legislator. The Protection of the Holy Places Law establishes that the Holy Places – including, of course, the Western Wall – will be protected from desecration and any other violation and from anything likely to violate the feelings of the members of the different religions with regard to the places sacred to them (sec. 1 of the Law). The purpose of the regulation is to realize this law – to prevent the desecration of the Western Wall and violation of the feelings of the worshippers there in regard to the Wall.

55.       There was more than enough evidence before the Minister of Religion that prayer conducted in the manner of the Petitioners – prayer that, as we explained, violates “local custom” – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall. That evidence was presented in great detail at the beginning of our opinion, in the description of the factual background of the petitions (see paras. 4-11).

            The described events create a sufficient evidentiary basis to ground the need for promulgating subsection (1a) of the Regulations in order to prevent desecration of the Western Wall. “… the phrase ‘protected from desecration’ means ‘protection of respect …’” (HCJ 223/67 Ben Dov v. Minister of Religion, at p. 447, per Sussman D.P.). The events that occurred in the Western Wall Plaza when the Petitioners began to pray in accordance with their custom – that is, while wearing tallitot, reading from the Torah, and singing aloud in prayer – demonstrate the severe violation of the respect due to the Wall, and of the desecration. Women sitting and women lying on the Western Wall Plaza, women removed from the Plaza, worshippers throwing mud and dirt, chairs, tables and rocks at one another, and worst of all, the use of tear gas canisters – all intolerable sights at this Holy Place.  And all of this took place in the sight of the media who “happened” to be there. The events that occurred when the Petitioners in HCJ 257/89 attempted to realize their right to pray in the prayer area of the Western Wall Plaza inform us of what may be expected if the Petitioners in HCJ 2410/90 try to pray in that place. It should be noted to the credit of the Petitioners in HCJ 2410/90 that when they were told that their praying at the Wall while wearing tallitot and reading from the Torah would violate local custom and the feelings of the other worshippers, they refrained from conducting their prayers (see para. 11, above), as opposed to the Petitioners in HCJ 257/89 whose conduct precipitated severe, bitter disturbances, while they laid themselves out on the Western Wall Plaza, and so forth, with no thought for the desecration of the Holy Place.

56.       The Petitioners argue that “if the police fear the violence of a hostile crowd against the women worshippers, then it must act against that violence and not against the women worshippers” (sec. 13 (a) of the amended petition in HCJ 257/89). It has already been held in this regard that:

… if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety (HCJ 292/83, above, p. 455, per Barak J.) [emphasis added – M.E.].

            In the Holy Places, the reasonableness of police action is not evaluated exclusively on the basis of “the means at its [the police] disposal” (ibid., p. 456), but also with regard for the special character of the Holy Place. The sight of dozens of baton-wielding police standing in the city center is not comparable to the sight of dozens of police in a Holy Place. The very presence of those police in a Holy Place can lead to a desecration of the site.  Therefore, when ensuring someone’s freedom of worship may require that the police take such action as dispersing tear gas canisters, we must conclude that such action should not be required of the police in a Holy Place.

57.       Despite the said evidentiary grounds before the Minister of Religion, the Minister did not promulgate the regulation addressed by these petitions immediately following the described events, but first attempted to bring the parties to a peaceful compromise. The Minister was right to adopt that approach, inasmuch as the paths of peace, which are always appropriate, are particularly appropriate in regard to the Holy Places.

            The Minister of Religion was forced to promulgate the regulation to prevent desecration of the Western Wall only when it became clear that the dispute could not be resolved peacefully. An additional virtue of the regulation is that the “local custom” to which it refers is intended not only to prevent desecration of the Wall, but also expresses the broadest common denominator of all the worshippers at the site. As we explained in addressing the halakhic position, prayer in the manner conducted by the Petitioners comprises ceremonial elements that are not acceptable to the overwhelming majority of Jewish communities. The broadest common denominator of all the female worshippers in the Western Wall Plaza is in accordance with the form of worship that has been acceptable in the Western Wall Plaza for generations by the male and female worshippers who visit the site every day, every year, in all seasons, and even by the Petitioners. The common denominator for women praying at the Western Wall is to be found in the manner of prayer that is customary in the overwhelming majority of Jewish communities, which does not include women wearing tallitot and reading the Torah.

58.       In light of all the above, we conclude that the regulation promulgated by the Minister of Religion is valid. Promulgating the regulation was within the Minister’s authority, it was not intended to discriminate among worshippers, but was entirely compelled by the need to preserve the sanctity of the Western Wall. The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. In this regard, in another context, Shamgar P. wrote in HCJ 156/75 Daka v. Minister of Transportation, IsrSC 30 (2) 94, 103-105:

Not every decision that the Court sees as comprising some measure of unreasonableness is sufficient to invalidate a regulation. For the purpose of the matter before us, the unreasonableness must be extreme and not mere trivial unreasonableness.

                        …

… Here, too, we apply the important principle that the Court will not supplant its own discretion for the discretion of the authority that promulgated the regulation, and the fact that the Court might have established other, more flexible rules had the matter been given to its discretion and authority, does not itself justify invalidating a regulation …

                        ….

The Court will generally exercise great self-restraint in evaluating the validity of secondary legislation.

            And as Olshan P. explained in HCJ 57, 58/53 Tabak Haus v. Haifa Municipality, IsrSC 7 701, 707, the basic tendency of the Court is to validate secondary legislation, to the extent possible, and not to invalidate it.

            Further on in the Daka case (above), Shamgar P. added (at p. 106):

The reasonableness of a regulation cannot be deduced merely from its application in a single concrete case, without also addressing and weighing its general, legitimate purpose. Here, too, reasonableness is not an absolute concept but a relative one. Therefore, a situation may arise in which the weight to be granted to an injury to an individual that derives from the regulation may be reduced when considered in light of the policy that the regulation expresses, which is firmly grounded in the authorizing primary legislation.

            In the case before us, the reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize – a policy grounded in the Protection of the Holy Places Law – which is the protection of the Holy Place against desecration.

 

Consultation with the Chief Rabbis

59.       As stated, the Petitioners complained of the Minister of Religion’s consultation with the Chief Rabbis prior to promulgating the regulation. This claim is lacks any merit. Section 4 of the Protection of the Holy Places Law expressly states:

                                    The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation [emphasis added – M.E.].

            In the matter before us, the relevant representatives of the religions concerned are the Chief Rabbis:

Until now, no regulations have been promulgated in regard to the right of prayer on the Temple Mount for the relevant religious communities …

… and when the matter shall reach the Minister of Religion, he will be required to enquire as to the position of the heads of the Moslem religious community and the position of the Chief Rabbinate (the National Circles case, at p. 189) [emphasis added – M.E.].

            The Chief Rabbinate is the “highest halakhic authority in the State” (HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism, above, p. 682). That is all the more so after the enactment of the Chief Rabbinate of Israel Law, 5740-1980, the adoption of which:

Reinforced the status of the Chief Rabbinate as an official religious authority of the entire Jewish public, in accordance with the functions granted to the Council in sec. 2 of the Law (HCJ 47/82, at p. 693).

            The Minister of Religion was therefore required to consult with the Chief Rabbis before promulgating the said regulation.

 

“Local Custom” for Worship at the Western Wall

60.       The Petitioners raised various claims in regard to the differences in the liturgy between the Ashkenazic and Sephardic communities, and so forth, but these claims lack any merit and have nothing in common  with the subject of the petitions regarding a prayer service conducted by women wearing tallitot, reading the Torah, and so forth. Another strange claim raised by the Petitioners is:

Both the International Commission (for the Wailing Wall, 1930 – M.E.), and even the Shaw Commission Report on the Palestine Disturbances of August 1929 … make it clear that at that time there was no mehitza at the Wall, or any other furnishings other than a portable Torah ark that could be brought to the Wall on specified days (para. 64 of the summary pleadings, above).

            In this regard, the Petitioners in HCJ 2410/90 appended photographs from various periods, prior to 1948, from which it appears, as they state it, that: “There was not even a custom of separating Jewish male and female worshippers at the Wall” (para. 65 and appendices P/19-P/23 of the summary pleadings, above).

            It were better that these claims had not been raised at all. As we stated above:

Interreligious friction concerning the Western Wall continued throughout the 1920’s … The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began (HaEncyclopedia HaIvrit, vol. XX, pp. 1123-1124) [emphasis added – M.E.].

            How can one infer the lack of a “local custom” in regard to the separation of women and men from a situation that was forced upon the Jews by the decree of a foreign ruler? I am at a loss.

            The question before the Court is, therefore, whether it accords with the “local custom” at the Wall for women to pray while wrapped in tallitot or reading the Torah, and whether women pray there in the framework of a “minyan” and while raising their voices in song. The answer to this question is clear. It can be found in the affidavit of Rabbi Getz, according to which:

Women’s prayer in the manner requested by the Petitioners has never taken place in the Western Wall Plaza, not during all the years that I have served as Rabbi of the Wall since 1986 (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

            The Petitioners claimed that there was an event in which people prayed “in an identical or similar way” in a ceremony at the Wall (para. 18 (b) of the petition in HCJ 2410/90. Needless to say, that is insufficient to testify to the “local custom”, as Rabbi Getz testified:

If ever there was such an event in the Western Wall Plaza, as claimed in the petition, it was an exception that is neither evidence or instructive as to the rule (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

 

Conclusion

61.       It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result it extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It is would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities, as we have learned and seen in what we stated above (paras. 44, 48, 49). As stated above (para. 39), the substantive change in the status of women and their place in the current century, to which religiously observant women are full partners, may be eventually show its effects even in this complex, sensitive area of women’s prayer groups, as stated above. But the prayer area at the Western Wall is not the place for a “war” of deeds and opinions in this regard. At present, the reality is that the overwhelming majority of halakhic decisors and the Chief Rabbis of Israel are of the opinion that granting the petitions, even that in HCJ 2410/90, would constitute a desecration of the prayer area at the Western Wall, which is the one and only place in all the Jewish world, divided in opinions and customs, where free access is guaranteed to every Jew, man and women, regardless of who they are. The Western Wall is a spiritual and real, special and unique asset that unites all the Jewish People, and we are obligated to protect it against every challenge. That objective can be achieved by finding the common denominator of all the Jewish People, whoever they may be, who come to pour out their hearts before their Creator in the prayer area at the Western Wall. That objective will be achieved only if we strictly observe what is set out in regulation 2 (a) (1a) that was promulgated by the Minister of Religion, in consultation with the Chief Rabbis, and with the approval of the Minister of Justice, which prohibits “Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place”. In light of all the above, this regulation, promulgated by the Minister of Religion under the authority granted him by the legislature, is reasonable and even necessary, and is not tainted by any extraneous consideration that might invalidate it. Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place. An important principle of this Court is that we do not intervene in secondary legislation except when it suffers from extreme unreasonableness or is tainted by extraneous considerations. That is not the case here. The purpose of the regulation is to find the common denominator in order to facilitate the prayers of every Jew, whomever he may be, in the place that is holiest to the Jewish People, while preventing severe, violent dispute in this one unique place that unites the Jewish People. That is a good objective. It is reasonable and desirable in accordance with the facts and circumstances that we presented above.

            Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Jewry’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to.

62.       Along the way, we addressed the concept of “true judgement that is according to the truth”, which the Sages deemed a proper and desirable objective for which a judge should strive in rendering judgment (paras. 37 and 38; and see my book,  Jewish Law – History, Sources, Principles above, pp. 226-232, 1075, and elsewhere). We addressed two interpretations of this concept, and it would seem fitting to conclude this discussion with an additional interpretation that was given to the task of a judge in making “true judgment that is according to the truth”. This interpretation is that of Rabbi Joshua Falk Katz, one of the greatest and earliest commentators of the Tur and the Shulhan Arukh, in seventeenth-century Poland, who wrote (Drisha, Tur, HM 1(b)):

Their intention in saying “true judgement that is according to the truth” means to say that one judges in accordance with the place and time of the matter so that it be according to the truth, with the exception of not always actually judging in accordance with actual Torah law. Because sometimes the judge must rule beyond the letter of the law in accordance with the time and the matter, and when he does not do so, even though he renders true judgment, it is not according to the truth. As the Sages said: Jerusalem was only destroyed because they based their decisions only upon Torah law and they did not go beyond the letter of the law. And concerning that it is said: You must not deviate from verdict that they announce to you either to the right or to the left, on which the Sages said: Even if they say to you that right is left, etc., and all the more so if they say the right is right, etc.

            When treating of a subject as sensitive and central to the world of halakha, in the place that is holiest in the Jewish world and Israel in the generations following the destruction of the Temple, it is only right and fitting that we act beyond the letter of the law, in accordance with the common denominator of all Jews, whomever they may be, so that all can go to the Western Wall at any time or hour to pour out their hearts before their Maker, for the peace and unity of Jerusalem their capitol. In that, we will have rendered true judgment that is according to the truth.

            I therefore recommend to my colleagues that the petitions be dismissed.

            In order to bring the parties to the observance of the law and what is beyond the letter of the law, I recommend that we do not impose costs.

63.       I have read the opinion of Justice S. Levin, and I see no need to add to my clearly detailed opinion. I will, however, address my colleague’s conclusion, that:

A total ban upon conducting worship services at the site of the Wall should not be imposed merely because there are groups that oppose them, and considerations of certain and proximate danger of disturbance of the peace need not necessarily justify imposing such a ban. Rather, it is the duty of the relevant authorities to see to the appropriate conditions in order to strike a balance among all the relevant interests, in order that all who seek to congregate at the Wall and its plaza can fully exercise their rights without overly offending the sensitivities of others.

            Accordingly, he is of the opinion that the petitions should be granted.

            This is an absolutely new approach in the case law of this Court, and it stands in utter contradiction to a long line of decisions since the National Circles case. This decision concerns the holiest place in the Jewish world on the eastern side of the Wall, that is, the Temple Mount, upon which the First and Second Temples stood, and which housed the Holy of Holies (see in detail: HCJ 4185/90, pp. 228-247), and the holiness of the Western Wall derives from its being “the last remnant of our Temple”. In all of those decisions, without exception, it was held, on the one hand, that the right of members of the Jewish People to pray on the Temple Mount is undisputable and eternal, it exists from time immemorial and will continue for all the future, and other such superlatives. However, on the other hand, in order to preserve public order and prevent a proximate threat of disturbances and rioting, Jews were prevented from praying on the Temple Mount. Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount. The extent of this approach can be seen in a decision issued by this Court some eight months ago, on April 4, 1993, in which we addressed, inter alia, the petition of a Jew who wished to enter upon the Temple Mount “while wearing tefillin and a tallit or carrying holy ashes …” (HCJ 67/93 “Kach” Movement v. Minister of Religious Affairs, IsrSC 47 (2) 1, 3). The petition was denied. The reasons for the decision (per Goldberg J., Barak and Mazza JJ. concurring) stated, inter alia (at pp. 5-6):

It would not be superfluous to point out that the position of the State Attorney’s Office in the aforesaid HCJ 99/76 was … that: ‘The Petitioner’s right of access to the Temple Mount is a fundamental right, established by law, and is not and never was disputed. We may even assume that no one will bother to enquire if, in the course of visiting this exalted place, he chooses to speak quietly with his Maker. But if what he desires is a demonstrative display of prayer … the matter is different.

This would appear to be consistent with the claim of the Petitioners. If their right of access to the Temple Mount is a fundamental right that is not infringed even if, while realizing it, the visitor silently speaks with his Maker, then why should silent prayer be prevented simply because the Petitioner has a prayer book or other holy text in his possession, or is wearing tefillin or a tallit? However, in the opinion of the police, there is a real fear that such an act would be interpreted as a provocation, and would lead to a disturbance of public order that might even result in bloodshed …

The question is, do we have the ability to decide that the fear raised by the police is groundless, and that its considerations are unfounded to the point that we will intervene? I believe that the answer is self-evident in view of the exceptional sensitivity of the place, which is unparalleled in any other place in the country. Therefore, even if we understand the desire of a visitor who innocently wishes to pray privately while carrying religious paraphernalia, we cannot, at this time, deem the positon of the police to be flawed in terms of its reasonableness.

            And here one may ask: How is it possible that a single, solitary Jew cannot ascend to the Temple Mount (and we are concerned with those parts of the Temple Mount to which entrance is permissible in the opinion of many great halakhic scholars – see in detail HCJ 4185/90, at pp. 259-268) while wearing a tallit or holding a prayer book in his hand, when such an absolute prohibition of freedom of worship is justified by this Court by reason of the existence of a threat to public order and rioting, while as opposed to this, prohibiting prayer by women wearing tallitot and reading the Torah, which involves only a certain concession in the religious ceremony, and other than that they are free to pray as they wish at the Wall, and while there is no doubt that this has always been the local custom, and where there is a nearly certain danger of riots, disputes and tear gas canisters – as occurred in the past – nevertheless, such a change should be permitted in order to prevent an infringement of freedom of worship! How is the Temple Mount on the east of the Wall different from the prayer plaza on the west of the Wall, both of which are Holy Places? According to the decisions of this Court, any Jew, even one individual, is prohibited from praying on the Temple Mount, and that is consistent with the principle of freedom of worship, but prohibiting the inclusion of a single element in the prayer service, one that was never customary at the Wall and to which the overwhelming majority of worshippers there are extremely opposed, such a prohibition constitutes an infringement of freedom of worship? Therefore, it is fitting and proper that, in order to prevent discrimination, a commission be appointed, as my colleague the President proposes, and that when the Court is called upon to address this subject again, it will consider the subject of freedom of worship in its entirety, on both sides of the Western Wall. As I stated above, the petitions should be dismissed.

 

President M. Shamgar:

1.         These petitions focus, in theory and practice, upon the interpretation and meaning of sec. 3 of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law and its regulations.

            These statutes express the State’s concern in preventing the desecration and any other violation of the Holy Places. At the same time, the said provisions establish that the Holy Places will be protected against anything that might violate the freedom of access of the members of the various religious communities to their Holy Places or their feelings in regard to those places.

            This provides statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions.

2.         The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering   and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it.

            The importance of preserving it – its exalted, esteemed status and the unifying, fortifying power it radiates to all parts of the nation in Israel and in the Diaspora – increased and was reinforced due to the temporary restrictions imposed, in practice, by the governments of Israel upon the freedom of access of Jews to the Temple Mount.

            In light of the status of the Western Wall in the public mind, one can understand the concern and diligence in regard to the following two objectives: maintaining freedom of access to the Wall, and upholding the obligation to preserve respect for the place and all its visitors. Expression was already given to these different objectives in the law enacted in 1967: In speaking of desecration – against which the Holy Place must be protected – the legislature was referring to harmful acts that by their nature or consequences violate the holiness of the site. At the same time, it established that freedom of access must be ensured to anyone who regards the place as sacred, and infringement of that free access must be prevented. The law further instructs that violation of the feelings of the members of the religious community that regard the place as sacred be prevented (and see sec. 2 (b) of the above law[10]). Understandably, these primary objectives are not necessarily compatible in all possible circumstances, and when a conflict arises, an appropriate path must be found to balance these objectives in order to ensure that the fundamental purpose is not infringed.

            It is therefore sad when a Holy Place become a scene of verbal or physical dispute, and when people conduct themselves there in a manner that does not show respect for the place and its visitors. We should be mindful that it is difficult to preserve the honor of a Holy Place if we do not also respect the honor of those who visit it.

            Therefore, we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion in CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, IsrSC 46(2) 464, that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

            However, we must bear in mind that tolerance and patience are not unidirectional norms, but rather they are peripheral and multidirectional. An enlightened society also respects the beliefs and opinions of those who fiercely hold them and identify with them in a manner that is not necessarily the manner of the average person. Understanding others is more important than self-understanding. With all due regard for the aphorism “know thyself”, borrowed from another cultural tradition, it cannot replace adopting the principle of tolerance as expressed in the great rule: “what is hateful to you, do not do to your fellow”. Tolerance is not a slogan for acquiring rights, but a standard for granting rights to others. Ultimately, tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

3.         The halakhic and historical analysis in the opinion of my colleague Deputy President (Emeritus) Elon is impressive and tremendously informative.

            My honorable colleague’s call to find a common denominator for all Jews, whomever they may be, is also worthy of respect. But in my view, the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount.

            I also concur with my colleague’s conclusion that, in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots. On the other hand, I am not convinced that the Respondents are not exaggerating the conflicts and differences. Thus, for example, anger was expressed in regard to the Petitioners’ singing, despite the fact that they were singing prayers. Besides, is there any prohibition upon singing at the Wall? After all, people often sing and dance there, and it is unthinkable to prevent the singing of visitors, Israelis or foreigners, soldiers or citizens that is conducted with decorum. Therefore, it is possible, and I emphasize the term “possible”, that the objectors’ opposition to the identity of the singers has led to an opposition to singing itself, which is inappropriate.

            In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

            If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

            Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

 

Justice S. Levin:

            I concur in the opinion of my colleague the Deputy President with regard to the jurisdiction of this Court to address the subject of the petition, but I do not see eye-to-eye with him with regard to most of his reasoning or with the operative result for the petitions. I will briefly explain my view of the subject:

A.        In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

B.        Unquestionably, the Western Wall (and its plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

C.        The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

D.        What I have said up to now does not mean that limitations cannot be placed upon certain types of conduct at the Western Wall site. Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

E.         The result of all the above is that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its plaza may fully realize their rights without unnecessarily violating the feelings of others.

F.         I concur with my honorable colleague President Shamgar that regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Law, but in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            Four years have passed since the events that led to the filing of the petitions before us, and that period is long enough for the Petitioners and the Respondents to reexamine their concrete positions in accordance with the guidelines set out above. In light of the long period that has passed since the above events, it is no longer appropriate to decide at present whether or not the conduct of any of the Petitioners was in good faith at the time.

            Under these circumstances, I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide. In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

            Like the Deputy President, I too would not make an order for costs.

 

            Decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge.

 

Given this 14^th day of Shevat 5754 (Jan. 26, 1994).