Constitutional Law

            HCJ 265/68

 

ASSOCIATION OF ENGINEERS AND ARCHITECTS IN ISRAEL

 AND EIGHT OTHERS

v.

MINISTER OF LABOUR

 

 

The Supreme Court sitting as the High Court of Justice

 

Before Sussman J., Manny J. and Kister J.

 

 

Editor's synopsis -

                The Engineers and Architects Law, 1958, established a procedure for the registration of engineers and architects. It also provided that the Minister of Labour may frame regulations, after consulting with the Council of Engineering and Architecture, reserving certain activities to registered engineers and architects, which would have the effect of forbidding others with less training and experience from engaging in such activities. The Minister published such regulations, after due consultation, but postponed the date of their implementation several times. The Petitioners complain that such delay of the implementation of the regulations is unlawful.

           

                The court issued an order nisi, directing the Minister to show cause why the court should not order him to confer upon each of the individual Petitioners the licenses respectively requested by them to practice as a registered engineer or architect, and further to show cause why it should not declare that the regulations took effect on a certain date, or in the alternative, why it should not order the Minister to annul the amendment to the regulations promulgated by him by which the effective date of the regulations was postponed, or in the alternative, why it should not order the Minister to implement the regulations immediately. The Minister appeared in opposition to the order nisi. .

               

                The court ordered that the rule nisi be made absolute, holding:

           

1.      The word "may" when used by the legislature, prima facie vests a power or discretion, yet sometimes, coupled with the power, there is a duty to act in accordance with the power.

 

2.      Registration under this Law is merely preliminary to the receipt of a license to practice engineering or architecture, and the legislature has directed that a license not be issued on the basis of registration alone but also of practical experience. The licensing of engineers and architects makes no sense unless accompanied by regulations that specify the professional work which may be done only by those so licensed. The Minister is obliged to complete the work of the primary legislation by framing regulations which reserve certain operations to engineers and architects.

 

3.      Pursuant to section 12 of the Law, the making of regulations for reserving operations is conditioned upon prior consultation by the Minister with the Council of Engineering and Architecture. Subordinate legislation promulgated without such consultation, when required by law, is void. Section 16 of the Interpretation Ordinance provides that a power granted by law may be exercised repeatedly, upon the same conditions. In this case, the last of the series of amendments to the regulations issued by the Minister, postponing their date of implementation, was promulgated without consultation with the Council. This amendment, which purports to postpone the effective date of their regulations, is therefore void, and the regulations took effect.

 

4.      When delay in the coming into force of an arrangement prescribed by the legislature becomes an instrument for preventing that arrangement from being implemented, the Minister is bound to act pursuant to the Law and to take the necessary steps to effect its implementation.

 

Israel cases referred to:

[1]     H.C. 384/66, Josef Fuchsman v. Supervisor of Transportation (1967) 21 P.D.(2)221.

           

English cases referred to:

[2]     Julius v. Lord Bishop of Oxford (1980) A. C. 214; 42 L. T. 546; 49 L.J. Q.B. 577 (H.L.).

[3]     Rollo and Another v. Minister of Town and Country Planning (1948), 1 All E.R.13; 64 T.L.R. 25; (1948) L.J.R. 817.

           

A. Ben-Porat for the Petitioners.

Y. Barsela, Deputy State Attorney, for Respondent.

 

 

JUDGMENT

 

            SUSSMAN J.: In 1958 the Engineers and Architects Law, 1958, was enacted. Section 2 of the Law provides that no person shall bear the title "Registered Engineer" or "Registered Architect" unless he is registered in the Register of Engineers and Architects pursuant to section 8 of the Law. The qualifications to be complied with for registration are fixed in section 9 of the Law. The duty to register prevents a person who is not registered from carrying the title of Registered Engineer or Architect; section 2 does not prevent a person who is not registered from doing engineering or architectural work. This Law does not provide (as the Chamber of Advocates Law, 1961, section 20, provides in relation to Advocates), that engineering or architectural operations shall only be carried out by persons entered in the Register. Nevertheless we do find in the above Law, additional provisions outlining the method for designating the operations of architects and engineers. By virtue of section 3 of that Law, the Council of Engineering and Architecture, consisting of 27 members, was established. The chairman of the Council is that Minister on whom the Government has conferred authority to implement the Law, i.e., the Minister of Labour, the present Respondent. The other members of the Council are:

           

 a.        four representatives of the Technion;

b.       thirteen representatives of the Government, appointed by the Government, among them engineers and architects;

c.       nine representatives of the Association of Engineers and Architects, appointed by the Minister upon the recommendation of the Association.

           

            Section 12 of the Law provides as follows:

           

The Minister may, by regulations, after consultation with the Council, reserve the right to carry out specified operations to licensed engineers and architects; where the right to carry out any operation has been so reserved, no person shall carry out such operation unless he is the holder of a license under section 11.

 

            The license under section 11 referred to in section 12, is issued, pursuant to the provisions of section 11, to any person whose name is entered in the Register and who has worked in the branch of his profession for a specified period which shall be not less than one year and shall not exceed three years. The holder of the license, and he alone, is entitled, pursuant to section 11(c) of the Law, to bear the title, "Licensed Engineer" or "Licensed Architect". When a registered engineer (or architect) attains the standing of a licensed engineer (or architect), and the Minister, after consultation with the Council, has reserved the right to carry out specified operations, such licensed engineer or architect is given the exclusive right to carry out the operations reserved for the member of his profession. Performance by another person of a reserved operation constitutes an offence punishable as set forth in section 14(a) of the Law.

           

            2. The Council specified in section 3 of the Law was established, and at its meeting of December 22, 1966, the Respondent brought before it a draft set of regulations for reserving of operations, prepared by the Ministry of Labour. A representative of the Respondent explained to the meeting that

           

the time had come to implement the second stage (of the Law), namely, the reserving of operations, and licensing.

 

            A discussion followed concerning methods of reserving operations, and a committee was appointed to complete the task. The Council resolved

           

to publish the regulations in another two months, even if, during that time, the committee does not complete its work.

 

            The aforementioned regulations were drawn up by the Respondent and entitled the Engineers and Architects (Licensing and Reserving of Operations) Regulations 1967. They were published in K.H. No. 2042, on May 19, 1967. In regulation 3 we find the reservation of the right to carry out operations, and the date of the coming into force of the regulations, August 1, 1967, was prescribed in regulation 5. In the introduction to the regulations the Respondent declared that he had fulfilled the duty of consultation with the Council. However, despite regulation 5, these regulations have not been implemented to this day. The reason is that on no less than five occasions the Respondent saw fit to delay implementing them by substituting another regulation for regulation 5 and each time he fixed another date. It would serve no purpose to cite all the substituted regulations; they were published in K.H. Nos. 2081, 2126, 2162, 2249 and 2270.

 

            3. Petitioners are the Association of Engineers and Architects in Israel (Petitioner No. 1) whose representatives serve as members of the Council, pursuant to section 3(4) of the Law, and eight other engineers and architects. They complain that Petitioners Nos. 2-9 have not been granted a license in accordance with section 11, and they claim that the commencement of the aforementioned regulations was delayed contrary to law.

           

            Once operations are reserved for a licensed engineer or architect, the legislature has directed, under section 12 of the Law, that a person who is not so licensed shall not carry out any of those operations. From the circular letter distributed by the Respondent to members of the Council in June 1968 (Exhibit B/2), we learn that the introduction of licensing regulations

           

            aroused a sharp reaction from the Federation of Technicians and Works Engineers which claimed that the regulations would seriously prejudice the livelihood of a large group of technicians and engineers.

           

            Indeed, the interest of the technicians in the matter of reserving engineering operations was first aroused even before the regulations were drafted. When he brought the bill before the Knesset for its second and third readings, on March 24, 1958, the Chairman of the Labour Committee said (D.H. vol. 24, p. 1509) that the Committee had opened

           

            (the) doors wide ... before scientific and public bodies ... saying, all who so wish may come and voice their objections.

           

            The Chairman mentioned the Federation of Technicians among those whose views were heard. It follows that there is no basis for the inference that the interest of the technicians in the designation of operations reserved for engineers had escaped the notice of those who initiated the Law. Rather, it may be assumed that as progress was made with the implementation of the Law, so the pressure applied by the technicians upon the Respondent increased: Exhibit B/2 testifies to their "sharp" reaction.

           

            4. Whatever be the case, the Respondent, faced with the technicians' stand, decided to delay implementing the regulations until July 1, 1968. That was the third postponement. In the meantime the Ministry of Labour appointed a Commission to examine

           

whether, and to what extent there is room for amending the regulations in order to prevent possible injury to professional persons at the technical level.

 

            That Commission held fourteen sessions and heard, among others, representatives of the Federation of Technicians and Works Engineers. In a Report submitted on June 14, 1969 (Exhibit B/3), the Commission approved of "the existence of regulations for the reserving of operations," saying that undoubtedly, without such regulations, "the Law would be emptied of content". The Commission was also aware of the fact that

           

during the period of transition, the implementing of the regulation concerning the reservation of operations was likely to result in injury to a limited number of technicians at the works engineers level, but the committee is of the opinion that the publication of the regulations should not be linked to the question of injury or non-injury to any sector of the working community.

 

            On the other hand, the Commission recommended certain changes in the regulations and the speedy enactment of the Works Engineers and Technicians Law.

           

            On June 24, 1968, the report of that Commission, called after its Chairman, the Dror Commission, was brought by the Respondent before the Council. At the same session the Respondent said that "at the time he felt that the subject of the technicians had not received appropriate consideration" and he added that the Technicians Bill was before the Government. In the same vein the Director-General of the Ministry of Labour followed with a review of the Report of the Dror Commission, saying that the Commission had been established

           

not for the purpose of examining the question of the reserving of operations, which is within the exclusive jurisdiction of this Council, but rather principally to examine the question to what extent those regulations were likely to injure the technicians.

 

            He suggested advising the Respondent to postpone bringing the regulations into force "for another few months". Mr. Dror also spoke at the session of the Council and explained, inter alia, that the reserving of operations pursuant to the regulations

           

neither deprives works engineers or technicians of a living nor does it prejudice their source of livelihood...The reserving of operations can prevent technicians and works engineers from taking responsibility upon themselves, but it cannot prevent them from working in their profession. The regulations may indeed prejudice the status of works engineers and technicians, but there is no question here of depriving them of the means of a livelihood.

 

            After the session of the Council the Respondent met a representative of the first Petitioner and a representative of the Federation of Works Engineers and reached the decision which he made known to the Petitioner in his letter of July 2, 1968, and to the works engineers the following day. His decision was to postpone implementing the regulations until August 15, 1968, in order to examine the objections of the works engineers to the Dror Commission Report. Yet the Respondent was persuaded - so he says - that the dates for implementing the reserving of operations for engineers and architects should not be bound up with the completion of preparations for the reserving of operations for technicians and works engineers. "Therefore I have decided not to link the two dates together."

           

            5. Regulation 5 was changed in order to postpone the commencement of the regulations until August 15, 1968, but they did not come into force even on that day. Instead, the Respondent brought the matter before the Government, and on August 13, 1968, the Director-General of the Ministry of Labour gave Petitioner No. 1 the following twofold notice:

           

At the meeting of the Government on August 11, 1968, the following resolution was adopted:

(a) to postpone the commencement of the regulations ... until March 31, 1969;

(b) to authorize the Minister of Labour to appoint a Commission, headed by a judge, among whose functions will be to examine the regulations and advise upon changes, if and to the extent it sees fit, with respect to operations which should be reserved solely for engineers and architects.

 

            The first Petitioner regarded that resolution as a circumvention of the Law and informed the Respondent that it would not send representatives to the Commission. The Respondent replied on September 2, 1968, saying:

           

I will have no choice but to transfer the question of the Engineers and Architects (Licensing and the Reserving of Operations) regulations to the Knesset for its decision.

 

          Faced with the Petitioner's refusal, the Commission was not constituted. Nor did the Respondent transfer the matter to the Knesset for its decision. All that was done was to postpone the commencement of the regulations until April 1,1969.

         

          Clearly, had the Respondent thought it necessary to amend the Law as originally enacted, he should have brought a bill before the Knesset. Otherwise, it is difficult to understand how the Knesset could have been of any assistance to him in performing the function imposed upon him by section 12 of the Law. Indeed, in paragraph 7(b) of the replying affidavit, the Respondent explains that his intention was not that the Knesset should amend the Law but rather that the subject should be clarified by the Knesset Labour Committee. But even that was not done. When we asked the Deputy State Attorney who, to the best of his ability, defended before us a position which was indefensible, what had happened to the Respondent's appeal to the Labour Committee, he directed us to the Committee's letter of August 8, 1969. That letter, however, does not contain any evidence of an appeal by the Respondent to the Labour Committee, but rather of an appeal by the Federation of Technicians and Works Engineers, and it ends with a recommendation to postpone implementation of the regulations

         

          for an appropriate period to afford an opportunity to examine the matter further.

         

          Given the fact that the subject had already been examined by the Dror Commission and that it had also become clear to the Respondent that the date for the reserving of operations should not be tied to a similar arrangement in relation to the technicians, what would be the appropriate period required for further investigation? From the replies of the Deputy State Attorney, it appears that not only is the period until March 31, 1969, insufficient, but that the Respondent is unwilling to specify any date whatsoever on which the arrangement will come into force, whether in its present form or in any other form as might be prescribed in other regulations. It should be remembered, that if the regulations are not satisfactory and require amendment, as the Dror Commission also pointed out, nothing prevents the Respondent, after consultation with the Council, from framing other regulations, by virtue of section 12 of the Law. The Report of the Dror Commission prima facie supports the Petitioners' argument that, from a technical and professional point of view, it would not be difficult to reserve the operations in the appropriate manner and to designate which operations require the knowledge and expertise of an engineer. If, in spite of Mr. Dror's finding that the present regulations do not deprive technicians of their livelihood, the Respondent does not specify a definite date when this replacement of regulation 5 will come to an end, it is no wonder that the Petitioners claim that the Respondent has decided not to decide anything. In other words, the object of the Law - the reserving of operations for a licensed engineer and a licensed architect - will not be achieved.

 

            6. The Deputy State Attorney argues that the power given to the Respondent under section 12 of the Law, is a power which is not coupled with a duty. At his will the Respondent may exercise the power and at his will, he may refrain from doing so. We are not inclined to accept this argument. True, when the word "may" appears in legislation, its simple meaning is that prima facie it vests a power or discretion, yet it also empowers the person holding the authority to do something and sometimes, coupled with the power is the duty to act in accordance with its terms: see Julius v. Lord Bishop of Oxford (1880) [2]. The Deputy State Attorney emphasizes that the subject of the registration of engineers was dealt with in the Law itself, in section 9, and that is the principal concern. He points out that whereas in other Laws, such as the Chamber of Advocates Law, the Knesset itself specified the reserved operations of the profession, the reservation in the present case it left to the Minister. Yet that fact does not prove that the designation of those operations which require the expertise of an engineer is on a lower level or a matter of minor importance. The opposite would appear to be true. The matter acquires greater importance because the Respondent must supplement the Law with what it lacks before it can be implemented.

           

            When on May 21, 1956, the Minister of Labour introduced the bill for its first reading at the 129th session of the Knesset (D.H. Vol. XI, at p. 1790) she emphasized that the work of architects and engineers lacks governmental supervision, remarking as follows:

           

            Not once only have our eyes seen the results of this situation, and more than once have we paid the price for the absence of regulation in these areas, in human casualties and in the loss of property.

           

            Registration under section 9 of the Law is merely preliminary to the receipt of a license, and the legislature has directed that a license shall not be issued solely on the basis of registration but depend also on the practical experience of the person registered, as provided in section 11 of the Law. In her above mentioned opening remarks, the Minister of Labour also hinted at this. Licensing makes no sense without the designation of those operations that a person not so licensed is not entitled to do. Section 11 and section 12 of the Law are interrelated one with the other, and should not be separated. By leaving to the Minister the task of the reserving of operations, the Knesset sought to achieve two objectives:

              

1.    to make the reserving of operations conditional upon previous consultation with the Council, a process difficult for the members of the Knesset to undertake;

 

2.     reservation of operations by way of subordinate legislation makes it easier to introduce changes when necessary and relieve the Government of the need to turn to the Knesset every time it has to change the designated operations.

 

            But the legislative purpose of which the Minister of Labour spoke cannot be achieved by registration alone. Reasons dictates, therefore, that what the Knesset has left to the subordinate legislator must, of necessity, be done by that body so as not to leave a lacuna in the Law and in order to complete the work of primary legislation.

           

            7. However in point of fact, we are relieved of the need to decide whether the power given to the Respondent by section 12 requires him to exercise it. The Respondent framed the regulations, reserved certain operations and later even made a declaration on the necessity of so doing, as has already been explained. Thus he revealed his own view that it was fitting for him to exercise his power of delegated legislation and the question whether he was bound to do so or not, is not before us. Should the Respondent change his mind and no longer wish to designate which operations should be reserved, nothing prevents him from annulling the regulations after holding further consultation with the Council, as specified in section 12. So far he has not done so.

           

            The question remains whether it was lawful to amend regulation 5 of the original regulations from time to time. Under section 16(1) of the Interpretation Ordinance, where a law confers on an authority power to make regulations

           

            (1) a regulation may at any time be amended, varied, suspended or revoked by the same authority and in the same manner by and in which it was made.

           

            Under section 12 of the Law, the making of regulations for the purpose of reserving operations is conditional on prior consultation with the Council, and under section 16 of the Interpretation Ordinance, so is their revocation and amendment. Where a Law authorizes an authority to enact legislation after prior consultation with a given person and that authority does not fulfill the duty of consultation, the delegated legislation is void: H.C. 384/66[1]. The duty of consultation is a restraint upon the legislative power of the subordinate legislator and a person who legislates without consultation exceeds his authority.

           

            8. The Respondent consulted with the Council before making the original regulations and again, before postponing until August 15, 1968 - for the fourth time - their coming into force. He did not, however, consult with the Council before the fifth postponement, made for the purpose of framing The Engineers and Architects (Licensing and Reserving of Operations) (Amendment No. 4) Regulations, 1968. In those amending regulations the implementation of the principal regulations was postponed until April 1, 1969. But since they were amended without consultation the amendment is void in law. It follows that regulation 5 remains in the form prescribed in K.H. No. 2249, and the reservation of operations came into effect on August 15, 1968.

           

            Counsel for the Respondent submitted before us two arguments in support of his claim that the Respondent was exempt from consulting with the Council before instituting the aforementioned amending regulations. He contended first, that the Respondent was not obliged to consult with the Council upon postponing the coming into force of the regulations but only upon the modes of reserving operations. We do not agree with this argument. From the minutes of the two sessions of the Council that we have mentioned, it is clear that the Council was requested to advise the Minister not only upon the methods of reserving to the profession the appropriate operations, but also to express its opinion about the date until which the regulations - and therefore in fact, the implementation of the Law - could be postponed. At the session of the Council held on December 22, 1966, Mr. Bassin, the Engineers Registrar, said:

           

Only the setting in motion of the licensing system as soon as possible can bring real order into the engineering and architectural professions in Israel.

 

            And at the second session held on June 24, 1968 (which preceded the postponement of the regulations from July 1, 1968 until August 15, 1968), the Director-General of the Ministry of Labour who was in the chair, expressed the opinion that "the matter should be delayed for another few months" in order to examine the recommendations of the Dror Commission and the objections of the technicians. Were this a question of merely a short delay it is possible that we would not regard so strictly fulfillment of the duty of consultation. But since the commencement of the regulations has already been postponed no fewer than five times, and counsel for the Respondent informs us that when the next appointed date is reached there will be another postponement - and so it will go on, since he is unable to specify a final date - the technique of postponement has, in effect, become an instrument for preventing the designation of operations. Originally, the Respondent resolved to designate which operations would require the employment of a licensed professional. When he continues to postpone the arrangement from one date to another - in fact, indefinitely - it is as if he has withdrawn from such designation and now permits anyone who so desires, to work in the profession. To do that he must proceed in accordance with section 16 of the Interpretation Ordinance.

 

            The second argument of Respondent's counsel was that the consultation held by the Respondent with the Council at its session on June 24, 1968 "covers", as it were, any additional postponement and not only that which followed this consultation. This argument, too, cannot be supported. We have seen that the said consultation induced the Respondent to delay implementing the regulations only until August 15, 1968, and he expressed his opinion that after that date they should be implemented "without delay". That consultation covered nothing more. If, after that date, other material came before the Respondent, or if he saw the facts which had already been considered in another light, he should have brought his thoughts before the Council and heard its advice. The decision is his, yet, as Lord Greene said in Rollo v. Minister of Town Planning ([3] at p. 16), he is not entitled to say: "I will not listen to any proposal that you might make!".

           

            In that case, the Minister was obliged to consult with the local authority and in that context Bucknill J. clarified (at p. 17, ibid. ) the meaning of consultation. The relevant passage is cited by Halevi J., in H.C.384/66[1]:

           

            ... on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the authority to tender that advice.

 

            Needless to say, even if the Minister is not obliged to accept such advice he must listen to it "with a receptive mind". If no consultation is held the Council does not know what caused the change in the Respondent's attitude after the session of June 24, 1968, and he, the Respondent, does not know how they regard those considerations which guided him.

           

            9. In the present case, in view of the eminent status of the Council the duty of consultation takes on additional importance. The Government has a clear majority on the Council; out of twenty-seven members, fourteen are representatives of the Government. This was intentional and the Chairman of the Labour Committee explained that intention in the following words (D.H. vol. XXIV, at p. 1510).

           

In order to impose upon the Government - and that was our principal object - the responsibility for implementing the Law, a parliamentary responsibility, and in order to enable us to hold it to its responsibility for upholding the Law, we safeguarded, in the bill which we are bringing before you, a majority to the Government representatives.

 

            The importance of the views of such a body set up for this purpose cannot be underestimated.

           

            Accordingly, we make absolute the order nisi and declare that the Engineers and Architects (Licensing and Reserving of Operations) (Amendment No. 4) Regulations, 1968, are invalid. The Respondent shall examine the requests of Petitioners Numbers 2-9 and shall issue each of them a license, after it is proved that they have fulfilled the conditions prescribed in the Law.

           

            The Respondent shall pay the Petitioners' costs which shall include counsel's fees in the sum of IL.500.

           

            Order nisi made absolute.

           

            Judgment given on January 30, 1969.

Deputy President Landau: In this Further Hearing we are required to reexamine the rulings that emerge from the opinions of my esteemed colleagues, Shamgar J and Berinson J, in this Court's C.A. 723/94. In that case, by a majority decision over the dissenting opinion of my esteemed colleague Ben-Porat J, the court accepted the appeal of the Respondents before us, Ha'aretz Newspaper Ltd. and others, against the Petititioners, The Israel Electric Corporation, Ltd. and Yaacov Peled, and rejected the Petititioners' claim for the payment of damages for defamation. (The District Court's judgment was published in District Court Judgments 1975, at page 671, and the judgment in the appeal was published in 31(2) P.D. 281.) Of the two majority Opinions in this case, my esteemed colleague Shamgar J ranged extensively across the issues and rendered novel holdings concerning the law of defamation that have far reaching consequences, while Berinson J based his decision on narrower grounds, limited to the application of the provisions of the Law Forbidding Defamation, 5725-1965, to the facts of the case, without expressing any opinion concerning the questions of principle dealt with in my esteemed colleague's judgment. Therefore, my esteemed colleague's judgment concerning those questions expressed his views only. Nevertheless, it is clear that even as such, because of its extensive intellectual apparatus, this judgment might become accepted in the future as binding and give guidance to many concerning their conduct and their claims, unless we come to different conclusions in this Further Hearing.

 

            After much consideration, I have concluded that I must disagree with my esteemed colleague on the following three issues: First, as concerns the preferred status he attaches to the principle of free speech in our legal system over a person's right to his good reputation. Second, with regard to the manner in which he interprets the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law), especially paragraph 15(4), which provides the defendant a defense for expressing an opinion in good faith. And third - and Berinson J joined my esteemed colleague in this matter - as to the manner in which they construed the article which was the subject of the claim and applied the Law to it. I will set forth my position on these issues in that order.

           

            My esteemed colleague writes as follows at page 240:

           

"The relationship between defamation and freedom of speech 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."

 

            Immediately thereafter, he refers to the American cases, starting with those earlier decisions in which the judges "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", and later, on page 241, the decision of the Federal Supreme Court in New York Times v. Sullivan [18], according to which -

           

"with regard to defamatory matter concerning holders of official or public office, the view that designates the laws forbidding defamation as an exception to free speech and no more, has been abandoned in the United States ... for some considerable time in favor of the principle that gives higher standing to the right of expression of opinion on matters of public interest concerning the holders of official or public office."

 

            That American case held that publishing untrue facts concerning a public office holder is protected, unless it be proved that the defendant knew that the statements were false or was indifferent to the question whether they were true or not. My esteemed colleague adopted this view, and after noting the importance of the principle of the right to free speech, in the spirit of the judgment in Kol Ha'am [1], he said further, on page 243:

           

"The previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status.... 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.... 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."

 

            I asked myself, from what source did my esteemed colleague draw support for such forceful comments on a matter of greatest constitutional importance, other than the American law in New York Times v. Sullivan [18]. He also mentions the Hilron case [2], which dealt with the proper relationship between a legislative enactment and the principle of freedom of gainful employment. But the views expressed at the particular place referred to in that judgment, page 653, are those of my esteemed colleague which are the minority view. My own opinion, that of the majority, stated on page 650, was that "the labor of interpreting legislation must be done without any particular widening or narrowing tendency...." And in the Further Hearing in that case, (F.H. 27/76 [3]) the majority again agreed with my view and my esteemed colleague Kahan J said, at page 22:

           

"I do not in any way minimize the importance of the basic right to freedom of employment. However, it is well known that the legislator has restricted this right in various enactments and in various ways, based on the view that the public good requires the imposition of these restrictions.... When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent...."

 

            And, closer to our matter, concerning what has been said in our judgments hitherto on the relationship between freedom of speech and defamation, I quote the words of Olshan J, in C.A. 90/49 [4], at page 597:

           

"... So long as a law exists that recognizes a person's right that his good repute not be impugned, it is in the public's interest that this right be honored and not be injured. If someone wishes to enjoy the right to freedom of speech and abuses such freedom, intentionally or otherwise, and in so doing injures another person's right, it is not unjust that he should be responsible toward the person so injured, and there is no ground for complaint that this entails some restriction on the citizen's right of free expression.

 

But each flower has a thorn. Since every publication involves some risk that it might contain something that could injure another person, this is likely to restrain all initiative for criticism or to disseminate information, even when the public good or that of the state require that such criticism be heard and that such information be disseminated.

 

Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

Agranat J said in Cr. A. 24/50 [5], at page 1160:

 

   "Our point of departure is the general assumption of the common law - which also applies in this country as well - that each person has the right to freedom of speech and freedom of expression. The objective of the local criminal law that establishes the offenses of distribution of defamatory material orally and publication of written libel, is to restrict this basic right when a person abuses it.... However, the law recognizes that, in 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."

 

            My esteemed colleague brought the final sentence of this quotation, on page 296, as being on all fours with the New York Times decision [18]. I do not agree: in my opinion, they are on all fours with the previous American precedents that my esteemed colleague summed up in the following words on page 240:

           

            "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."

 

            In the Kol Ha'am case itself [l], at page 880, Agranat J explained the relationship between freedom of speech and the necessity to preserve public security in the following words:

           

"The principal cause for this complexity is the competition between two types of interests, each of which is of considerable social and political importance."

 

And earlier, at page 879, he said:

 

"The right of free speech is not absolute and unlimited, but a relative right, which can be restricted and controlled to preserve other important social and political interests which, in certain circumstances, are considered paramount to the interests which are secured by the exercise of the principle of freedom of speech. The fixing of the boundaries of the exercise of the right of freedom of speech and the press is therefore a process of balancing various competing values and choosing among them."

           

            While he thereafter describes the right of free speech as "a supreme right ... that is the condition precedent for the exercise of practically all the other basic freedoms", at page 878, he immediately adds: "One must distinguish between freedom and anarchy" and he recalls at that point his words in the Gorali case [5], and Lord Kenyon's dictum: "Freedom of the press is dear to England but anarchy of the press is an abomination in England".

           

            In my opinion, these arguments remain strong, even after the provisions in the Criminal Law Ordinance and the Civil Wrongs Ordinance concerning defamation have been replaced by the Law Forbidding Defamation, 5725-1965. Accordingly, freedom of speech does not enjoy a superior status as opposed to other basic rights, but in Agranat J's words, it is

           

          "a process of balancing various competing values and choosing among them".

           

            This is not the "vertical" grading of a "superior right" against an ordinary right but the horizontal fixing of the boundaries of rights that have equal status, without any tendency to prefer one particular right as defined by legislation at the expense of its fellow right. From this it follows that one must interpret the statutory right according to its plain meaning in accordance with the legislature's intention, and not place some unwritten right above it.

           

            So far as I am aware, the idea of a superior right that stands above the written law has appeared thus far only once in our decisions, in the separate opinion of Sussman J (as his title was then) in E.A. 1/65 [6], at page 389. Sussman J's inspiration for this was the opinion of the Supreme Court of West Germany, which placed basic constitutional norms above even the written constitution. This view has been subjected to considerable academic criticism (Guberman, Israel's Supra-Constitution (1967) 2 Israel Law Review 445). Agranat P.J. did not follow this path. He interpreted the Knesset Election Laws in the light of the constitutional principles laid down in the Declaration of Independence. In this regard he followed the path he himself had laid down in the Kol Ha'am decision [1], without any tendency to limit the written law by way of interpretation.

 

            To be more precise, what is at stake here is the citizen's freedom as opposed to his right, that is to say, his freedom to say what he wishes and to hear what others wish to say, as opposed to his right not to have his honor and good name impugned. If there is indeed any place for grading the two vis-a-vis each other, I would place the right above the freedom. (On the definition of a right as opposed to a freedom, see H.C. 112/77 [7], at p. 662.) It appears that this is how the draftsmen of the proposed bill, Basic Law: The Rights of Man and the Citizen (Proposed Bills 5733-1972, p. 448), to which my honorable colleague referred, presented the issue. Compare the right to express one's opinion, which appears there as a relative right, which may be restricted, according to section 11(b) "by legislation intended to ensure the existence of the democratic regime ... to protect the rights of others...", with section 3 to the effect that "each person is entitled to the lawful protection of his life, his body, his mind, his honor and his good repute," which apparently cannot be restricted, according to the draftsmen's intent, by any legislation. Placing the right to good repute on the same level as the right to life calls to mind our sages' statement: "Whoever insults his fellow man in the presence of others is considered as if he sheds blood". Today we call this "character assassination". (Concerning the rulings of Jewish law that stress the importance of the dignity of man among the legal values deserving of protection, see the study by Dr. N. Rakover, "The Protection of the Dignity of Man", volume 54 in the series of researches and articles on Jewish Law published by the Ministry of Justice.) Accordingly, if the right of free speech is a "superior right", how should we denominate man's right to the protection of his honor and good name? As for me, this illustrates the problematic aspect of any written declaration of rights. See the example given in Chafee, Free Speech in the United States, p. 31, of a man who was brought before a judge because he had thrown his arms about and struck someone in the nose. He asked the judge if he did not have a right to throw his arms about as he wishes in a free country, to which the judge replied: "Your right to throw your arms about ends precisely at the point at which your fellow man's nose begins".

    

                   I propose that we not be so captivated by the precedent in the New York Times case [18], which so strongly influenced my esteemed colleague's opinion. As said, it was there decided that one who publishes criticism of a public official concerning a public matter is not liable for slander, even if his statements are false, so long as the publication was made in good faith. Justices Black, Douglas and Goldberg went so far as to say that this also is the case even when the publication was malicious - all this to preserve the principle of freedom of speech and the press contained in the First Amendment to the Constitution, which has become, in the fundamentalist view of Justice Black and his followers, an iron cast rule that cannot be limited in any way. I am certain that had the Bill of Rights in America contained a provision similar to that in section 3 of the proposed Basic Law in this country - and I do not know why one's right to his good repute was not recognized as one of the citizen's rights - the American Supreme Court would not have established such a far reaching rule. Under that ruling one may impugn a public servant with no factual basis, for example, by saying that he accepted a bribe, unless (according to the majority view) the person defamed can prove that the slanderer acted with malice. Another American judge, Judge Friendly, has already commented on this in the Federal Court of Appeals in Pauling v. News Syndicate Co. [19]. He asks: if it is permitted to defame a public official for accepting a bribe, what is the difference between that and defaming a person for giving a bribe to the public official? And what about a person who is not a public official, but he takes part in debate on a matter of public importance during the course of which he defames another person? Is he the next in line to receive immunity for his statements? Indeed, in Rosenbloom v. Metromedia [20], the majority of the Federal Supreme Court expanded the New York - Times rule [18], so that it also includes a private person, provided that the slander relates to a matter of public interest. The truth is that the opinions given there are so varying that it is difficult to discover any clear line. Gertz v. Welch Inc. [21], which my colleague referred to at page 241, constitutes a retreat from that extreme majority view, but the decisions still contain a great deal of inconsistency and confusion.

      

            In the American legal literature, one hears criticism of and disagreement with the New York Times precedent. In an article, "Access to the Press - A New First Amendment Right" (1967) Harvard Law Review 1641, Professor Jerome A. Barron disputes the Supreme Court's decision and sees in its attitude to the First Amendment as assuring "a marketplace of ideas", a "romantic" notion that is totally unrealistic. (See pages 1642 and 1656 et seq.). The press and other mass media, which in our day and age are the main providers of information and opinion to the public, are not a free market, but are in the hands of a small group of monopolists. A realistic view of the First Amendment compels the conclusion that freedom of expression is somewhat slender if it can be exercised only by the grace of those who operate the mass communications media (id., at p. 1648). He therefore proposes to secure by law to any person who is attacked by a newspaper the right of access to the newspaper so that he may bring his position to the notice of the same readers before whom he was defamed (and not just by means of a letter to the editor, which the editor may publish or not as he wishes). If no such right will be recognized, there will be considerable inequality between the owners of a newspaper and the ordinary citizen.

 

            The ruling of the New York Times case [18], was not accepted in other countries where the common law applies. Fleming says on this subject in his "The Law of Torts", 4th edition, at p. 512:

           

          "...Our law does not esteem freedom of speech and of the press even in matters of public concern sufficiently high to clothe false statements of fact with qualified privilege, let alone elevate it to a constitutional guarantee as in the United States."

           

            Gatley on Libel and Slander, 7th edition, p. 223, dismisses the New York Times case [18], with the following comment:

           

          "It is submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility and leave them open to others who have no respect for their reputation."

           

            In his detailed written summations Dr. Goldenberg, counsel for the Petitioners, sets out the laws of other common law countries throughout the world. Not one of these countries has adopted the American ruling. Mr. Lieblich, on behalf of the Respondents, did not deal with this particular matter. He restricted himself in his brief to a discussion of the legal questions that arise in Israeli and English law.

 

            In E.A. 1/65 [6], which was referred to above, Agranat J quoted with approval Witkon J's words in H.C. 253/64 [8], at p. 679:

           

"It is not an isolated phenomenon in the history of states having a well-functioning democratic regime that various fascist and totalitarian movements rose against them and used those very same rights of the freedom of speech, of the press and of association which the state accords them, to conduct their destructive activities under their protection. Those who saw this during the days of the Weimar Republic will not forget the lesson".

 

            It is worth recalling that one of the most effective means used by Hitler and his cronies to bring down the democratic Weimar regime in Germany was by the uncontrolled defamation of the heads of the state, by spreading lies about their conduct, while the courts did not respond approriately in the libel cases that were filed (on this matter see the article by David Riesman, "Democracy and Defamation: Fair Game and Fair Comment", (1942) Columbia Law Review 1085).

           

            This author's opinion is (id., at p. 1090):

           

"Whereas in Germany libel law was one of the cumulative factors in the Nazi triumph, in England there is evidence that the severity and impartiality with which the law of libel is enforced has measurably served to check the rise of demagogic fascism."

 

            These words contain a warning to those who are prepared to give excessive free reign and ignore the dissemination of libellous material against public persons, for fear that the protection of the right of free speech as an absolute value might be harmed. But one must be concerned that history might repeat itself. I have before me a copy of the judgment of the Supreme Court of Illinois, of January 17, 1978, in the matter of The Village of Skokie v. The National Socialist Party, [22]. The court there allowed a march by the National Socialists bearing swastikas in a Chicago suburb with a large Jewish population. The judges felt themselves forced to decide as they did by the First Amendment to the Constitution. This should cause us to ponder the matter.

 

            Thus, one must find the correct point of balance between this principle and the protection of the honor of a public servant who is attacked. I do not propose, heaven forbid, to belittle the importance of the role of a free press to criticize governmental acts and to uncover undesirable public matters and bring them to the public attention. But I deny the assumption that a responsible press cannot carry out these functions unless it is given the freedom to defame persons under the cloak of "fair criticism".

           

            I have propounded these matters concerning the New York Times decision as if the subject before us was tabula rasa, without a solution in statutory law. But, in fact, that is not the case, because we have section 15(4) of the Law which contains a full answer concerning the defense of fair criticism for a publication that expresses an opinion concerning the conduct of a person who acts in a public function or in connection with a public matter. We must interpret this provision, enacted by the legislature, as it is written and in its spirit. Precedents from other countries may assist us in our deliberations, but we should not attribute to them undue weight. My esteemed colleague has interpreted our law narrowly, and in that regard I disagree. In my opinion, we should interpret this section just as any other provision of a statute, first and foremost according to the ordinary meaning of its words. Because of our differing approaches, our resulting interpretations differ, too. My esteemed colleague concludes his opinion by saying (at p. 268) that -

           

            "It is our task to maintain this defense [for expressing an opinion in good faith], in practice and according to the letter of the Law and its intention and the tendencies that lie at its base." (Emphasis added.)

           

            And there is no doubt that the tendency to preserve the "superior standing" of freedom of expression strongly influenced his restrictive interpretation of the protection given to an impugned person against defamatory matters published against him.

           

            I will now turn to the second part of my discussion and will begin by copying the language of section 15(4):

           

          "15. In a criminal or civil action for defamation, it shall be a good defence if the accused or defendant made the publication in good faith under any of the following circumstances:

            …

           

                 (4) the publication was an expression of opinion on the conduct of the injured party in a judicial, official or public capacity, in a public service or in connection with a public matter, or on his character, past actions or opinions, as revealed by such conduct".

           

            I believe that this section together with the matters set out in section 15 give us a proper solution to the problem of balancing the conflicting values of freedom of expression and the protection of a person's honor and good name.

           

            The language of the section teaches us that it provides a "good defense" for two types of expression of opinion.

           

(a) the expression of an opinion concerning the injured party's conduct in a judicial, official or public function, in a public service or in connection with a public matter.

 

(b) the expression of an opinion concerning the injured party's character, past actions or opinions, as revealed by such conduct.

 

            Grammatically, the concluding words "as revealed by such conduct" apply to the second situation only and not to the first. It is clear, however, that the two components are present in the first situation as well: the injured party's conduct (in a judicial. official or public capacity, in a public service or in connection with a public matter) on the one hand, and the expression of an opinion by the defendant, on the other hand. And it is essential that the defendant's opinion relate to the injured party's conduct. From the opening portion of section 15 it is clear that the publication of the expression of opinion must be made in good faith, but it need not be the truth, that is to say, factually accurate. If this were not the case, there would generally be no need for the special defense accorded by section 15(4) and all the other sub-clauses in section 15. Section 14 gives a full defense, in any event, for publication of a truthful opinion, if the publication is a matter of public interest. Only if there is no public interest in the publication does the publisher need the defense provided in section 15, if it is a true opinion.

 

            From the language of section 15(4), therefore, one learns that publications falling within its purview must contain the following true elements:

           

(a) reference to the injured person's conduct in a judicial, official or public capacity, or in connection with a public matter (or to his character, past actions or opinions, as revealed by such conduct) ;

 

(b) the expression of the accused or the defendant's opinion concerning one of the matters mentioned in (a).

 

            There is a basic difference between these true elements, in that element (a) must refer to correct facts, whereas with regard to (b), in certain situations the publisher has a defense against criminal and civil liabilty even if the expression of opinion was not the truth.

           

            As said, with regard to the description of the conduct, the publication must relate to true facts. On this matter there is already established precedent in this court interpreting the provisions of the 1965 law: C.A. 34/71 [9], at p. 528; C.A. 30/72 [l0], at p. 236. I am prepared to restrict this requirement as set forth by my esteemed colleague, Ben-Porat J, in her Opinion in the appeal which is the subject of this Further Hearing (at p. 284), that one must read into section 15 of the Law that portion of section 14 concerning the defense of truth: that the defense should not fail for the sole reason that the defendant was unable to prove the truth of an incidental detail that does not contain substantial injury. I also agree with my esteemed colleague (at p. 278) that the publisher must set forth at least the main facts on which his opinion is based. I would add that the publisher does not have to particularize facts which are in any event publicly known and which, therefore, need not be repeated in the publication which was made. However, I do not agree with my esteemed colleague's statement at p. 256:

           

"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."

 

            I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion. At page 257, he relies upon the words of Justice Brennan in the New York Times case [18]. I have dealt extensively with that judgment. I will now add that in my opinion it is clearly contrary to the correct interpretation (which is not a restrictive construction) of the provisions in our law. I will add also that the New York Times case itself does not speak of the publication's dominant character, but permits the publication of inaccurate facts concerning a public figure without regard to the dominant nature of the publication.

           

            My colleague referred at this point in his Opinion to an inaccurate fact which has been intermingled with the expression of an opinion. I cannot accept this intermingling theory, in principle, because in my opinion any publication seeking the protection of section 15(4) must make a clear separation between the description of the facts and the expression of an opinion concerning those facts. The very mixing of these two elements might make the writing unclear and allow the insertion of libellous and untrue facts into the opinion. The writer must indicate on which facts he is relying, and these facts must be accurate (except for incidental facts that are not substantially harmful), and having set forth the facts, he may then draw his conclusions from them by way of expressing an opinion, provided he clarifies and distinguishes between a fact and an opinion. On this matter, I am prepared, together with my esteemed colleague, to adopt that part of Odger's book which she brings at page 277. If the setting forth of the facts is separated from the expression of opinion by way of conclusion drawn from those facts, it is as if the publisher says to the public that read or hear him: "These are the facts concerning this person's conduct and this is my opinion about that conduct. And now you, the reader, judge if you accept my opinion based on those facts". Such a presentation of matters is not forbidden by section 15(4), and if the opinion is expressed concerning one who fulfills a judicial, official or public function, or a person in the public service or in connection with a public matter, the injured person will have to accept the situation, even a wrong conclusion that the publisher has drawn from those facts, if the expression of opinion by way of drawing conclusions complies with the remaining requirements of the law. The remarks of an Australian judge on this topic, brought by Gatley at page 298, hit the mark:

 

"To state accurately what a man has done, and then to say that (in your opinion) such conduct is dishonourable or disgraceful, is a comment which may do no harm, as everyone can judge for himself, whether the opinion expressed is well founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging for himself the character of the conduct condemned, nothing but a false picture being presented for judgment." Per Windeyer J. in Christie v. Robertson (1889) 19 N.S.W.L.R. at p. 161 [17].

 

            From what I have just said in relation to the "dominance" theory, it is clear that I disagree not only with my esteemed colleague but also with Berinson J, who said (at p. 269):

           

"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 the conclusions expressed and the criticism contained in it.... 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."

           

            I understand from these remarks that Berinson J supports the idea of "dominance" in the publication. I will deal later on with the question whether these inaccuracies, which were intermingled with the opinion and the criticism, were indeed secondary in their importance.

           

            With regard to the defense under section 15(4), the Law does not recognize any distinction between the owner of the newspaper and its editor or any other person who makes a publication. The claim that the owner of a newspaper and its editor have superior standing was rejected in earlier stages of these proceedings, C.A. 213/69 [11], in which this Court struck out the claim of a defense under section 15(2), and held, based on the ruling in C.A. 90/49 [4], that the law applicable to newspapers is the same as that applicable to any other person, with regard to the duty of publication, that is to say, he may not rely on the defense under section 15(2) when such a defense is not available to another person. So, too, C.A. 552/73 [12]. And if a newspaper does not have superior standing with respect to section 15(2), then the same is true with regard to the defense for expression of opinion in good faith under section 15(4).

           

            With regard to the scope of the right to expression of opinion in good faith (as opposed to the presentation of the facts), I am prepared to accept Justice Brennan's remarks in the New York Times case [18], which my colleague cites (at pp. 244-245), that the debate concerning disputed public matters may be "uninhibited, robust and wide open". This is necessary so as not to stifle the free clarification of political and other disputes in which the public has an interest. Here, freedom of expression overrides the policy of protecting the individual's good name. But our law sets limits to this freedom. (a) The opinion must be expressed in good faith (the opening part of section 15) and (b) the publication must not exceed that which is reasonable in the circumstances set forth in section 15(4). And while requirement (b) appears in section 16, which deals with presumptions concerning good faith, one may derive from this a substantive requirement that the opinion expressed must also be reasonable. On this point I agree with the broad language that my esteemed colleague brought from the English cases:

 

"In this regard, it is sufficient that a reasonable man could have reached the defamatory conclusion from the facts set out in the publication, and that the facts upon which he relied were brought in the body of the publication".

 

            But once again, the facts on which the expression of opinion or criticism is based must be correct, and it is not sufficient that the weight of the accurate facts is dominant with regard to the inaccurate facts, in the total picture.

           

            My esteemed colleague said (at p. 262):

           

            "As explained above, the purpose [of sections 15 and 16 of the Law] 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."

 

            Dr. Goldenberg attacked this statement, but it seems that his criticism was based on a misunderstanding. My esteemed colleague spoke here (and he will certainly correct me if I have misunderstood him) only of the expression of an opinion "that is not grounded in the truth", and he did not intend to say that the facts upon which the opinion or the criticism was based need not be truthful. With that I too agree, provided that the expression of the opinion was honest and reasonable, (but I did not agree, as aforesaid, that it is sufficient if the dominant character of the factual basis for the criticism be truthful).

           

            I have now reached the last part of my Opinion, in which I will examine the publication which is the subject of the Petitioners' claim. The article was brought in its entirety at pages 230-23l and I will not set it out again. No one disputes any longer that the Respondents did not establish the truth of the statement in the article that "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...." On the other hand, the Petitioners did not prove that the Respondents published the article's contents in bad faith. In this context it should be remembered especially that the fourth Respondent turned to the first Petitioner's spokesman before the publication occurred and asked for his reaction, but the latter refused to give any reaction (as a result whereof the Petitioner was awarded nominal damages in the amount of one pound only).

 

            Before I examine the contents of the article, I will dispose of Mr. Lieblich's claim that, since the majority judges in the appeal concluded that the article in its entirety was primarily a good faith expression of opinion, this is a finding of fact, and this court's practice is not to intervene in such findings in a Further Hearing, because Further Hearings are not intended to serve such a purpose, while on the other hand, it was proper for the majority judges to contradict the District Court's findings, because the question of classifying the article's contents is a question of law. Mr. Lieblich's claim is self-contradictory. It is correct that the question concerns the application of the law to the facts, and if the law was not interpreted correctly, then its application to the facts may contain a legal defect which can be corrected in an appeal and also in a Further Hearing. In my opinion, this is what happened in this case, because the majority opinion in the appeal contains novel holdings which ought not to be supported and they influenced the majority's interpretation of the provisions of the Law and, as a result thereof, also the way in which the Law was applied to the facts.

 

            I agree with my esteemed colleague that the question here is that of classification of the article's contents. The article charged that the Petitioners intended to mislead the public - to calm down the criticism of the purchase of an expensive car for the second Petitioner during a period of financial cutbacks by means of the fraudulent assertion that the car would be sold, whereas in fact this was merely a subterfuge, because their true intention was that the vehicle would be returned for the second Petitioner's use when the hue and cry will have died down.

Was the attribution of this intention to the Petitioners a factual claim - and a false fact - or was it only the expression of an opinion? My esteemed colleague concluded that based on the dominant character of the article, this was only an expression of opinion and Berinson J thought that the Respondents mixed fact and opinion together, but he did not consider that of any import.

 

            Dr. Goldenberg suggested a standard for distinguishing between determining facts and expressing an opinion (in paragraph 18 of his summations):

           

'"A fact' is not only a primary fact but also a factual conclusion, presented to the reader as a factual datum. 'The expression of an opinion,' by contrast, is the rendering of an expression of value, ('good', 'bad', 'appropriate', 'inappropriate', 'proper', 'improper', and the like), that is to say: the making of a normative value judgment on the facts in their widest sense (including factual conclusions)".

 

            This standard seems to me too narrow, because the attribution of this or that intent to the injured party, too, such as fraudulent intent, can be an expression of opinion by way of drawing a conclusion from the detailed facts, even if it is not a normative judgment. But, as I set out above, in order for the attribution of a particular intention to be the expression of opinion, the publisher must first set forth all the facts upon which he attributes that intent to the injured party. In this way, the expression of an opinion can also be correct or incorrect, true or false, whereas Dr. Goldenberg's standard of making a normative judgment does not state "correct or incorrect", but "appropriate or inappropriate" and the like.

           

            I will illustrate my words by reference to the contents of the article in issue: the attribution of fraudulent intent appears in true places, in the first part of the article and in its second part. The second part states, based on the facts previously brought out:

           

            "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 ...."

 

            In other words, the Goldberg agency clerks drew their conclusions from the facts which were set out and the fourth Respondent agrees with this conclusion. If that were all, I would have said that this is expression of an opinion concerning the corporation's intent, which does not necessarily have to be true for the Respondents to enjoy the protection of section 15(4), and all that remains to be done is to see whether the conclusion which was drawn is not unreasonable based on the facts set out. However - and this is the important point - there is also the first part of the article in which the writer states categorically that: "actually, the Electric Corporation is not really interested to get rid of the car". This is a clear finding of fact, that is the article's sting, without any factual foundation having been laid for it in what was said earlier. This part of the article gives the ordinary reader the impression that the writer has information on the basis of which he establishes it as a fact that the Corporation does not intend to sell the car. That is to say, he does not invite the reader to judge, based on facts which he has set out, whether it is reasonable to draw this conclusion, but the writer has already judged for himself, as it were on the basis of evidence which he does not disclose, and he encourages the reader to accept his judgment without exercising his own criticism. Such a presentation of fact is done at the writer's risk and if he is not able to establish its truth, he must bear the consequences. It is true that there also is the second part of the article in which the matters are presented as the conclusion drawn by the clerks at the Goldberg agency, with which the writer agrees, and that one should generally read the article in its entirey in order to discern its nature. But one must also remember that the ordinary reader of the newspaper does not analyze the material presented to him in great detail, but the general impression is what counts, and this impression is very much influenced by the order in which the matters are set forth. If a certain impression is created at the beginning of the article, it will not easily be erased by other matters which appear later. At the very least it may be said that this article mixed factual statements and the expression of opinion in a way that the reader cannot separate them - and this is sufficient ground on which to hold the respondents liable.

 

            On the basis of the above, I would set aside the judgment of the majority in the appeal and I would hold the Respondents liable, as did the District Court in its judgment.

           

            After writing this Opinion, I received a copy of Sir Zelman Cowen's book "Individual liberty and the Law" published by Eastern Law House, Calcutta & Oceana Publications Inc., Dobbs Ferry, New York. This is a collection containing the Tagori Lectures that the author presented at the University of Calcutta. The learned author (who is now the Governor General of Australia) discusses in these lectures the fundamental problem of preserving the individual's right to his good name and privacy as against the freedom of the press. I have no doubt that this book will become a leading book on this subject. I note with some satisfaction that much of what I have said here accords with this authority's opinion. (And as chance would have it, the title for the first part of the book is "The Right to Wave My Arm"). The perusal of the chapters in the book that cite extensive authorities that were not before me has broadened my understanding and deepened my thinking concerning the matters we have dealt with in this Further Hearing. There is no room here to describe even its principal contents. The reader will find there a complete analysis of the American decisions, beginning with New York Times v. Sullivan [18], in a very critical light. The author's conclusion is that the publication of that opinion was no occasion for "dancing in the streets", as one American professor suggested (see pp. 47, 63). After studying this important book, I am reinforced in my view that we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws.

 

            Kahan J: I agree.

           

            Etzioni J: I respectfully concur fully with my esteemed colleague, the Deputy President's judgment, in its entirety. However, in light of the very wide ranging arguments which my esteemed colleagues Shamgar and Ben-Porat JJ have set forth, and of the new and far reaching precedents which were established in C.A. 723/74, as the Deputy President notes, I find it proper to add a few remarks of my own, particularly with regard to the question whether the principle of freedom of expression is superior to the right of a person to his good name, in the hope that I will not detract thereby from the Deputy President's comprehensive remarks.

           

            In C.A. 30/72 [l0], which the Deputy President has referred to, I discussed the strict rules of Jewish law concerning a man's right to the protection of his good repute, as expressed in the well known sentence from the book of Ecclesiastes: "Better a good name than good profits". I also quoted there from Maimonides, Laws Concerning Beliefs, chapter 9, that a person who disparages his friend, even when saying the truth, nevertheless commits an act of speaking with an evil tongue. Still, I set out there that a public person is subject to public criticism and exposure. And in Cr.A. 364/73 [13], I expressed my opinion that the judiciary, too, is not immune from this criticism. In that judgment, which concerned a person who was charged with criminal contempt of a judge, I said:

 

"There is often a clash between two principles in this matter. One is the principle of respecting the judicial system while the other is freedom of expression and criticism, including criticism of the judicial system and the judges".

 

And I added:

 

"It is not always easy to tell which principle to prefer in each case. And if from time to time it turns out that a judge suffers unfair criticism, well this is the unavoidable price of the democracy in which we live. Only in totalitarian countries does the citizen not dare to criticize the regime and the courts."

 

And, further on, I said:

 

"Such criticism must be fair, restrained and based on the issues. Nevertheless, it should not be silenced when from time to time it crosses the bounds of good taste".

 

            I have quoted the above matter so as to show that I am not lightly disposed to limit the citizen's and the press' right of criticism regarding the acts of public figures, including judges themselves, as long as such criticism is within accepted bounds of fairness. As for me, I see no conflict between these two principles of freedom of expression and criticism and the protection of a person's good name.

           

            I expanded on this matter in another case, C.A. 552/73 [12], where the question arose whether the award of high sums of damages for defamation might repress freedom of the press. I allow myself to repeat what I said on that occasion:

           

"I am far from denigrating the importance of the existence of a free press in Israel. However, when is that the case - when this freedom is not abused. When we speak of the freedom of the press, we mean principally the freedom to publish a clear and true account of events that occur in the country and the ability to criticize them freely, without fear of official censureship on political or other grounds. However, this freedom is not a license to issue defamatory material without any factual basis".

 

And I also added there:

 

"If the newspaper crosses the boundary of reasonableness, it can no longer enjoy any privilege by claiming that the imposition of heavy damages could harm freedom of the press."

 

            It is clear, therefore, that there is no ground to prefer the principle of freedom of expression over that of a person's right to his good name.

           

            And if there be any need to cite additional authority beyond that which my esteemed colleague has brought, I find such in the rules of professional ethics that were adopted by the Press Council and were set out in the Annual Book of Journalism, 5738-1978, in an article by Advocate Rotenstreich, "Guarding Freedom of the Press." I quote three of those rules, numbers 1, 3 and 6:

           

"1. Freedom of the press and expression are man's basic rights, a cornerstone of his freedom and his rights in a democratic society. This right achieves its fullest and most comprehensive expression to the extent that journalists remember and take care to preserve their moral duty to truth and accuracy in the collection of information and its distribution - and by considering the acts, the thoughts and the sensibilities of the public."

 

"3. The journalist's and the newspaper's calling is to furnish to the public reliable information and interpretation which accords with the facts."

 

"6. Ridicule, inciting against a person and unfounded accusations - for example, on the basis of personal, national, ethnic, religious or racial background - are serious offenses for journalists. The journalist and the newspaper must respect every person's good name and private and family life.

 

If the publication has injured someone's honor and good name, he should be given the opportunity to publish a reply. The journalist and the newspaper must be particular concerning accuracy and to prevent the reader from drawing wrong conclusions." (Emphasis added - M.E.)

 

            From these provisions we see that even those who are particularly concerned to protect freedom of the press do not adhere to the principle that this freedom has superior status, but take particular care that a journalist who publishes his words to the public will exercise his legitimate and desired right of public criticism without belittling his other duty, to be exacting in preserving the facts that are the basis of such criticism.

           

            As my esteemed colleague the Deputy President has already pointed out, the Respondents in this case did not comply with this duty, and I therefore agree with his opinion, with all due respect.

           

            Ben-Porat J: There remains for me only to concur in the opinion of my esteemed colleague the Deputy President. His remarks complete what I omitted in my own remarks in the original hearing.

           

            I also concur in the remarks made by my esteemed colleague Etzioni J.

           

            Shamgar J: 1. I have read with interest the remarks of my esteemed colleague, the Deputy President, which represent the majority view in this Further Hearing, and out of respect to the position taken by my esteemed colleagues, I have also reexamined my own judgment in C.A. 73/74 (hereinafter - the previous hearing). My conclusion is that I disagree with the views expressed by my esteemed colleagues in this Further Hearing and I do not see my way clear to change the views I expressed in the previous hearing.

           

            2. The text of the article and the facts of the event will not be set out here once again, although their study is, of course, an essential condition for the evaluation of the substance of the publication that is the subject of this case, its connection to the proven facts, the classification of its parts - whether as facts or as the expression of opinion to which section 15(4) of the law applies - and the drawing of conclusions concerning proof of the existence of any of the circumstances specified in section 16(b) of the Law which deal with presumptions of lack of good faith.

           

            It is unnecessary to add that I also will not repeat here in detail my conclusions and my thoughts which were set out extensively in the judgment in the previous hearing, and for the reasons therefore, I refer the reader to what I said in the previous hearing.

           

            Since the inquiry in this Further Hearing has been very widespread, and in order to fix correct bounds, it will not be superfluous, I think, to state that we deal here with a defined segment of the law forbidding defamation, that is - a publication that relates to a matter of public interest and deals with the conduct of an official or public functionary.

           

            3. My esteemed colleague, the Deputy President, disagrees with my stand, as he says, in these three respects:

           

(a) The preferred status granted by our law, in my opinion, to the right of freedom of expression.

 

(b) The meaning of the provisions of the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law) in general and of section 15(4), especially and primarily the manner in which those provisions should be interpreted.

 

(c) The application of the defense set forth in section 15(4) of the Law to the article which is the subject of this litigation.

 

            4.As I have said, the majority of my esteemed colleagues disagree with my basic position, which I set forth in the previous judgment and according to which -

         

   "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 on 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.... 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" (Emphasis added - M.S.).

 

            It follows that acceptance of this legal point of departure, that recognition of the basic freedoms is an essential part of the law in Israel. entails the conclusion that the basic freedoms are part of the law. as per their name and their purpose, that is to say, as basic rules that guide and give structure to forms of thought and legal interpretation and influence them by their spirit and direction. The result is, among other things, that to the extent that the matter can be reconciled with the written law, one should always prefer the existence of freedom of expression as opposed to its limitation and restraint. It goes without saying that I agree that when a court is called upon to interpret the provisions of a law that has implications for freedom of speech, the court may not declare that the law is void if it contains express and unequivocal provisions that forbid the exercise of that right or establish a specific limitation on it, in particular circumstances. But whenever the legislature's words leave room for interpreting the law one way or another, that is whenever the modes of interpretation allow a choice between a strict interpretation that tips the scales in favor of curtailing freedom of expression and an alternative liberal method, then the second method should be adopted, which will protect and establish freedom of expression to the extent possible.

 

            My esteemed colleague, the Deputy President, is not ready to lend his hand to this approach, and as he hinted, his attitude derives, to a certain extent, from the difficulties inherent, in his opinion, in any written declaration of rights, that is to say, from his doubts concerning the necessity of giving constitutional standing to the basic rights.

           

            In this context, freedom of expression has been called "an unwritten right", but this does not reduce its legal standing in any way. Our Israeli common law has not yet been transformed into written law, and despite legislative efforts to convert unwritten principles into written rules, it should be assumed that there will remain legal precedents that do not find expression in any particular legislative enactment. As is well known, this does not in any way detract from their standing in our system of law.

 

            In taking exception to the standard for interpretation which I set forth in my Opinion, the Deputy President refers, among other things, to the remarks of my esteemed colleague, Kahan J, in F.H. 27/76 [3]:

           

"When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent".

 

            With all due respect, this is not at all the question before us in this case: so long as this court has no power of constitutional review, it is obvious that a clear and unequivocal statutory provision must be interpreted according to its plain import and meaning, even if that law curtails a basic freedom. The standard or the guideline to which I referred above becomes important, as I explained, when the matters are not clear and unequivocal, when the text of the law allows room for judicial discretion and when the question arises in this connection, what is that intention that should be read into the legislature's words.

           

            More particularly, the legislature did not lay down unequivocally that any person who transmits a fact inaccurately, whether slight or serious, important or marginal, substantive or irrelevant, will always be liable for having committed a tortious act, without more. Were that the case, there would be no place for the thesis I have set forth. But that is not the way in which the legislature works. It defined defamation but also set up frameworks to clarify and to classify published matter, it established the importance of good faith and created defenses and mitigations which would apply to different publications, even though they are defamatory. Among other things, the legislature defined those circumstances which will raise a presumption that the publication was not done in good faith and opened the door thereby, that the opposite conclusion will be drawn on certain facts. These special defenses are a clear sign that, in certain circumstances, the legislature chose to prefer freedom of expression even though the publication injures someone's honor.

           

            This reflects a basic approach which, in my opinion, should be extended and applied whenever the court concerns itself with the interpretation of the Law or the meaning of a publication, as for example, when writings that criticize a public authority can be understood both as expressing an opinion and as stating a fact. To sum up my view, I can best refer once again to part of those quotations which were brought by my esteemed colleague in his Opinion from Olshan J (as was his title then) in C.A. 90/49 [4], which include the following selection:

           

            "Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

            So, too, Agranat J's view (as was his title then) in Cr. A. 24/50 [5], at p. 1160:

           

"The law recognizes that, in certain particular circumstances, the public good requires that a person not be punished for distributing defamatory material, so that the above-mentioned basic right [freedom of expression - M.S.] not be emptied of all content, because the danger of harm that would be caused to the public by over-restriction of freedom of speech and writing is given preferred consideration over the injury to one individual."

 

            And in H.C. 73/53 [1], Agranat J called freedom of expression a superior freedom that is a condition precedent to the exercise of almost all the other freedoms.

           

            I do not disagree with my esteemed colleague that one must distinguish between freedom and anarchy and that certain freedoms must be qualified, in given circumstances and conditions, for the public good. However, the question always is where to draw the line and what is the proper guideline for marking the limits. It may not be inferred from my esteemed colleague's remarks, which appear to set up a person's right to his honor and his good name as paramount to the right of freedom of expression, that he believes that it is always forbidden to publish a libel, regardless of the circumstances. For that would render the provisions in the Law that establish defenses when the published words are defamatory empty of all content. So, too, one should not infer from the protected and preferred status given to freedom of expression that it may never be qualified in the slightest.

           

            To sum up, when the law provides defenses whereby, in specified circumstances, things said or written will not be regarded an offense or a tort even though their content is defamatory, the basic approach takes on great importance: whether it is severe, restrictive and guided by a narrowing yardstick, that seeks to impose the fear of the law on marginal cases, such as those which we will deal with shortly, in which insignificant and unimportant inaccuracies have been intermingled in the writing that is essentially the expression of opinion concerning the improper conduct of a public functionary. Or, perhaps we should interpret the writing - to the extent possible - liberally, and perceive the defenses defined in the written law as an expression of a desire not to harm or impede the free expression of criticism concerning public matters, beyond the necessary minimum.

           

            5. The majority Opinion expresses the view that, instead of giving interpretive superior status to the principle of freedom of expression, one should undertake "a process of balancing the competing values on the scales and choosing among them". This does not provide an answer to the question how one should interpret the provisions of a given law. The process of balancing competing values describes the starting line of interpretation, but it does not provide criteria or value weights with which to do the work of interpretation. Furthermore, I fear that the result of comparing values without setting forth criteria for evaluating their respective weights will be that, in each case, the court will apply whatever criterion appears appropriate in the circumstances, according to the best understanding of the particular panel that happens to be sitting. In other words, the decisional framework which contains a guideline of value, namely, the object of maintaining a fundamental freedom, will be exchanged and replaced by an unpredictable paternalistic and arbitrary framework. With all due respect, this is most unsatisfactory, and I am certain that it also will not bring about clear and consistent decisions.

 

            6. For the purpose of emphasis and clarification, my esteemed colleague referred to the German experience, that is to say, the theory that the weakness of the German law of defamation during the period of the democratic Weimar regime that preceded Hitler was used by the enemies of democracy as a very effective weapon to undermine democratic regime. For support, he referred to the article by David Rieisman which was published in the Columbia Law Review in 1942. It seems to me that the long period that has passed since then has given us a wider historical perspective for the understanding of the many and varied factors that led to the rise of the Nazi regime in Germany and I am certain that a broader analysis, today, would disclose that the relative importance of the German libel laws in this context, as opposed to other factors and elements, was not great. However, the principal matter is that one must be cautious when it comes to imposing restraints on freedoms merely because a totalitarian movement of one type or another managed to take advantage of such restraints for its nefarious purposes. Such an approach, itself, can lead to dangerous and far reaching conclusions. It is better to avoid analogies whose relationship and similarity to our political and social realities and our system of law are flimsy and slight, particularly when this very month two foreign journalists were put on trial in Moscow for defaming officials of the Soviet broadcasting authority.

           

            I only repeat what is well known, from the statement of one of the great men of the generation, when I conclude my discussion of this point by saying that the democratic system of government has many weaknesses, one of which undoubtedly is that the freedoms it allows can be used by persons of evil intent. But, at the same time, we accept the fact that we have yet to find any better system of government, be it for the individual, for society as a whole, or for the proper balancing of the needs and the rights of both.

           

            7. I will now proceed to the second question, namely, what is the correct interpretation of the Law. At the beginning of his discussion of this topic, my esteemed colleague refers to the defenses which the Law provides. But it should be emphasized here that we are not talking about defenses for the protection of the injured party, as might be understood from his discussion and his conclusions, since he considers my interpretation to be narrowing. By calling chapter 3 of the Law "Permitted Publications, Defenses and Mitigations", the legislator intended to refer to publications permitted to the publisher and defenses and mitigations for the defendant and not for the plaintiff.

           

            However, the conflict between us does not rest on the question of whether my interpretation is narrowing or widening. All that I sought to express in my Opinion in the previous hearing was that the text of our Law, including section 15(4), is consistent with the basic precepts which I put forward and does not conflict with them, and that it can be interpreted so as to preserve its fundamental purpose, namely, to forbid the publication of defamation while providing proper protection for those publications that are essential to the existence of a free society .

           

            The judgment in the Sullivan case [18], as any other foreign precedent, could not have been cited by myself as a binding precedent and the description of its holdings was a presentation of the views and basic tendencies accepted in this field in the United States, which I proposed be adopted because they are consistent with our own written law. In other words, our legal criterion in this matter is exhausted by sections 15 and 16 of the Law, but it is up to us to decide what content to give to this legislation and what meaning to attribute to it.

           

My esteemed colleague said, among other things that -

 

   "we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws".

 

            With all due respect, I disagree with the assertion that there is a unitary accepted approach to this matter in the common law countries other than the United States. And precisely Sir Zelman Cowen's book, to which the esteemed Deputy President referred, cites the varied tendencies and views, that often contradict each other. (Compare, for example, the conflicting proposals concerning the status of newspapers with regard to the law of libel and the conclusions of the New South Wales Law Reform Commission, 1968, with those of the Shawcross Committee (The Law and the Press, 1965).) But furthermore, I would not incline to give approbation to the English libel laws, which only recently it was stressed require correction (see the report of 1975) and as to which Lord Diplock previously said:

           

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

           

            8.         With regard to the interpretation of section 15(4) of the Law, in my opinion, the dispute turns primarily on one issue, namely, the significance of the incorporation of secondary factual allegations within a publication that is primarily (dominantly) the expression of an opinion. Still, I conclude that my esteemed colleague did not see fit to adopt the rest of the lower court's conclusions in this matter, with which I disagreed, viz.:

           

(a) that the concepts good faith and truth are always linked together with regard to the protection against libel, which, in my opinion, contradicts the provisions of section 16(b) of the Law, and

 

(b) it appears from the District Court's analysis of the issues that every expression of opinion must meet the test of reasonableness in the eyes of the court that sits in judgment, that is to say, it is not the departure from the bounds of reasonableness in expressing the opinion in the circumstances of the case that determines, but the general reasonableness of the opinion in the eyes of the court.

 

            My esteemed colleague correctly states with regard to (a) above, that the expression of an opinion need not necessarily be the truth - that is to say, factually correct - else generally there would be no need for the special defense provided by section 15(4) of the Law.

           

            We will not deal with his remarks concerning item (b) above.

           

            On the other hand, he disagrees with the following matters said in the previous judgment at p. 256:

           

"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."

 

In this context, my esteemed colleague says:

 

"I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion."

 

            According to my scheme, it is not necessity to seek support for this particular point in the words of sections 15 or 16. The yardsticks set forth in section 15 of the Law should be interpreted according to their substance and their clear direction, and in a manner so as not to draw from the text unnecessary strictness. Moreover, the presumptions created by the legislature in section 16 and the imposition of the burden of proof which derives therefrom support the opinion that the legislature intended to relax the publisher's burdens, if he acts without malice. Therefore, the mingling of a factual detail in a publication which is by its dominant nature an expression of opinion need not be interpreted in a limiting fashion, and it would appear from further on in his Opinion that my esteemed colleague treated an ancillary fact in the publication in the same manner, without relying on a specific provision in the written law.

 

            Incidentally, one can find expression of a similar approach in the current opinion in England and, I referred in this context, for the purposes of comparison, to section 6 of the Defamation Act, 1952, and also, to no little extent, to the remarks of Denning J in Slim v. The Daily Telegraph [15], to which I will refer again later on.

           

            I am also pleased that my esteemed colleague agrees that the defense under section 15 is not lost merely because the defendant does not prove the truth of an ancillary fact that is not seriously harmful, even though that section of the Law does not contain an express provision to this effect. Were the Law to be interpreted strictly, on the basis of its express provisions alone, one would have to conclude from the inclusion of such a provision in section 14, on the one hand, and its exclusion from section 15 which concerns us here, that such an ancillary fact would in fact undermine the defense.

           

            It is unnecessary to add that this interpretive difficulty does not arise according to my method.

           

            I incline to conclude that the difference between my esteemed colleague's approach on this particular point and mine is not a conflict of principle but stems from the difference between establishing the principle and applying it.

           

            Essentially, one's basic approach bears on the evaluation of the significance of the intermingling of a factual detail in the expression of an opinion. publications concerning public matters are not always written in the same manner as one would prepare a legal opinion or legislation, and the application to them of a picayune yardstick that demands strict compartmentalization of fact and opinion and judges every slight deviation harshly could impose a heavy burden on freedom of expression. I agree that this strict view was stated expressly in the 1911 edition of Odgers, but I believe that since then we have seen the first signs of a more liberal approach. perhaps it would be correct if I quote once again Denning L.J.'s words in Slim v. Daily Telegraph Ltd. [15], at p. 503:

           

            "...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 actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed 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 up 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 newspapers should be free to publish his letter. It is often the only way to get things put right."

 

            And at page 198 of the judgment in London Artists [16], which I also referred to in my previous judgment, Denning J categorized a particular letter as a combination of facts or as opinion on the basis of -

           

            "... a fair reading of the whole letter ...",

           

a yardstick which I would adopt in the matter before us.

 

            9. I now come to the third topic, the interpretation of the article itself:

           

            With regard to the factual inaccuracies in the article, I can do no more than repeat my previous remarks at page 263 of the original judgment, as follows:

           

"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 communicate 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, 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."

 

            Given the light weight of these inaccuracies, the defense of good faith set forth in section 16 of the Law applies to this article, as I said at pages 264-266 of my judgment:

           

"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 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 Mr. 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 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 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)."

 

            With regard to section 16(b)(2), my esteemed colleague commented on the fact that the fourth Respondent sought to speak with the first Petitioner's spokesman, but he refused to react and he noted that, as a result thereof, the first Petitioner was awarded damages in the amount of one pound only.

           

            But the proofs in the lower court also indicated that the second Petitioner is the person who gave the order not to reply to the Respondent's approach, but for some reason the lower court did not draw any conclusion in connection with that.

           

            10. The majority Opinion and I disagree whether to categorize a certain sentence in the article as fact or opinion ("actually, the Electric Corporation is not really interested to get rid of the car") and over the significance of mixing finding facts with the expression of opinions. I viewed this sentence as the expression of an opinion, that arises as a conclusion from the facts given in the earlier part of the publication, whereas my esteemed colleagues regard it as a factual claim. As to my view of the matter, I can do no better than to refer once again to what I said at page 264 of my previous decision and to the selection quoted above from the judgment in Slim [15], according to which, the substance of the publication should be judged, among other things, after a fair reading of the whole.

 

            11. To sum up the matter, the stricter standards which my esteemed colleagues have adopted as the test for examining factual inaccuracies and the interpretation with regard to classification of some of the matters set forth above, causes the majority to find fault with the publication at issue.

           

            I regret this for two reasons:

           

            First, I fear that this may be interpreted as a restraint and limitation on the principles concerning freedom of expression which have been crystallized in our legal system ever since the establishment of the State and particularly since the decision in the Kol Ha'am case [1]. Second, the failings which are uncovered from time to time in our public service are not rarities and not infrequently the citizen faces obstinacy, bureaucratic arrogance, indifference, and an unwillingness to practice fiscal economy and even worse. Efficient and free criticism of the conduct of public authorities, including the government companies that provide public services, is an essential means for correcting these improper practices. If the citizen fears that the every factual inaccuracy, no matter how trivial or slight, might involve him in legal proceedings, and that every doubt that arises from his text will be interpreted strictly, he will be in fear of those who control unlimited funds in the public purse to conduct their litigation, he will not dare to protest and the criticism will be stifled before it has been uttered. The yardsticks for the limits of permitted criticism of those holding official or public office which have been adopted in the United States and whose underlying approach - as distinguished from its detailed application - can be adopted in my opinion within the framework of our written law, were not created in a vacuum. They are not the fundamentalistic views of judges of the school of Justices Black and Douglas, because it was not their opinion that prevailed in the Sullilvan case [18]. This conclusion arises from the need to create efficient checks and proper balances in a free society against the development, and even victory, of those who would take wrongful advantage of the powers and authority of public office, because the private citizen dares not to open his mouth. It is unnecessary to add that the public does not only feed on abstract declarations concerning the existence and importance of basic freedoms, but it is also awake to their actual application in practice. The Supreme Court of the United States was aware, therefore, of the risk that arises from the blocking of criticism beyond the extent required by the law, however pure the motives may be. In the words of Sussman J (as his title was then) in H.C. 206/61 [14], at p. 1728:

 

"True democracy will be measured especially by the standard whether criticism will be published and heard, for without that, the regime of parliamentary democracy will fall into an abyss".

 

            What I have said here concerning the essential role of criticism applies, of course, to the bureaucratic system in general, and the fact is that in this case before us, too, the Petitioners altered their original decisions only as a result of the criticism that was expressed in the press. It matters not one iota that they were unwilling to admit at any stage that they had in fact erred. Restraint of criticism based on picayune demands concerning ancillary factual matters may create serious dangers far in excess of those which could result from the mixing of inaccurate ancillary facts into an article whose dominant character is legitimate criticism of the conduct of a public official in the performance of his duties, and which did not exceed the bounds of fair comment in those circumstances.

           

            Accordingly I would dismiss the Petition.

           

            Decided, by majority opinion, to void the judgment of the majority in the Appeal and to hold the Respondents liable as did the District Court. The Respondents are to pay, jointly, to the Petitioners, costs in the sum of IL30,000, in the Appeal and the Further Hearing together.

           

            Judgment given on 24 Av 5738 (August 27, 1978).

In the Supreme Court	HCJ 5931/06
Sitting as a Court of Civil Appeals	HCJ 2038/09

 

 

Before:	His Honor, President (ret.) A. Grunis Her Honor, President M. Naor His Honor, Deputy President E. Rubinstein His Honor, Justice S. Joubran Her Honor, Justice E. Hayut His Honor, Justice H. Melcer His Honor, Justice Y. Danziger
The Appellants in CA 5931/06:	1. Daoud Hattab Hussein 2. Alian Issa Azat 3. Saba Naji Suleiman Alarja 4. Jamal Naji Suleiman Alarja 5. Majed Naji Suleiman Alarja
The Appellants in CA 2038/09:	1. Dr. Walid Abd al-Hadi Ayad 2. Dr. Fatma Ayad 3. Mahmoud Abd al-Hadi Iyad 4. Haled Abd al-Hadi Ayad 5. Hiam Ayad 6. Ali Abd al-Hadi Ayad 7. Signe Breivik 8. Safa Abd al-Hadi Ayad 9. Hamad Ahmed Ayad 10. Fatma Abd al-Hadi Ayad 11. Hassan Salameh Ayad 12. Dr Higad Abd al-Hadi Ayad 13. Dr Fayez Ibrahim Abd al-Majid Hamad
V.
The Respondents in CA 5931/06:	1. Shaul Cohen
	2. Adv. Ami Fulman in his Capacity as Receiver
	3. Dan Levitt
	4. Robert Fleischer
	5. Yaron Meidan
	6. Shlomo Ohana
	7. Lilian Ohana
	8. Moshe Ben Zion Mizrahi
	9. The Head of the Jerusalem Land Registry
	10. The Custodian of Absentees' Property
The Respondents in CA 2038/09:	1. The Custodian of Absentees' Property
	2. The State of Israel – The Ministry Of Defence
	CA 5931/06: Appeal against the Jerusalem District Court's judgment of May 9, 2006 in CF 6044/04, awarded by The HonorableJudge R. Carmel
	CA 2038/09: Appeal against the Jerusalem District Court's judgment of October 2, 2008 in CF 6161/04, awarded by The Honorable Judge I. Inbar

 

 

On behalf of the Appellants in CA 5931/06 and CA 2038/09	Adv. Avigdor Feldman; Adv. Miri Hart; Adv. Shlomo Lecker; Adv. Ramsey Ketilat
On behalf of the First Respondent in CA 5931/06:	Adv. Haim Novogrotzki
On behalf of the Second Respondent in CA 5931/06	Adv. Ami Fulman
On behalf of the Third to Fifth Respondents in CA 5931/06:	Adv. A. Baron; Adv. Shirley Fleischer-Geva
On behalf of the Sixth and Seventh Respondents in CA 5931/06:	Adv. David Ohana
On behalf of the Eighth Respondent in CA 5931/06:	Adv. Eitan Geva
On behalf of the Ninth and Tenth Respondents in CA 5931/06, the Respondents in CA 2038/09 and the Attorney General:	Dr. Haya Zandberg, Adv.; Adv. Moshe Golan

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

 

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most exceptional circumstances, and that even then, only subject to the pre-approval of the Attorney General and a decision by the Government or a ministerial committee appointed by it. The Court’s holdings in this judgment will apply prospectively, and only where no statutory steps have been implemented in regard to the said properties.  The holdings of this judgment lead to the conclusion that the specific properties that are the subjects of the appeals are absentees’ property.  

 

 

JUDGMENT

 

President (ret.) A. Grunis

 

1.         The appeals before the Court focus on the question of whether properties in East Jerusalem, the rights in which are owned by residents of Judea and Samaria, constitute "absentees'" property within the meaning of the Absentees' Property Law, 5710-1950 (hereinafter referred to as "the Absentees' Property Law" or "the Law").

 

            This question arose in four cases that were heard jointly (CA 5931/06, CA 2250/06, CA 6580/07 and CA 2038/09). This Court held a considerable number of hearings in the appeals. In the course of hearing the appeals, various attempts were made to resolve the disputes between the parties. In two of the appeals, the need for the Court's decision did indeed become unnecessary. Thus, on February 13, 2014, the appeal in CA 2250/06 (Custodian of Absentees' Property v. Dakak Noha) was withdrawn after the parties reached a settlement agreement that was granted the force of a judgment. The appeal in CA 6580/07 (Custodian of Absentees' Property v. Estate of Abu Zaharaya) was dismissed on September 10, 2013, after the appellant gave notice that he was withdrawing the appeal. The time has now come to decide the remaining two appeals – CA 2038/09 and CA 5931/06.

 

The Background and Chain of Events

 

2.         The appeals before us concern properties in East Jerusalem that were determined to be “absentees’ property”, and whose owners were residents of Judea and Samaria.

 

CA 5931/06

 

3.         CA 5931/06 concerns  some five acres of land located in Beit Safafa on which fruit trees are planted (parcel 34 in block 30277) (hereinafter referred to as "Property 1"). Following to the Six Day War, the property was included in the territory to which the State of Israel extended its jurisdiction  on June 28, 1967 under the Law and Administration Order (No. 1), 5727-1967 (hereinafter referred to as "Order No. 1"). One half of the rights in the property were registered in the Jordanian Land Registry in the name of a resident of Beit Jala who sold them at the beginning of the 1970s to Jewish Israeli nationals. The rights of the Jewish purchasers were recorded in the Land Registry in 1972 and 1974. The remaining half of the rights in the property belonged to Appellants 3-5, who are residents of Beit Jala, and members of their family (hereinafter referred to as "the Alarja family"). In 1973, the majority of the Alarja family's rights in the property were sold (excluding the rights of one of its members, who owned one fourteenth of the parcel and is not party to this appeal). At the end of a chain of transactions, the rights came into the possession of Appellants 1 and 2, who are residents of Beit Safafa. Their applications to register the property in the Land Registry were declined on the ground that they had to apply to the Custodian of Absentees' Property (hereinafter referred to as "the Custodian"). In 1996, the Custodian informed them that he would not release the property.

 

4.         The Appellants filed a claim for declaratory relief in the Jerusalem District Court, to the effect that Property 1 was not absentees' property, or in the alternative, that the Custodian was obliged to release it (CF 6044/04,  Judge R. Carmel). The claim was dismissed in a judgment given on May 9, 2006, which held that the property was absentees' property. The court held that the properties in East Jerusalem of residents of Judea and Samaria are absentees' property despite the fact that the absenteeism is "technical". Hence, whether the owners of Property 1 resided in Egypt at the relevant time (as pleaded in respect of some members of the Alarja family) or were residents of Beit Jala, they were "absentees". Consequently, the rights in Property 1 were vested in the Custodian, and it was held that any disposition made in respect of it by Appellants 3-5 after June 28, 1967 (when it became "absentees' property") was invalid. The court dismissed the Appellants' plea of discrimination in comparison with the Jewish purchasers, whose rights in the property were registered in their name. In the court's opinion, the very registration of the rights did not mean that the registration was lawful, and the same could not constitute a "lever for the making of another mistake by another unlawful registration" (para. 13 of the judgment). In addition, the District Court disagreed with the judgment in OM (Jerusalem District) 3080/04 Dakak v. Heirs of Naama Atia Adawi Najar, Deceased (January 23, 2006, The Honorable Judge B. Okon, hereinafter:  the Dakak case), from which it appears that the residents of Judea and Samaria are not "absentees" according to section 1(b)(1)(ii) of the Law. We shall further refer to the Dakak case below (an appeal was filed against the judgment in the Dakak case in CA 2250/06, as noted in para. 1 above). The first appeal herein (CA 5931/06) was filed against the judgment in CF 6044/04.

 

5.         To complete the picture, it should be noted that other legal proceedings have been conducted in respect of Property 1. These were further to the deletion of the Alarja family's rights from the Land Registry in accordance with a judgment awarded in default of defense on the application of the Respondent 1 (CF (Jerusalem Magistrates) 21351/95, Judge I. Zur, partial judgment of January 31, 1996). The rights ofRespondent 1 in the property were then sold to Respondents 3-7. The Appellants filed lawsuits to set aside the said judgment and for declaratory relief according to which they are the owners of the property (CF (Jerusalem Magistrates) 10386/96, Judge. R. Shamia); CF (Jerusalem District) 1264/97, Judge B. Okon, the claim was struck out on March 23, 2003). The Custodian, for his part, filed a claim for declaratory relief to the effect that the Alarja family's rights in Property 1 constituted absentees' property, and that the transactions made in regard to its part of the property were void (CF (Jerusalem District) 1504/96,  Judge A. Procaccia). The claim was dismissed further to a settlement that was formulated between the Custodian and Respondents 1-7, which was approved by the court on March 5, 2002). It should be noted that in the latter proceedings the Appellants originally joined the position of the Custodian, including the plea that the property was absentees' property, but they then withdrew that plea with the court's approval. We would further add that in the period during which the proceedings have been heard, Appellants 1, 3 and 4 have unfortunately passed away.

 

CA 2038/09

 

6.         CA 2038/09 concerns 0.84 acres of land in Abu Dis (hereinafter referred to as "Property 2"), on which there is a residential building which, in 1964, was converted to a hotel known as the Cliff Hotel (hereinafter referred to as "the hotel"). The property is in the territory to which the State of Israel's jurisdiction and administration were extended in 1967. Its original owner (hereinafter referred to as "the deceased") was a resident of Abu Dis and a national of Jordan. The Appellants own the rights in the property by virtue of inheritance and law. On July 24, 2003, the Custodian issued an absentee certificate under section 30 of the Law in respect of Property 2. Further thereto, the Appellants filed a claim in the Jerusalem District Court for the award of declaratory relief to the effect that the property was not "absentees' property". In the alternative, they applied for the property to be released or, in the further alternative, they asked that the absentee certificate issued in respect of it be declared void (CF 6161/04, Judge I. Inbar). It should be noted that the parties were originally at issue as regards the property's location in Israel, but in the course of the proceedings they agreed that the property has been in the area of Israel since 1967. The claim was dismissed on October 2, 2008. It was held that, at the determining time, the deceased was resident in Judea and Samaria, namely outside the area of Israel, about 300 meters from the hotel, and he was not a resident of East Jerusalem. Such being the case, it was held that the property was "absentees' property", both according to section 1(b)(1)(i) of the Law (because the deceased was a national of Jordan) and by virtue of section 1(b)(1)(ii) of the Law (as he was a resident of Judea and Samaria) (the section is quoted in para. 13 below). The court disagreed with the interpretation laid down in Dakak, according to which the Law does not apply to the properties in East Jerusalem of the residents of Judea and Samaria. In the court’s view, weight should be given to the difficulties involved in the authority’s treating the residents of Judea and Samaria as "absentees" for the purpose of implementing the Law, but not in regard to the Law’s incidence. In addition, it was noted that the pleas concerning the modus operandi of the Custodian under the Law are within the jurisdiction of the High Court of Justice rather than the District Court. Furthermore, the Appellants' plea that the Custodian was precluded from exercising his powers because of a representation that the State had made to the effect that the property was not in Israel, which led to a change of their position to their detriment, was dismissed. The second appeal before us (CA 2038/09) is brought against the judgment in CF 6161/04.

 

7.         It should incidentally be noted that since 2003 there have been various developments in respect to Property 2 due to its proximity to the security fence. In that connection, part of the property was demolished with the consent of the parties, and the security forces then seized possession of it by virtue of the Emergency Land Requisition (Regulation) Law, 5710-1949. In 2013, part of the land was expropriated for security purposes by virtue of the Land (Acquisition for Public Purposes) Ordinance 1943 (hereinafter: "the Acquisition Ordinance"). These matters, which are beyond the scope of these proceedings, were tried in various different legal proceedings (see HCJ 1622/13, judgment of February 12, 2014, Deputy President M. Naor, and Justices E. Rubinstein and D. Barak-Erez); HCJ 1190/14, judgment of March 18, 2014, Deputy President M. Naor, and Justices E. Rubinstein and Y. Danziger; and ALA 6895/04,judgment of November 16, 2004 on the application for leave to appeal against the District Court's judgment in CF 6161/04 on an application for a provisional injunction)).

 

8.         Incidental to the proceedings before us, on July 18, 2013, the Special Committee under section 29 of the Law (hereinafter: "the Special Committee") deliberated on the release of the two properties involved in the appeals. As regards Property 1 (the property involved in CA 5931/06), the Respondents, represented by the State Attorney (hereinafter: "the Respondents"), stated that the Custodian was no longer in possession of the land, but only the proceeds therefrom, because the property had been purchased by third parties "in market overt conditions" (para. 31(a) of the Respondents' application of October 5, 2014). The Special Committee recommended the release of those proceeds to whichever of the Appellants were residents of Judea and Samaria and still living. As regards the Appellants who had died while the proceedings were being heard, supplementary particulars were requested, and as regards the other members of the Alarja family it was recommended not to release the proceeds of the property. As regards Property 2 (the property involved in CA 2038/09), the Special Committee recommended the release in specie of the part that had not been requisitioned for the construction of the security fence, and to release the proceeds for the part requisitioned only to the owners who are residents of Judea and Samaria, who are the ones who had held the property continuously until it had been requisitioned. Under the circumstances, the Respondents argued that the appeals had become theoretical and they moved for their dismissal. The Appellants, for their part, stated that they insisted on the appeals. According to them, if their position on the basic question concerning the application of the Law in their case were accepted, then it would not have been appropriate from the outset to view the properties as "absentees' property", and the Special Committee's decision was ultra vires. In addition, the Appellants in CA 2038/09 pleaded that in light of the security forces' seizure of Property 2 for the construction of the security fence, the decision concerning the release of the property had no real meaning. In our decision of December 28, 2014 we dismissed the application to dismiss the appeals.

 

The Parties' Arguments

 

9.         In both the appeals before us, the Appellants assert that it was not appropriate to view the properties concerned as "absentees' property". For the sake of convenience, we shall cite their basic arguments with regard to the application of the Absentees' Property Law together. We shall then separately consider their individual arguments in respect of the properties in dispute. In principle, the Appellants assert that the Law should not be applied to property in East Jerusalem whose owners, beneficiaries or holders (hereinafter referred to as "the owners of the rights") are residents of Judea and Samaria. According to them, those properties merely became "absentees' property" because of the unilateral extension of the law of the State of Israel to the areas where they are located. This occurred without the owners moving from the spot, and while they were subject to the authority and control of Israel near their property. According to them, the purpose of the Law was to contend with the unique circumstances that prevailed at the time of the State's establishment, which are now different, and the legislature could not have envisaged the reality created further to the Six Day War. According to them, the residents of Judea and Samaria have nothing at all to do with the "absentees" at whom the Law was aimed. The Appellants state that the various attorneys general over the years were also cognizant of these difficulties.

 

            They argue that the Law should, therefore, be interpreted against the background of its purpose and the historical context in which it was enacted, in the spirit of the Basic Laws, and in recognition of the need to protect their property, such that its provisions will not apply to the said properties. They propose a "pragmatic" interpretation of section 1(b)(1)(ii) of the Law, by  which the properties are prima facie considered absentees' property (the section is quoted in para. 13 below). This section deals with anyone who at any time during the period prescribed in the Law was "in any part of Palestine[1] outside the area of Israel". According to the Appellants, "outside the area of Israel" should be read as "the area outside Israeli control". That is to say that "the area of Israel" should not be viewed as relating only to the area in which the law, jurisdiction and administration of Israel has been applied. In fact, their argument is that since Judea and Samaria have been under the effective control of the State of Israel since 1967, it should not be regarded as "outside the area of Israel" for the purpose of the Law, and section 1(b)(1)(ii) of the Law therefore does not apply to the residents of Judea and Samaria. In addition, the Appellants propose adopting the interpretation that the District Court applied in Dakak, which we shall discuss further (in para. 26 below). The Appellants also propose viewing "the area of Israel" within the meaning of section 1(b)(1)(ii) of the Law solely as the area in which the law of the State of Israel applied at the time of the Law's enactment. According to the argument, that area does not include new territory over which the law, jurisdiction and administration of Israel have been applied or which is held by Israel, unless the provisions of the Law have been expressly applied to the additional territory. In the Appellants' opinion, the interpretations propounded are not contrary to section 3 of the Legal and Administrative Matters (Regulation) Law [Consolidated Version], 5730-1970 (hereinafter referred to as "the Legal Regulation Law"), from which it emerges that the properties of East Jerusalem residents that are located in East Jerusalem are not to be regarded as "absentees' property". (Section 3(a) of the said Law provides that "a person who, on the day of the coming into force of an application of law order, is in the area of application of the order and a resident thereof shall not, from that day, be regarded as an absentee within the meaning of the Absentees' Property Law, 5710-1950, in respect of property situated in that area".) According to them, the said section deals only with the residents of East Jerusalem, where Israeli law has been applied, and a negative arrangement is not to be inferred therefrom in respect of residents who are under Israeli control in Judea and Samaria. They believe that there is no foundation for the distinction between residents of Judea and Samaria, who are under Israeli control, and the residents of East Jerusalem. Alongside this, the Appellants plead that the Custodian is interpreting the broad provisions of the Law in a discriminatory and degrading way. Thus, for example, according to them, on a strict interpretation of the Law, Jewish residents of Judea and Samaria and members of the security forces who are staying there are also "absentees", but the Law is only applied to Arab residents of Judea and Samaria.

 

10.       The Appellants assert that applying the interpretation proposed leads to the conclusion that the properties involved in the appeals are not absentees' property. The Appellants in CA 5931/06 argue that the refusal to register their rights in Property 1 in the Land Registry, while the rights of the Jewish purchasers have been registered, amounts to discrimination. Moreover, they make arguments in respect of the conduct of the Custodian in their case, including in respect of the difference in his attitude toward them, compared with his attitude toward the Jewish purchasers. Consequently, they ask that we find that Property 1 is not absentees' property, or alternatively, that we order its release under section 28 of the Law, if it is indeed held that absentees' property is involved. In any event, they explain that if it is held that the property is not absentees' property, it will be necessary to conduct a factual enquiry with regard to the litigants' title thereto. The Appellants in CA 2038/09 plead that Property 2 was requisitioned contrary to the Attorney General's directives in  this regard. In addition, they wonder why it was necessary to make use of "such a Draconian and improper law", when he could have satisfied himself with the issuing of a seizure order for security purposes, the duration and purposes of which are limited, as was indeed later done (para. 29 of the summations of January 26, 2010). Moreover, they make various different arguments concerning the way in which the property was requisitioned and about the real purpose of the move. In that connection they plead laches and the Respondents' failure to act in respect of the property because of the representation that they made, according to which the property was in Judea and Samaria rather than Israel, which led to a detrimental change in the position of the Appellants in CA 2038/09. They also complain of the determination that the District Court is not competent to treat of the way in which the Law is implemented. In view of all the foregoing, they ask that we quash the requisition of Property 2 by virtue of the Law, and return it to them.

 

11.       The Respondents' position is that the Law applies to properties in East Jerusalem of the residents of Judea and Samaria. According to them, "area of Israel", in the sense of the Law, relates only to territory to which Israeli law has been applied. They warn against the serious consequences involved in adopting the interpretive approach advanced by the Appellants, which is similar to the interpretation laid down by the District Court in Dakak. According to them, the term "area of Israel" is mentioned both in respect of the location of the particular property (section 1(b)(1) of the Law) and in respect of the location of the owners of the rights in the property (section 1(b)(1)(ii) of the Law). Hence, the interpretation proposed might lead to properties in Judea and Samaria being regarded as "absentees' property" as well, when their owners are included in one of the other alternatives of section 1(b)(1) of the Law. According to them, the presumption is that this is the position in the case of many of the residents of Judea and Samaria, who were Jordanian nationals. Consequently, they assert that the Appellants' proposal will in any event be of no help to them. In addition, the Respondents object to the proposal to interpret the "area of Israel" as a "photograph" of the situation that existed at the time of the Law's enactment. According to them, there is no basis for that in the Law, and it is contrary to its purpose – to enable the transfer of ownership to the Custodian of any property situated in the area of the State and belonging to an "absentee", to be used for the development of the country. They also mention that the Law was enacted when the final boundaries of the State had not yet been formulated (and in fact the provision of section 1(b)(1)(ii) of the Law already appeared in the Absentees' Property Emergency Regulations, 5709-1948 of December 12, 1948 (hereinafter referred to as "the Emergency Regulations") which applied during the War of Independence and preceded the Law). Alongside this, the Respondents argue that a restrictive policy should be adopted when implementing the Law. According to them, the powers in the Law should not be exercised in respect of the properties at issue, unless the Attorney General's approval is first obtained. They contend that over the years a restrictive policy has indeed been adopted in the implementation of the Law, in accordance with the position of the Attorneys General. According to the Respondents, looking to the future, this modus operandi will lead to results similar to those that will be obtained as a result of finding that the Law does not apply in the instant cases. However, adopting it, as distinct from finding that the Law does not apply, is essentially of significance in respect of the past. This is because a finding that the Law does not apply in these cases means that all the acts that have been done in respect of properties of that type are void, with the substantial difficulties involved therein that they mention. In addition, the Respondents reject the Appellants' argument of discrimination in the implementation of the Law. According to them, the Custodian adopts a standard policy in respect of everyone lawfully moving outside the area of Israel, regardless of his ethnic origin. Thus, for example, the Law is not implemented in respect of State nationals, be they Jews or Arabs, even where the strict implementation of its provisions would necessitate an application to release their property.

 

            As regards the properties in dispute, the Respondents argue that, under the circumstances, the Special Committee's decision provides a proper answer to the Appellants. The Respondents reject the pleas of discrimination made in CA 5931/06 and emphasize that the improper registration in the past of the rights of Jewish purchasers does not justify similar registration now. According to them, until the 1970s the Custodian used to permit the sale of absentees' property to Israelis in order to facilitate matters for the residents of Judea and Samaria and the Gaza Strip, but that policy has been changed. In addition, they explain why the Custodian has not acted to cancel registration of the transactions made by the Jewish purchasers and they state that they did in the past act against the transfer of rights in Property 1 to the Respondent 1, who is a Jewish national of Israel. In addition, the Respondents plead that ruling on the competing rights in respect of the property involved in CA 5931/06 necessitates the review of factual and legal arguments that were not considered at the trial instance in view of its conclusion that Property 1 is "absentees' property".

 

12.       The other Respondents in CA 5931/06, the Jewish purchasers of the rights in Property 1, join in the Custodian's position on the question of principle with regard to the application of the Law. As regards the interpretation proposed by the Appellants, they state that since the Oslo Accords, effective control of a large proportion of Judea and Samaria is not held by the State of Israel and they argue that the said interpretation would necessitate equating the status of Judea and Samaria's residents with that of Israeli residents in other respects. They emphasize that they acquired the rights in Property 1 in good faith and for consideration, and they comment that the Appellants' domicile has never been established. According to them, the Appellants in CA 5931/06 are undermining the judgments that have been awarded in respect of Property 1, and their conduct in the various proceedings in respect thereof amounts to an abuse of process, inter alia in view of the change in their versions on the question of absenteeism.

 

Discussion and Decision

 

13.       The proceedings before us concern, as aforesaid, the question of whether properties in East Jerusalem, the owners of the rights in which are residents of Judea and Samaria, are "absentees' property" under the Absentees' Property Law. We would immediately emphasize that these proceedings address only such properties and not any other type of property. The point of departure for the discussion is the Absentees' Property Law, and we shall therefore commence by presenting its main provisions. "The portal" to the Law is contained in the definitions of "absentee" and "absentees' property". "Absentees' property" is defined in section 1(e) of the Law as follows:

 

            "'Absentees' property' means property, the legal owner of which, at any time during the period between Kislev 16, 5708 (November 29, 1947) and the day on which a declaration is published under section 9(d) of the Law and Administration Ordinance, 5708-1948, that the state of emergency declared by the Provisional Council of State on Iyar 10, 5708 (May 19, 1948) has ceased to exist, was an absentee or which, at any time as aforesaid, an absentee held or enjoyed, whether by himself or through another; but it does not include movable property held by an absentee and exempt from attachment or seizure under section 3 of the Civil Procedure Ordinance, 1938" [emphasis added – A.G.].

 

            The term "absentee" is defined in section 1(b) of the Law as follows:

 

             "(b) 'Absentee' means –

 

            (1) A person who, at any time during the period between Kislev 16, 5708 (November 29, 1947) and the day on which a declaration is published, under section 9(d) of the Law and Administration Ordinance, 5708-1948 that the state of emergency declared by the Provisional Council of State on Iyar 10, 5708 (May 19, 1948) has ceased to exist, was a legal owner of any property situated in the area of Israel or enjoyed or held it, whether by himself or through another, and who, at any time during the said period –

 

                        (i) was a national or citizen of the Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen, or

 

                        (ii) was in one of these countries or in any part of Palestine outside the area of Israel, or

 

                        (iii) was a Palestinian citizen and left his ordinary place of residence in Palestine

 

                                    (a) for a place outside Palestine before Av 27, 5708 (September 1, 1948); or

 

                                    (b) for a place in Palestine held at the time by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment;"

 

            It should be noted as regards the mention of "Trans-Jordan" in sections 1(b)(1)(i) and (ii) that in 1994 the legislature excluded from the application of the Absentees' Property Law certain properties, the owners of the right in which where nationals or citizens of Jordan. This was further to the peace agreement with Jordan (see section 6 of the Implementation of the Peace Agreement between the State of Israel and the Hashemite Kingdom Law, 5755-1995 (hereinafter referred to as "the Peace Agreement with Jordan Law")).

 

14.       According to the Absentees' Property Law, "absentees' property" is vested in the Custodian and the "absentees" lose their rights in it (see CA 8481/05 Lulu v. Custodian of Absentees' Property, para. 7 (February 28, 2007) (: the Lulu case)). The vesting of the property in the Custodian in accordance with the Law is not dependent upon his doing any act, and the rights in it automatically pass to him from the moment that the conditions for its being "absentees' property" are fulfilled (section 4 of the Law; CA 109/87 Makura Farm Ltd v. Hassan, IsrSC 47(5) 1, 29 (1993) (hereinafter: the Makura Farm case); CA 427/71 Faraj v. The State of Israel, IsrSC 27(1) 96, 101 (1972) (hereinafter:  theFara case"), in which it was stated that since automatic vesting is involved, the Custodian might not even be aware that a property has been vested in him; CA 4630/02 The Custodian of Absentees' Property v. Abu Hatum, para. L(3) (September 18, 2007) (hereinafter: the Hatum case; CA 8753/07 The Estate of Atalla Halil Bahij, Deceased v. Custodian of Absentees' Property, para. J (November 16, 2010)). It should be emphasized that in view of the prolonged state of emergency, which is still in force, the application of the Law continues and its operation has not yet ended. That is to say that anyone who has fulfilled or does in future fulfil the conditions for the definition of an "absentee" during the relevant period (namely since 1947 until the future end of the state of emergency) will be regarded as an "absentee" and his property in Israel will be vested in the Custodian. That is unless he has been excluded from the scope of the Law.

 

            The status of the Custodian in respect of absentees' property is the same as was that of the owner of the property, and he is entrusted with its management, care and supervision (section 4 of the Law). To that end, very extensive powers have been granted to him (see HCJ 6/50 Freund v. Supervisor of Absentees' Property, Jerusalem, IsrSC 4 333, 337 (Justice M. Dunkelblum) (1950) (hereinafter: the Freund case); Minutes of Meeting No. 123 of the First Knesset, 950, 956 (March 7, 1950) (hereinafter: the Minutes 123); Menahem Hoffnung, Israel – State Security Versus the Rule of Law, 162 (5761) (Hebrew) (hereinafter: Hoffnung)). In this connection it is provided that the Custodian may incur expenses and make investments in order to safeguard, maintain, repair and develop the property (section 7 of the Law); continue the management of a business on behalf of the absentee (section 8 of the Law, and sections 24 and 25, which concern a partnership of which an absentee is a member and properties of which absentees are co-owners); order the eviction of someone who is occupying the property without any right (section 10 of the Law); order the discontinuance of construction on the property and its demolition (section 11 of the Law). In addition, the Law requires that absentees' property be handed over to the Custodian (section 6 of the Law) and information in respect of it provided (section 21 of the Law). The Law imposes restrictions and prohibitions concerning the doing of various different acts with the property without the Custodian's consent (section 22 of the Law), and it provides that certain acts that have been done in respect of the property are null and void (section 23 of the Law). In addition, certain acts that have been done contrary to the Law are regarded as criminal offences, the penalty for which might amount to up to two years' imprisonment (section 35 of the Law). Although the Law restricts the Custodian's ability to sell and grant a long lease of immovable property that has been vested in him (section 19), it does permit him to transfer it to the Development Authority, subject to certain reservations. In this connection it should be noted that in an agreement that was made on September 29, 1953 between the Custodian and the Development Authority, all the immovable property vested in the Custodian was transferred to the Authority (according to The Government Yearbook 5715, 47). Similarly, the Law limits the liability that the Custodian bears for his acts (sections 16 and 29P of the Law), and lays down lenient evidential arrangements for him (section 30 of the Law; Makura Farm, pp. 12-13). The Law further provides that transactions made between the Custodian and another person in good faith will not be invalidated even if it is established after the fact that the property was not vested property (section 17 of the Law). Alongside this, the Law lays down various mechanisms that are apparently aimed at mitigating its serious effects. Thus, the Custodian has been authorized, in certain circumstances, to "relieve" a person of his "absenteeism" (section 27 of the Law) and to release properties that have been vested in him (sections 28-29 of the Law; for the significance of such release, see CA 263/60 Kleiner v. Director of Estate Tax, IsrSC 14 2521 (1960) (hereinafter: the Kleiner case; for further discussion of several of the decisions that have been given by the Special Committee, including its recommendation for a sweeping release of properties in certain cases, see Haim Zandberg, Israel Land, Zionism and Post-Zionism, 83-83 (2007) (Hebrew)).

 

15.       As we see, the Law grants the Custodian very extensive powers and its overall provisions create a far-reaching arrangement, at the center of which is the expropriation of the rights in absentees' property from the owners and their vesting in the Custodian. This arrangement should be understood against the special circumstances that led to its enactment. At the end of the War of Independence, and in fact even during it, the young State of Israel faced a complex, new reality. This was, inter alia, due to the enlarged area under its control and the mass departure of Arab residents, leaving behind them extensive property, abandoned and vulnerable to intrusion and unruly squatting, on the basis of "might makes right" (see Eyal Benvenisti and Eyal Zamir, “Private Property In the Israeli-Palestinian Peace Settlement”, Research of the Jerusalem Institute for Israel Studies, 77, 7-9 (1998) (Hebrew) (hereinafter: Benvenisti and Zamir, Private Property)). These challenges necessitated a rapid legal answer that would make it possible to settle the rights in, and deal with, those properties. Indeed, in the first years of the State a series of legal arrangements was laid down to contend with the complex reality that had arisen (for further reading, see for example Shlomo Ifrach, “Legislation Concerning Property and Government in the Occupied Territories”, 6 Hapraklit 18 (1949) (Hebrew); Hoffnung, pp. 159-168; Eyal Zamir and Eyal Benvenisti, "Jewish Land in Judea, Samaria, the Gaza Strip and East Jerusalem”, Research of the Jerusalem Institute for Israel Studies, 52, 28-29 (1993) (Hebrew) (hereinafter: Zamir and Benvenisti, Jewish Land)). One of the major pieces of legislation enacted in this context is the Absentees' Property Law, which was enacted in 1950 and replaced the Emergency Regulations that had been promulgated in this respect and that applied during the War of Independence.

 

16.       The Law was designed to regulate the administration of "absentees'" property by the State authorities, and make it possible to safeguard it against lawlessness (see, Minutes of Meeting No. 119 of the First Knesset, 872 (February 27, 1950) (hereinafter:  Minutes 119); CA 58/54 Habab v. Custodian of Absentees' Property, IsrSC 10 912, 918 (1956); Freund, p. 337). The purpose of the Law was not expressly defined in it and it did not prescribe for whose benefit "the absentees' property" should be safeguarded (see Minutes 123, p. 952; Shlomo Ifrach, “Thoughts on the Absentees' Property Law, 5710-1950”, 9 HaPraklit 182 (5713) (Hebrew)). The case law has held that the purpose of the Law is merely to safeguard the property for the benefit of its absentee owners, but it is also aimed at achieving the State's interests in the property, including, so it has been held, "the ability to utilize it to promote the country's development, while preventing its exploitation by anyone who is an absentee within the meaning of the Law, and the ability to hold it (or its proceeds) until the formulation of political arrangements between Israel and its neighbors, in which the fate of the property will be decided on the basis of reciprocity between the countries" (HCJ 4713/93 Golan v. Special Committee under Section 29 of the Absentees' Property Law, IsrSC 48(2) 638, 644 (1994) (hereinafter: the Golan case). For a discussion of the Law's objectives, see also CF (Haifa District) 458/00 Bahai v. Custodian of Absentees' Property, para. 26 (Judge I. Amit) (September 19, 2002) (an appeal was filed against the judgment, but the judgment in the appeal did not require an analysis of the Law's purpose (CA 9575/02 Custodian of Absentees' Property v. Bahai (July 7, 2010) (hereinafter: the Bahai case)). This approach is also consistent with statements made at the time the Law was enacted (see Minutes 119, pp. 869-870).

 

            It should be noted that the wording and title of the Law prominently emphasize the absence of the property owners (the "absentees"). Nevertheless, the background that led to its enactment and the nature of the arrangements prescribed in it might indicate that, in fact, the Law sought to determine the legal position in respect of the properties in Israel of nationals and residents of the enemy states. In any event, it appears that the Court has gained this impression in several cases dealing with these matters (see Golan, p. 645; HCJ 99/52 Anonymous v. Custodian of Absentees' Property, IsrSC 7 836, 839 (1953) (hereinafter: the Anonymous case); Kleiner, p. 2544 (per Justice A. Witkon), where it was stated that the Law is similar in character to the legislation on trade with the enemy, the consequence of which is the expropriation of the ownership of, and rights in, the property and their vesting in the Custodian. Support for this concept can also be found in the statement by the Minister of Justice, D. Libai, in the debate on the Peace Agreement with Jordan Bill (Minutes of Meeting No. 312 of the 13th Knesset, 5658 (January 23, 1995) (hereinafter: Minutes 312)). See also Benvenisti and Zamir, Private Property, pp. 13-14; para. 64 of the notice of appeal dated July 13, 2006 in CA 5931/06. Nevertheless, in the Appellants' summations in CA 2250/06 (the Respondents herein) to which the latter referred, it was asserted that the definition of "absentee" in the Law does not necessarily reflect a person's connection with an enemy state).

 

The Broad Application of the Absentees' Property Law

 

17.       Against the background of the exceptional circumstances in which the Law was enacted, it can perhaps be understood why it is worded so sweepingly and strictly. In any event, the way it is drafted, and especially the broad definitions of its underlying terms – with the emphasis on "absentee", "property" and "absentee property" – lead to the very extensive application of the Law (see HCJ 518/79 Cochrane v. Committee under Section 29 of the Absentees' Property Law, 5710-1950, IsrSC 34(2) 326, 330 (per Justice H. Cohn) (1980) (hereinafter: the Cochrane case; see also Minutes 123 and Minutes 119, pp. 870-872, which discussed the problems involved in the broad definition of "absentee", which embraces very many cases). Indeed, about 35 years ago this Court indicated that the broad definition of "absentee" is likely to lead to the Law's catching more and more people in its net, sometimes unnecessarily and contrary to its purpose. In the words of Justice H. Cohn, in Cochrane (p. 330):

 

            "In the geopolitical circumstances that existed upon the establishment of the State and at the time of the Law's enactment, it was necessary to define 'absentee' very broadly and sweepingly – despite the risk that the definition would include people who, in fact, had no legal connection with Israel's enemies, physically, ideologically or otherwise. And since the definition remains in force until the end of the state of emergency that has prevailed in Israel since the establishment of the State (section 1(b)(1) of the Law), innocent citizens who have nothing to do with absenteeism might frequently be added to the multitude of 'absentees' as defined in the Law (for example someone who is in part of 'Palestine' outside the area of Israel, - ibid., para. (ii))".

 

18.       The Law's definitions of the various terms are likely to lead to rigid results that are inconsistent with common sense or even the purpose that the Law was intended to serve. Let us demonstrate this by means of several examples – and it should be emphasized that I do not mean to lay down strict rules in respect of the cases that will be referred to,  which are cited merely for the purposes of illustration. According to the Law, it suffices if - at any time in the period between November 29, 1947 and the end of the state of emergency that was declared by the Provisional Council of State in 1948 – the owner of the rights fulfilled one of the alternatives in section 1(b)(1) of the Law (see sections 1(b) and 1(e) of the Law) for property that is in the area of Israel to be regarded as absentees' property. As aforesaid, since a declared state of emergency has existed in Israel ever since the State's establishment, any property in Israel that has been purchased in the last dozens of years by an "absentee" is, according to the wording of the Law, absentees' property. For example, a property in Israel that is purchased today by a national or subject of any of the countries mentioned in section 1(b)(1) of the Law (other than Jordan, as mentioned at the end of para. 13 above) will be regarded as "absentees' property" and immediately be vested in the Custodian. The self-evident difficulty involved in such a situation is aggravated in view of the broad definition of "property" in the Law, which includes "immovable and movable property, monies, a vested or contingent right in property, goodwill and any right in a body of persons or its management" (excluded from "absentees' property" are "movable property held by an absentee and exempt from attachment or seizure under section 3 of the Civil Procedure Ordinance, 1938" (section 1(e) of the Law)). As prescribed, "property" includes, among other things, a right to the repayment of a debt, an obligatory right to receive land, bearer shares and also contractual rights and any right that is enforceable by a lawsuit (see Bahai, paras. 7-9 and the references there). One has to wonder about the logic of the result whereby a debt that is due to an "absentee" in respect of a transaction made by him in relation to property in Israel, for example, will automatically be vested in the Custodian (see MF 89/51 Mituba Ltd v. Kazam, IsrSC 6 4 (1952), where it was held that a debt might be absentees' property. See also CA 35/68 Mualem v. Custodian of Absentees' Property, IsrSC 22(2) 174 (1968) (hereinafter: the Mualem case), which concerned bills of exchange received further to a transaction made in Iraq that were endorsed by a resident of Iraq in favor of an Israeli national. It was stated in the judgment that when the bills, which were the property of an Iraqi resident, arrived in Israel they became absentees' property (ibid., pp. 176-177)). In addition, the simple language of the Law might lead to the conclusion that the absenteeism of the holder of any proprietary right in property suffices to make it "absentees' property". This is so even if the other holders of the rights therein are not absentees, and even if his right is "inferior" to their right. Thus, for example, the very fact that someone who "enjoyed" the property was an absentee apparently suffices for it to be regarded as "absentees' property", even if its owner is not an absentee (see the Makura Farm case, p. 15).

 

            Other difficulties arise in view of the fact that "absentee" is an ongoing "status" that has no end (unless expressly otherwise prescribed or a step is initiated to release the property or its owners from their absenteeism. See CA 110/87 Elrahim v. Custodian of' Absentees' Property (August 22, 1989) (hereinafter: the Elrahim case)). Properties in Israel of whoever has fallen within the scope of the conditions for "absentee" at any time in the period between the end of 1947 and the end of the state of emergency, which is still continuing as aforesaid, are likely to be regarded as "absentees' property" and be denied him. As aforesaid, there is no automatic release from this situation, apart from a few exceptions that have been specifically defined in the Law. For example, a person will be regarded as an absentee merely because, at some stage during the said period, he was a national or citizen of Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen or "was" there (as regards Trans-Jordan, see the end of para. 13 above). Hence, according to a strict interpretation of the Law, the properties in Israel of immigrants from Egypt, Iraq or Yemen that were purchased by them before or after they immigrated to Israel, are "absentees' property" (and indeed, that was the case in the Faraj case; see also Mualem. Nevertheless, it does appear that section 28A of the Law, which is mentioned in the next paragraph, resolves that difficulty, at least in respect of properties that have been purchased since arrival in Israel). That is the law, at least prima facie, in respect of the properties in Israel of all those who have visited the said countries, regardless of the purpose or length of the visit. Thus, for example, anyone who went to those places on behalf of the State, for example soldiers in battle, are likely to be regarded as "absentees" (reality has proven that the question is not theoretical; see the Anonymous case, in which a Palestinian citizen, who left Israel for an enemy country as an emissary of one of the State authorities, was regarded as an "absentee"!!). Is it reasonable or acceptable that in the circumstances described, those people should lose their rights in their property in Israel?!

 

19.       It should be noted that a solution has been provided in the Law for at least some of the difficulties arising from its broad wording. A salient example is the possibility of releasing absentees' property (sections 28-29 of the Law) and giving written confirmation that a particular person is not an "absentee" (section 27 of the Law. For a discussion of whether the section applies where a person can be defined as an absentee under section 1(b)(1)(iii) of the Law and also in accordance with one of the other alternatives prescribed in the section, see Anonymous and Bahai, paras. 11 and 13). It should be noted that according to Justice H. Cohn in the Cochrane case, those powers are the solution to the difficulties involved in the definition of "absentee" mentioned in the previous paragraphs (ibid., p. 330) (this was the position of the Court in Elrahim as well). Another example is the provision of the Law that was added in 1951, the purpose of which was to enable "absentees" who are duly present in the area of Israel to purchase rights in properties that did not constitute absentees' property on the date the Law took effect (section 28A of the Law; see Minutes of Meeting No. 234 of the First Knesset, 1254, (March 6, 1951)). Nevertheless, the Law is still far from being free of difficulties. One of the reasons is the fact that in the many years since the Law was enacted, significant geopolitical changes have occurred in the environment of the State of Israel, including Israel's wars and diplomatic arrangements that have been made with some of its neighbors. At the same time, substantial changes have also been made in Israeli law's treatment of human rights. In fact, today's circumstances are materially different from those that existed at the time of the Law's enactment some 65 years ago. Nevertheless, and despite the fact that the Law's application has been continuing all that time, not all the necessary adjustments to the changing times and circumstances have been made. This finds conspicuous expression with regard to property located in East Jerusalem, and in particular, property owned by residents of Judea and Samaria, as is the case in the appeals  before us. Before we go on to consider the specific problems arising in these cases, another note is obliged.

 

20.       In view of the foregoing, an argument might be made with regard to the invalidity of some of the Law's provisions for constitutional reasons. In other words, it could be argued that the provisions of the Law infringe the absentees' rights and in particular their constitutional right to property (section 3 of Basic Law: Human Dignity and Liberty), and that it does not fulfil the criteria that have been laid down in case law on the limiting paragraph of the Basic Law (section 8). In my opinion, it is certainly possible that at least some of the arrangements in the Law, were they enacted today, would not meet the constitutional criteria. Nevertheless, in the instant case, the provisions of the limiting paragraph are not such as to serve or to alter the conclusion with regard to the application of the Law in the cases under consideration here. This is in view of the “Validity of Laws” rule in section 10 of Basic Law: Human Dignity and Liberty, according to which the Basic Law does not affect the validity of any law that existed prior to its entry into force. This provision does not make it possible to find that any provision of the Law is void (see, for example, CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589, 632-633 (per Justice T. Strasberg-Cohen), 642-643 (per Justice M. Cheshin), 653 (per President A. Barak (1995) (hereinafter: the Ganimat case); HCJ 4264/02 Ibillin Breeders Partnership v. Ibillin Local Council, para. 10 (December 12, 2006)).

 

The Absentees' Property Law and the Properties in East Jerusalem

 

21.       Section 1(b) of the Law imposes two conditions for a person to be an "absentee": the first relates to the particular property and contains the requirement that the property is situated "in the area of Israel". In this respect, "the area of Israel" has been defined as an area where the law of the State of Israel applies (section 1(i) of the Law; for a discussion of that term, see Benjamin Rubin, “The Sphere of the Law's Application, the Area of the State and Everything in Between”, 28 Mishpatim, 215, 226-227 (5755) (Hebrew) (hereinafter: Rubin)). The second condition relates to the owner of the rights in the property (the "absentee"). The "absentee" is someone who falls within one of the alternatives of section 1(b)(1) of the Law. The first alternative is defined according to the person's nationality or citizenship, and it concerns the citizens or nationals of Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen (section 1(b)(1)(i) of the Law). The second alternative is defined on the basis of the location of the "absentee" and relates to anyone who was in any of those countries or "in any part of Palestine outside the area of Israel" (section 1b)(1)(ii) of the Law). The third alternative relates to Palestinian citizens who left their ordinary place of residence in Palestine for a place outside Palestine in the circumstances set out in section 1(b)(1)(iii) of the Law (section 27 of the Law nevertheless lays down cases in which an absentee will be exempted from his "absenteeism" according to this alternative; for the controversy that arose between Justices M. Landau and Y. Olshan in respect of this section and the characteristics of the different alternatives, see the Anonymous case).

 

22.       With regard to properties that are situated in East Jerusalem, until 1967 they were not "in the area of Israel", within the meaning of the Absentees' Property Law, namely the area in which the law of the State of Israel applies (section 1(i) of the Law). Consequently, until then they were not absentees' property. That changed with the Six Day War. In the War, East Jerusalem passed into the control of the State of Israel, and on June 28, 1967 the application of Israeli law, jurisdiction and administration was declared (see Order No. 1 that was promulgated by virtue of section 11B of the Law and Administration Ordinance, 5708-1948 (hereinafter: "the Law and Administration Ordinance"). See also section 5 of Basic Law: Jerusalem, Capital of Israel, which prescribes that East Jerusalem is included within the boundaries of the Jerusalem Municipality. See also HCJ 282/88 Awad v. Prime Minister and Minister of the Interior, IsrSC 42(2) 424, 429 (1988) (hereinafter:as the Awad case; CA 4664/08 Mishal v. Custodian of Absentees' Property, para. 8 (hereinafter: the Mishal case); HCJ 1661/05 Hof Aza Regional Council v. Knesset, IsrSC 59(2) 481, 512-513 (2005) (hereinafter:the Hof Aza Council case); Rubin, pp. 231-234; Benvenisti and Zamir, Private Property, pp. 23-24). In view of this, property in East Jerusalem must, of course, be regarded as situated in "the area of Israel" for the purpose of the Absentees' Property Law (see CA 54/82 Levy v. Estate of Afana Mahmoud Mahmoud (Abu-Sharif), Deceased, IsrSC 40(1) 374, 376 (1986) (hereinafter: the Levy case); HCJ 98/68 Hadad v. Custodian of Absentees' Property, IsrSC 22(2) 254 (1968)).

 

23.       Consequently, all that remains for the owners of rights in property in East Jerusalem to be regarded as "absentees" is for one of the alternatives in section 1(b)(1) of the Law to be fulfilled. In view of the broad definitions in the Law, and given the fact that many of the residents of East Jerusalem were nationals or citizens of Jordan before 1967, it appears that this condition is fulfilled in many cases, and the properties of those people in East Jerusalem should be regarded as "absentees' property". In this context it should be borne in mind that after the Six Day War not only the property in East Jerusalem passed into the area of Israel and under its control, but also the local residents (the residents of East Jerusalem who were included in the census that was conducted in June 1967 obtained the status of permanent residents in Israel and could, in certain conditions, obtain Israeli nationality). As a result, quite a strange situation arose in which the Law applied both to properties and their owners in "the area of Israel". In fact, a person could, for example, remain at home without taking any action or changing his situation or the state of the property, and his home, where he resided in East Jerusalem, became "absentees' property". This difficulty was resolved in respect of the residents of East Jerusalem with the enactment of the Legal Arrangements Law in 1970 (or to be more precise, in 1968, upon enactment of the Legal and Administrative Matters (Regulation) Law, 5728-1968, which preceded it). Section 3 of the 1970 statute prescribes as follows:

 

                        "(a)     A person who on the day of the coming into force of an application of law order [namely an order under section 11B of the Law and Administration Ordinance – A.G.] is in the area of application of the order and a resident thereof shall not, from that day, be regarded as an absentee within the meaning of the Absentees' Property Law, 5710-1950, in respect of property situated in that area.

 

(b)       For the purposes of this section, it shall be immaterial if, after the coming into force of the order, a person is, by legal permit, in a place his presence in which would make him an absentee but for this provision".

 

            The section therefore excludes whoever were residents of East Jerusalem on June 28, 1967 – when Order No. 1 was issued, whereby the law, jurisdiction and administration of the State of Israel were applied to East Jerusalem – from the definition of "absentees" in respect of their property in East Jerusalem (see Mishal, para. 8; Awad, p.429; Benvenisti and Zamir, Private Property, p. 14, 26-28; Zamir and Benvenisti, Jewish Land, p. 87). In addition, the Absentees' Property (Compensation) Law, 5733-1973 (hereinafter: "the Compensation Law") was later enacted to enable residents of Israel, including the residents of East Jerusalem, who are "absentees", to claim compensation for certain property vested in the Custodian (see Zamir and Benvenisti, Jewish Land, pp. 90-91; Benvenisti and Zamir, Private Property, pp. 14, 28-29).

 

The Case of Judea and Samaria Residents

 

24.       Let us now turn to the case before us, of residents of Judea and Samaria who have rights in property in East Jerusalem. As aforesaid, for the purpose of the Law, these properties are located in the area of Israel. The first condition for their "absenteeism" is therefore fulfilled. The second condition is that the owners of the rights in them fall within the scope of one of the alternatives of section 1(b)(1) of the Law. The alternative relevant to the instant case is that mentioned at the end of section 1(b)(1)(ii) of the Law, that an absentee is someone who at any time during the relevant period "was… in any part of Palestine outside the area of Israel." In Judea and Samaria, unlike East Jerusalem, the law, jurisdiction and administration of the State of Israel have never been applied (see, for example, HCJ 390/79 Dwikat v.  Government of Israel, IsrSC 34(1) 1, 13 (1979); Hof Aza Council, pp. 514-560; and also Rubin, pp. 223-225). It is, of course, therefore not the "area of Israel", which is defined in section 1(i) of the Law as "the area in which the law of the State of Israel applies". Some 30 years ago, this Court ruled in Levy that Judea and Samaria is "part of Palestine" within the meaning of section 1(b)(1)(ii) of the Law (ibid., p 381 (Justice A. Halima); cf Crim. App. 5746/06 Abbass v. State of Israel, paras. 5, 8-10 (July 31, 2007), where the meaning of the same expression in the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 was considered in the particular context of that statute). It should be noted that in Levy the Court dismissed the plea that since Judea and Samaria is actually occupied by the IDF, it should be regarded as held territory in accordance with the Area of Jurisdiction and Powers Ordinance, 1948 and therefore also as an "area of Israel" for the purpose of the Absentees' Property Law. The Court's conclusion in the Levy case was that properties in East Jerusalem that were owned by the residents of Judea and Samaria should be regarded as "absentees' property". This concept is also reflected in later case law of this Court (see the Golan case, where the Court acted on the assumption that such property is "absentees' property").

 

25.       The said conclusion with regard to property in East Jerusalem does not derive merely from the wording of the Law. It appears that this result also reflects the intention of the legislature, at least since the Legal Regulation Law was enacted. As aforesaid, while the residents of East Jerusalem were excluded by the Legal Regulation Law from the application of the Absentees' Property Law in respect of property located there, a similar step was not taken in respect of the residents of Judea and Samaria. In my opinion, the significance of that cannot be avoided. The very fact that the legislature considered it necessary to prescribe an express arrangement excluding the residents of East Jerusalem from the scope of the Absentees' Property Law (from the date prescribed) demonstrates that, according to it, without such a provision the Law would have applied to them. In other words, this indicates that in its opinion, the Law also applies where the particular property or the owner of the rights in it became "absentee" after the Law's enactment, namely after 1950. This assumption also finds expression in the need that the legislature saw expressly to exclude certain properties from the application of the Absentees' Property Law further to the peace agreement made with Jordan in 1994 (see section 6 of the Peace Agreement with Jordan Law; and also Minutes 312, p. 5658. See also Abu Hatum, para. K.) This approach is in fact consistent with the view that the application of the Law is ongoing and has not yet reached an end (see also Golan, p. 645, where it was stated that "the assumption embodied in the Law is that the fate of absentees' property will be determined in future as a possible consequence of political settlements between the State of Israel and its neighbors". It should also be noted that at the time the Law was enacted, it was stated that it was necessary to enact a permanent law instead of the Emergency Regulations because "it was clear to the members of the committee that even after the emergency ends we shall have to deal with the absentees' property…" (Minutes 119, p. 868)). In view of the foregoing, in my opinion it is not possible to accept the argument that the definition of "the area of Israel" in the Law meant only the area in which Israeli law applied at the time of the Law's enactment, something of a "photograph" or freeze of a given situation that cannot change with time. The same applies to the argument that an express provision of the Law is necessary for it to apply to territory added to the area of the State of Israel after its enactment. The foregoing examples might demonstrate that, in truth, the opposite is the case. In addition, the failure of the legislature to prescribe a broader arrangement in the Legal Arrangements Law or another statute reflects, as I understand it, a conscious decision not to exclude others from the application of the Absentees' Property Law, like for example the residents of Judea and Samaria. That is also the impression that was gained by this Court in Levy (see ibid., pp. 382-383 (per Justice A. Halima). That is also the opinion of the learned authors Zamir and Benvenisti (see Benvenisti and Zamir, Private Property, p. 27; Zamir and Benvenisti, Jewish Land, p. 87)). Accordingly, I do not consider it possible to depart from the case law according to which the Absentees' Property Law does indeed apply to property in East Jerusalem, whose owners are residents of Judea and Samaria. It appears that any other finding would be contrary to the plain meaning of the Law and the intention of the legislature.

 

26.       In this regard, a few words should be devoted to the Jerusalem District Court's judgment in the Dakak caseJudge B. Okon). In that judgment the court considered the difference between the reality in which the Absentees' Property Law was enacted and the circumstances that have arisen in Judea and Samaria following the Six Day War. According to him, "it is difficult to conceive" that the Law should be applied to residents who are under "effective Israeli control" rather than hostile control (ibid., paras. 4-5 of the judgment). Such being the case, it was held that section 1(b)(1)(ii) of the Law, which concerns a person who is "in any part of Palestine outside the area of Israel", does not apply to a resident of areas "that are actually subject to Israeli military control, as distinct, for example, from areas under the military control of a country mentioned in section 1(b)(1)(i) of the Law" (ibid., para. 6). An appeal was filed against the said judgment (CA 2250/06, which is one of the appeals joined in these proceedings (see para. 1 above)). Ultimately, as aforesaid, the appeal was withdrawn after a settlement agreement was reached between the parties. Nevertheless, since the parties in the instant case did consider the said judgment, we have seen proper to explain our reservation as regards the way in which section 1(b)(1)(ii) of the Law was interpreted in Dakak. The said interpretation is not consistent with this Court's findings in Levy or the underlying assumption relied upon in Golan. This fact, per se, raises difficulty (as regards the departure of the trial courts from a binding precedent of the Supreme Court, see, for example, ALA 3749/12 Bar-Oz v. Setter, paras. 18-20 of my opinion (August 1, 2013)). In addition, in my opinion, the interpretation also raises difficulties with respect to the crux of the matter for the reasons detailed above. Moreover, there is substance to the Respondents' arguments that the said interpretation will in any event not exclude from the application of the Law the residents of Judea and Samaria who were Jordanian nationals or citizens or were there at any time since 1947 and have property in Israel. This is in view of the other alternatives of section 1(b)(1) of the Law. According to the Respondents, it appears that a considerable proportion of the residents of Judea and Samaria are involved. However, the interpretation that "extends" the "area of Israel" beyond that provided in the Law raises substantial difficulties. This is in view of the clear wording of the Law, which expressly provides in section 1(i) that the area in which the law of the State of Israel applies is involved, and for other substantial reasons. Moreover, a finding of this type raises complex issues in respect of the exact nature of the terms "area of Israel" and "effective control". Thus, for example, the question could arise as to whether a distinction should be made among the areas of Judea and Samaria that are termed "areas A, B and C", according to the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip that was made between the State of Israel and the PLO on September 28, 1995 (for a discussion in a different context on the question of whether a certain area is under the control of the IDF further to the division of the said territories, see, for example, HCJ 2717/96 Wafa v. Ministry Of Defense, IsrSC 50(2) 848 (1996)). This complex question gained no consideration by those in support of using the term "effective control" in the context under discussion. In any event, it appears that this is not the proper place to decide those questions. Moreover, one should be aware that such an interpretation might lead to the Law's application to property not included in it until now. This is because the Law applies to properties in "the area of Israel" (section 1(b)(1) of the Law.) Hence, finding that Judea and Samaria is part of "the area of Israel" might lead to properties located there also becoming "absentees' property".

 

27.       In view of all the foregoing, there is no alternative but to conclude that the Absentees' Property Law does apply to properties in East Jerusalem, the rights in which are owned by residents of Judea and Samaria. However, that is not the end of it. We must consider the way in which the Law is implemented in cases like these.

 

Exercise of the Powers under the Law in the Cases under Discussion

 

28.       The finding that the said properties are "absentees' property" is very problematic, not only at the level of international law but also as regards administrative law. The Respondents do not deny this either. It should be borne in mind that those involved are residents of Judea and Samaria who have become "absentees", not because of any act done by them but because of the transfer of control of East Jerusalem to Israel and the application of Israeli law there. In addition, persons are not involved who are under the control of another state, and they are in areas over which Israel has control – albeit only certain control. In this context, we should bear in mind that in the course of the Law's enactment it was explained that section 1(b)(1)(ii) of the Law meant "people who are in fact not in the area of the State of Israel" (as the Chairman of the Finance Committee, D.Z. Pinkas, MK, said in Minutes 119, p. 868). In this sense, there is indeed a certain similarity between the residents of Judea and Samaria and the residents of East Jerusalem, although an analogy should clearly not be drawn between the cases in view of the difference in the legal status of the two areas. It appears that there is indeed a difference between the case of residents of Judea and Samaria and the case of those for whom the Absentees' Property Law was intended (see also Cochrane, p. 330, where Justice H. Cohn mentioned a person who is "in part of Palestine outside the area of Israel" as one of the cases in which the Law applies to someone who has nothing whatsoever to do with absenteeism). Indeed, there are differences between the residents of Judea and Samaria, the citizens or nationals of the hostile states in section 1(b)(1)(i) of the Law, and a person who deliberately "left his ordinary place of residence in Palestine" in the circumstances described in subparagraph (iii). In fact, the absenteeism of the residents of Judea and Samaria in respect of their property in East Jerusalem derives from the broad wording of the Law and its continuing application, due to the prolonged state of emergency (see paras. 14 and 18 above). It is difficult to believe that this was the type of case intended by the Law, which was, as aforesaid, enacted against the background of specific and exceptional events. The results of applying the Absentees' Property Law in these cases is also particularly harsh having regard to the fact that the residents of Judea and Samaria are not entitled to compensation for their properties that are vested in the Custodian. This is because the right to claim compensation by virtue of the Compensation Law is granted only to residents of Israel (section 2 of the Compensation Law; see also Benvenisti and Zamir, Private Property, pp. 14, 28-29. It must be said that there is a certain similarity between denying a person's rights to his property because it has become absentees' property and the expropriation of land for public purposes (in which connection it should be noted that the view is expressed in the literature that laying down the ability to obtain compensation under the Compensation Law in the case of Israeli residents reinforces the argument that underlying the failure to release absentees' property is a rationale similar to that underlying the acquisition of land for public purposes (see, ibid., p. 14). See also Sandy Kedar, “Majority Time, Minority Time: Land, Nation and the Law of Adverse Possession in Israel,” 21 (3) Iyunei Mishpat  665, 727 (1998)). Nevertheless, while the grant of compensation is one of the major foundations of modern expropriation law (see, for example, CA 8622/07 Rotman v. Ma'atz - Israeli National Public Works Department Ltd, paras. 65-71 of the opinion of Justice U. Vogelman (May 14, 2012)), as regards absentees resident in Judea and Samaria, the legislature has supplied no statutory arrangement to obtain compensation for the property taken from them. This further underlines the difficulty involved in applying the Absentees' Property Law in respect of them. This problem has not been ignored by the various different attorneys general over the years either. Thus, inter alia, on January 31, 2005, the Attorney General, M. Mazuz, wrote to the Minister of Finance, B. Netanyahu, who was the person responsible for the implementation of the Law (hereinafter: "the Mazuz Directive") as follows:

 

            "The absenteeism of property in East Jerusalem of residents of Judea and Samaria is of a technical character since they became absentees because of a unilateral act taken by the State of Israel for a different purpose, when both the properties and their owners were under the control of the State of Israel, and where it would appear that the purposes of the Law are not being fulfilled here. Involved are, in fact, 'attendant absentees', whose rights in their property have been denied due to the broad technical wording of the Law. Moreover, as regards residents of Judea and Samaria whose property in East Jerusalem has become absentees' property, the result is particularly harsh because applying the Law means the denial of the property without any compensation, because the Absentees' Property (Compensation) Law, 5733-1973 grants compensation only to absentees who were residents of the State of Israel at the time of its enactment" (ibid., para. 2).

 

29.       In this context it should be noted that one should be conscious of the fact that the strict implementation of the Law in regard to the residents of Judea and Samaria is also likely to lead to the property in Israel of the residents of Judea and Samaria who are Israeli nationals being regarded as "absentees' property". Thus, for example, according to this interpretation, even a property in Tel Aviv whose owner is a resident of Ariel or Beit El is vested in the Custodian. As aforesaid, in this respect the Respondents argued that the Law can indeed be understood in this way but the Custodian does not apply its provisions in such cases, just as he does not apply them in other cases of persons who lawfully move outside Israel. Let us again emphasize matters because of the extreme result that emerges from the language of the Law: any property in Israel the owner of the rights in which is a resident of Judea and Samaria is absentees' property. Hence, for example, if a debt is owed to a person who resides in Judea and Samaria by a person who resides in Jerusalem as a result of a transaction currently made between them, prima facie the debt is vested in the Custodian. Perhaps it is not superfluous to mention that this is also apt in respect of real estate in Israel of the residents of Judea and Samaria. It should also be emphasized that the Absentees' Property Law takes no interest in the religious characteristics, for example, of the "absentee" and the courts have applied its provisions to Jewish "absentees" more than once (CA 4682/92, Estate of Salim Ezra Shaya, Deceased v. Beit Taltash Ltd, IsrSC 54(5) 252, 279 (per Justice J. Kedmi) (2000)).

 

30.       In view of the said difficulties, the State authorities, under the direction of the  attorneys general, have seen fit to limit the exercise of the Custodian's powers in such cases. The chain of events in this context is described in the MazuzDirective, which was filed in the cases before us. Back in November 1968, not long after the Six Day War, it was decided in a forum headed by the Minister of Justice, under the guidance of the then Attorney General M. Shamgar, that the Law should not be implemented in respect of immovable property of residents of Judea and Samaria in East Jerusalem. Attorney General Shamgar explained the decision in the following way:

 

            "… We have not seen any practical justification for seizing property that has become absentees' property at one and the same time because its owner – who is a resident of Judea and Samaria – has become a subject under the control of the Israeli government authorities. In other words, since the property would not have been absentees' property before the date on which the IDF forces entered East Jerusalem and would not have become absentees' property had East Jerusalem continued to be part of Judea and Samaria, we have not considered it justified for the annexation of East Jerusalem, and it alone, to lead to taking the property of a person, who is not actually an absentee, but from the time his property came into our hands is in territory under the control of the IDF forces". (The letter of August 18, 1969 from Attorney General M. Shamgar to the Israel Land Administration, as cited in the Mazuz Directive).

 

            Over the years, attempts have been made to erode the said directive. In 1977, a forum headed by the Minister of Justice and the Minister of Agriculture laid down a temporary arrangement "that would be reviewed in light of the experience of its implementation". According to this arrangement, the residents of Judea and Samaria would be required to apply of their own initiative to the Custodian to continue using their property in East Jerusalem. It later became apparent that the arrangement had not actually been reviewed and that "the Law was being abused" under cover of the arrangement (the Mazuz Directive, para. 4(b); for further discussion, see the Report of the Committee for the Examination of Buildings in East Jerusalem (1992) (hereinafter:  "the Klugman Report")). The 1992 Report also described faults that had occurred in the proceedings to declare properties in East Jerusalem "absentees' property" and it stated that "the functioning of the Custodian of Absentees' Property was very flawed, by any criterion" (ibid., p. 24; see also pp. 12-13, 26). In view of that, it was recommended to make an immediate, comprehensive examination into the functioning of the Custodian. In addition, the Attorney General appointed a team to determine procedures for the exercise of the Custodian's powers (the Klugman Rport, p. 25). Further thereto it was decided to freeze the operation of the Law again and reinstate the previous policy in accordance with the 1968 directive. In 1997, the limitations that had been instituted were again eased and the Custodian was permitted to issue certificates in respect of vacant properties, with the authority of the legal adviser to the Ministry of Finance. As regards occupied properties, the authority of the Ministry of Justice was also required. According to the Mazuz Directive, it appears that only limited use of that power was actually made. In March 2000, a ministerial forum, with the participation of the Minister of Finance, the Minister of Justice and the Minister for Jerusalem Affairs, determined that any transfer of property in East Jerusalem by the Custodian to the Development Authority required approval by the said forum or such person as appointed by it in such respect. In 2004, the Ministerial Committee on Jerusalem Affairs made a decision declaring that it sought to remove all the limitations on the exercise of the Custodian's power in respect of properties in East Jerusalem. It was explained in the decision that the Custodian was vested with powers pursuant to section 19 of the Law, including to transfer, sell or lease real estate in East Jerusalem to the Development Authority (Decision no. J'lem/11 of June 22, 2004; the decision was granted the force of a government decision on July 8, 2004 (Decision no. 2207)). It should be noted that the decision was made contrary to the opinion of the Ministry of Justice and did not include in it the original proposal that the exercise of the said power would necessitate consultation with the legal adviser to the Ministry of Finance or his representative.

 

            In response, at the beginning of 2005, Attorney General M. Mazuz made it clear that the said decision could not be upheld, that it was ultra vires and not within the power and authority of the Ministerial Committee on Jerusalem Affairs. He asked the Minister of Finance to order the immediate cessation of the Law's implementation in respect of the East Jerusalem properties of Judea and Samaria residents and he expressed his opinion that there was no alternative but to reinstate the previous policy, namely to determine that "in general, use will not be made of the powers under the Law in respect of the properties under consideration, except in special circumstances and subject to prior approval by the Attorney General or such person as authorized by him for the purpose" (the Mazuz Directive, para. 6). As we have been informed in these proceedings, that position has also been adopted by the current Attorney General, Y. Weinstein, and it is also the position of the Respondents in the appeals before us (the Respondents' notification of August 28, 2013).

 

31.       Hence, there is in fact no dispute between the parties to these proceedings that the strict implementation of the Law in respect of properties in East Jerusalem, the owners of the rights in which are residents of Judea and Samaria, raises significant difficulties. This has been the opinion of the attorneys general for many years, and the Respondents do not deny it. As aforesaid, the Respondents' position is that the Law does indeed apply to East Jerusalem properties of residents of Judea and Samaria, but it is generally not to be applied in such cases. This is except in special circumstances, after obtaining authority from the Attorney General. The distinction between the application of the Law and its implementation has also found expression in the case law of this Court. Thus, in the Levy case, Deputy President Ben Porat concurred in the ruling that the Absentees' Property Law does apply to properties in East Jerusalem of the residents of Judea and Samaria. However, she noted that although those properties can be regarded as "absentees' property", the question might arise as to whether the powers of the Custodian in accordance with the Law ought to be exercised in the circumstances. This is given the fact that persons are involved are under IDF control and but for the annexation of their land for the sake of united Jerusalem, they would not have been regarded as "absentees" (ibid., p. 390). This is also consistent with the approach in the Cochrane case. As aforesaid, in that case, despite the difficulties that Justice H. Cohn saw in the broad application of the Law deriving from its sweeping wording, he did not seek to find that the Law does not apply. Instead, he explained that the solution to the cases in which the problem arises is to be found in the power granted to the administrative authorities to exclude certain parties from the application of the Law or to release absentees' property (see sections 27-29 of the Law)).

 

32.       This approach is also essentially acceptable to us. As we have detailed, it cannot be held that the Law does not apply to properties in East Jerusalem whose owners are residents of Judea and Samaria. Nevertheless, the powers that are granted by the Law in those cases should be exercised scrupulously and with extreme. In my opinion, in view of the difficulties mentioned above, it is inappropriate to exercise those powers in respect of the said properties, except in the most exceptional of situations. In addition, even where it is decided to take action in accordance with the Law – and as aforesaid, those cases ought to be exceedingly rare – the same will necessitate obtaining prior authority from the Attorney General himself, together with a decision of the Government or its ministerial committee approving the same. We thereby in fact adopt the restrictions in respect of the policy of implementing the Law that the Respondents have long been assuming. This is with the supplemental requirement that any act in accordance with the Law in respect of those properties should also be reviewed and approved by the government or a ministerial committee. Let us explain that we have considered it appropriate to entrench in case law the policy that has long been adopted, according to the Respondents, in this respect and even to make it more stringent, since experience shows that the restraints prescribed have not always been observed and in view of the repeated attempts to erode them, as aforesaid. Moreover it should be borne in mind that any decision to implement the Law in a particular case is, in any event, subject to judicial review.

 

33.       We would also note that insofar as the competent authorities believe that there is a justified need to acquire ownership of property of the type under consideration, they have available to them means other than the Absentees' Property Law that enable them to do so. Thus, for example, the Acquisition Ordinance and various provisions of the Planning and Building Law, 5725-1965 (see, for example, chapter 8 of the said Law, which concerns expropriations). Hence, the restraints that have been prescribed above do not block the way of the authorities to acquire rights in the properties under consideration by virtue of other statutory arrangements, provided that there is justification therefor, and that the conditions prescribed by law are fulfilled. Clearly, statutory tools like those mentioned are preferable to implementing the Absentees' Property Law. In other words, the Absentees' Property Law should only be applied, if at all, after all the other options under the various different expropriation statutes have been exhausted. This is in view of the problems that the Law raises and the fact that the other arrangements that we have mentioned are generally more proportionate.

 

34.       Prima facie, a ruling similar to that reached by us could also have been reached by the course delineated in the Ganimat case, that is to say by adopting a new approach to the interpretation of the Absentees' Property Law along the lines of the Basic Laws, despite the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty. However, since the determinations with regard to the Absentees' Property Law and its interpretation do not depend upon the Basic Law, there is no need to consider a move based on section 10 as aforesaid (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel, IsrSC 50(2) 769, 781 (per Justice M. Cheshin) (1996)). As aforesaid, my decision does not relate to the constitutional aspect or the validity of the provisions of the Absentees' Property Law, but is at the administrative level concerning the way in which the powers by virtue thereof are exercised. Incidentally, it should to be noted that human rights existed before the Basic Laws, and those rights are, in my opinion, more than sufficient to lead to the conclusion that we have reached.

 

The Application of the Judgment in Time

 

35.       The final issue that is left for us to address is that of the of this judgment application in time. In our decision of September 11, 2013, we permitted the parties to supplement their briefs in regard to the application in time of a possible judicial finding that the Law does not apply in respect of residents of Judea and Samaria who have properties in East Jerusalem. Ultimately, our conclusion is, as aforesaid, that although the Law does apply to such properties, it is subject to very stringent restraints with regard to its exercise. Nevertheless, in view of the possible implications of our other finding that, in general, the powers under the Law should only be exercised in very exceptional cases, we think it proper to consider the application in time of this judgment (see HCJ 3514/07 Mivtahim Social Insurance Institute of the Workers Ltd v. Fiorst, para. 33 and the references there (per President (ret.) D. Beinisch) (May 13, 2012)). Although the parties' arguments related to the commencement date of a (possible) rule that the Law does not apply in the instant situations, they are still relevant to the rule laid down with regard to the way in which the Law is implemented. Consequently, we shall briefly cite the parties' main arguments on the application in time, insofar as they are relevant to the ruling that we have ultimately reached.

 

36.       The Respondents oppose the possibility that a case-law rule – if laid down – according to which the Law does not apply in respect of properties in East Jerusalem of the residents of Judea and Samaria would apply retrospectively. In their view, the practice of interpretation applied by them for many years, in accordance with the case law, should be respected. By that practice, the Custodian has been vested with many properties and he has transferred some of them to third parties over the years. According to them, at the present time it is difficult to produce accurate data on the number of properties, out of all the properties that have been transferred to the Custodian, which belong to the said category. In addition, they emphasize that various parties have relied on the said interpretation, and the Respondents also insist on the need for certainty and stability where rights in land are involved. They warn that adopting such an interpretation with retrospective application would lead to extensive litigation and might also have implications at the political level. The Appellants, for their part, reject the Respondents' position. They argue that there is nothing to stop applying a new interpretation to a statute that substantially harms a particular population merely on the ground that it was customary for many years. In addition, according to them, the position of the State authorities in this respect has not been consistent and uniform throughout the years, and at certain times it has departed from the "customary practice" asserted by the Respondents. In their view, following the judgment in the Dakak case, the practice changed and it cannot be said that a "customary regime that is clear to everyone" is involved. Moreover, the Appellants assert that the Respondents did not substantiate the plea that the rule should not be applied retrospectively, or supply any factual data in support of the argument that changing the rule of law "backwards" will infringe the interest of reliance. Furthermore, in the Appellants' opinion, under the circumstances, the interest of changing the law supersedes the interest of reliance. In this regard, they state that the amount of land involved is fixed and is not going to change, and that third parties who, by the actions of the Custodian, have enjoyed property rights that are not theirs should be deemed as unjustly enricheds.

 

37.       Having considered all the factors in this respect, we have reached the overall conclusion that the holdings of this judgment should only be applied prospectively (for a discussion on delaying the avoidance of an administrative decision and relative avoidance, see CFH 7398/09 Jerusalem Municipality v. Clalit Health Services, paras. 29 and 51 (April 14, 2015)). This is in the following sense: if by the time of the handing down of this our judgment, the competent authorities have not done any act in accordance with the Law in respect of a property in East Jerusalem whose owner is a resident of Judea and Samaria, then henceforth the powers by virtue of the Law should not be exercised, except in extraordinary cases and even then after exhausting other options, for example under the Acquisition Ordinance. If it is indeed decided to take action in accordance with the Absentees' Property Law, the same will necessitate obtaining prior authority from the Attorney General himself and also from theGovernment or its ministerial committee. As already mentioned, absentees' property is automatically vested in the Custodian from the moment that it fulfils the definition of "absentees' property", and the same does not necessitate the taking of any action by the Custodian. Consequently, the question of what is "an act in accordance with the Law" as aforesaid might arise. I mean the exercise of any power under the Law that is subject to judicial review, which has been performed by the competent authorities in, or in respect of a property, provided that there is written documentation thereof. It should be emphasized that "the requirement of writing" is a precondition for finding that a particular property is exempt from the application of the determinations in this judgment. The acts, the commission of which will lead to the conclusion that the property is subject to the previous law, will, for example, include steps to care for, maintain, repair or develop the held property, as mentioned in section 7 of the Law; moves that have been taken in the management of a business or partnership instead of the absentee (sections 8, 24, 25 of the Law); transferring the rights in the property to another, including to the Development Authority; discharging debts or performing obligations relating to absentees' property (as provided in section 20 of the Law); the Custodian's presenting written requirements in respect of the property to its owner (for example as provided in section 21(e) of the Law or section 23(c) of the Law; the issue of orders (for example of the type mentioned in section 11 of the Law); the giving of certificates (such as certificates under sections 10 and 30 of the Law); and incurring expenses and conducting legal proceedings in respect of the property. Moreover, the new rule will of course not apply to properties that constitute "held property", namely property that the Custodian actually holds, including property acquired in exchange for vested property (see section 1(g) of the Law). It should be emphasized that these are mere examples of acts in respect of properties as regards which further to their commission this judgment will not apply, and it is not an exhaustive list.

 

38.       The foregoing new requirements that are to be met henceforth will not apply where, prior to the award of the judgment, powers have already been exercised in accordance with the Absentees' Property Law in respect of particular property. In such cases, the law that applied prior to this judgment will apply. In such connection, the authorities will of course be bound by the restrictive policy that the Attorney General laid down with regard to the implementation of the Law in those cases. This means that where an act as described above has already been done in respect of a property of the type with which we are concerned, the mere fact that the new rules that we have laid down have not been performed will not be regarded as a defect, and certainly not a defect that would to lead to the avoidance of the decisions or acts that have been made or done in respect of the property. This finding is intended to contend with the concern that has been raised with regard to retroactive changes of the rules that applied to the land policy in East Jerusalem and to avoid "reopening" transactions made in respect of those properties, with the difficulties involved therein both materially and evidentially. In this context, we have taken into account the possibility that in a substantial proportion of cases, transactions that have long been completed and even "chains" of transactions will be involved. A different ruling might have led to ownership chaos, the flooding of the courts with lawsuits, the impairment of legal certainty and the infringement of a very large public's reliance interest. It should be noted that this approach is also consistent with the spirit of section 17 (a) of the Law, which provides that transactions that have been made by the Custodian in good faith in respect of property that was mistakenly regarded as vested property shall not be invalidated (for a discussion of this section, see, for example, Makura Farm, pp. 17-25; CA 1501/99 Derini v. Ministry of Finance, para. 4 (December 20, 2004); CA 5685/94 Amutat ELAD El Ir David v. Estate of Ahmed Hussein Moussa Alabsi, Deceased, IsrSC 53(4) 730 (1999), in which it was held that the Custodian had acted in an absence of good faith in respect of realty in East Jerusalem that he sold to the Development Authority, and the transaction was therefore invalid).

 

39.       In any event, the cases concerning absentees' property, in respect of which action has already been taken as aforesaid by the Custodian, should be resolved by means of "the release course" prescribed in sections 28 and 29 of the Law. The problems of implementing the Law in respect of properties of the type under consideration should also be borne in mind by the competent entity when deciding on the release of properties (see also Golan, p. 646). In other words, where it is sought to release one of the said properties to which this judgment does not apply, the Special Committee and the Custodian ought to give substantial weight to the difficulties involved in viewing them as "absentees' property", and also to the restrictive policy that is to be adopted, in accordance with which the Law is to be implemented in respect of them. Consequently, preference should be given to the release of property in specie. To complete the picture, we would mention that we have been informed by the Respondents in the hearings in these proceedings that rules have been laid down for the exercise of the Special Committee's discretion in accordance with section 29 of the Law with regard to the release of absentees' property in East Jerusalem of Judea and Samaria residents. According to them, the rules have been formulated along the lines of the Attorney General's position described above. The Respondents believe that a fitting solution will thereby be given in the majority of the cases under consideration, leaving room for the necessary flexibility in sensitive deliberations of this type. We have not considered it appropriate to relate to the actual rules that have been established, as they are not the focus of these proceedings, and bearing in mind that the power to address those matters is vested in the High Court of Justice (see Lulu, para. 8). Insofar as there are objections to the rules that have been laid down, they should be heard in the appropriate proceedings, rather than in the instant ones.

 

The Cases before Us

 

40.       Against the background of these general statements, we shall now rule on the cases before us. Implementing the findings mentioned above in the concrete cases before us leads to the conclusion that the properties under consideration do indeed constitute absentees' property. Properties are involved that are situated in the area of Israel, within the meaning of the Law, whose owners are residents of Judea and Samaria. Hence, the alternative of section 1(b)(1)(ii) of the law is fulfilled in respect of them. Consequently, the Appellants' pleas in both appeals aimed against the finding that Property 1 and Property 2 are absentees' property are dismissed.

 

            The Appellants' alternative application in CA 5931/06 is for us to order the release of Property 1 in accordance with section 28 of the Law. As a condition for exercising the power to release property, a recommendation of the Special Committee under section 29 of the Law is necessary (see also Golan, p. 641). As aforesaid, incidental to these proceedings, the Committee deliberated about the release of Property 1. According to the Respondents, the land involved in the dispute was sold to third parties on "market overt conditions" and the Custodian now only holds the proceeds of sale. The Special Committee recommended releasing the proceeds received for the property only to those of the Appellants who are residents of Judea and Samaria and still alive, and supplemental particulars in respect of the Appellants who have died were requested. As already mentioned, the way in which the Committee's powers have been exercised is subject to review by the High Court of Justice rather than this Court sitting as a court of civil appeals (Lulu, para. 8). Hence, insofar as the Appellants in CA 5931/06 have complaints with regard to the Special Committee's decision, the instant proceedings are not the appropriate forum. In any event, and without making any ruling, we would comment that, under the circumstances, it appears that ruling on the rights in Property 1 necessitates factual enquiry and the consideration of legal questions that were not decided in the judgment of the District Court or argued before us. That being the case, the application to order the release of the property involved in CA 5931/06 is dismissed.

 

            The Appellants in CA 2038/09 have applied for us to order the avoidance of Property 2's seizure and its restitution to them, inter alia in view of their arguments in respect of the Respondents' conduct in the case. As aforesaid, from the moment that a property fulfils the conditions for being "absentees' property", the rights in it are vested in the Custodian, including the power to seize the property. Having determined that "absentees' property" is involved it can only be returned to its original owners in the ways delineated in the Law, with the emphasis on the possibility of release under sections 28-29 of the Law. We would mention that the Special Committee also deliberated upon the release of Property 2. The Committee recommended the release of the parts of the property that had not been seized for the construction of the security fence, and to transfer the consideration for the part seized to the Appellants, who are residents of Judea and Samaria and, according to it, those who held it continuously until its seizure. In accordance with the foregoing, insofar as the Appellants in CA 2038/09 have complaints in such respect or with regard to the seizure of the property for the construction of the fence, the the instant proceedings are not the appropriate forum. Such being the case, the Appellants' application in CA 2038/09 that we order the avoidance of the seizure of the property involved in the appeal and its restoral to them is dismissed.

 

Conclusion

 

41.       Accordingly, my opinion is that there is no alternative but to conclude that the Absentees' Property Law applies to properties in East Jerusalem owned by residents of Judea and Samaria who enjoy or hold them. This is despite the considerable problem raised by treating them as "absentees' property". In this context, we should be conscious of the fact that the strict implementation of the Law's provisions to residents of Judea and Samaria is also likely to lead to serious results as regards residents of Judea and Samaria who are Israeli nationals, whose property in Israel is prima facie regarded as "absentees' property". Alongside this, the substantial difficulties are of significance in the context of exercising the powers under the Law in respect of such property. Consequently, I would suggest to my colleagues to find that the competent authorities must, in general, refrain from exercising the powers by virtue of the Law in respect of the properties under consideration. As such, I have not considered it appropriate to seal the fate of such property and prevent any possibility of implementing the Law in regard to that property. Our assumption is that there may be cases, albeit exceedingly rare, in which it might be justified to take such steps in respect of properties in East Jerusalem of the residents of Judea and Samaria. In those cases, the performance of any act in accordance with the Law will necessitate obtaining prior approval from the Attorney General himself and a decision of the Government or its ministerial committee. This amounts to the adoption of the restrictive policy assumed by the Respondents over the years, with a certain stringency in the form of adding the requirement for the Government's approval. This judgment, and in particular the finding with regard to the restrictions obliged when exercising the powers by virtue of the Law in respect of such property, will only apply prospectively, in the following sense:

 

            (a)       If by the time of the handing down of this judgment, the competent authorities have not done any act by virtue of the Absentees' Property Law in respect of a particular property in East Jerusalem owned by a resident of Judea and Samaria, the findings prescribed in this judgment will apply. Accordingly, the authorities will not be able to take steps in accordance with the Law in respect of the property without the prior authority of the Attorney General and without the approval of the Government or its ministerial committee. In mentioning an "act by virtue of the Law" we mean any act that is subject to judicial review and an act in accordance with the Law, like in the non-exhaustive list of acts contained in para. 37 above, provided always that there is written documentation.

 

            (b)       These requirements will not apply in cases where, prior to this judgment, acts in accordance with the Law were done by the competent authorities in respect of property in East Jerusalem owned by a resident of Judea and Samaria. In those cases, the previous law will apply, including the restrictive rules that have been laid down by the Attorney General in respect of the exercise of the said powers. This means that non-performance of the new conditions that we have just prescribed will not, per se, be regarded as a defect in the administrative act, and will not be such as, per se, to lead to the avoidance of the steps taken in respect of the property or to the "reopening" of transactions already made in respect of it. In such cases, the way is open to release the absentees' property along the course prescribed in sections 28-29 of the Law. When the competent authorities come to decide on the release of such properties, they must take into account the great problem involved in those properties being "absentees' property".

 

42.       In the cases before us, I would suggest to my colleagues that we dismiss the appeals. Under the circumstances, there shall be no order for costs.

 

Justice S. Joubran

 

1.         I agree with the thorough and comprehensive opinion of my colleague, President (ret.) A. Grunis, but would like to add a few words on the application of the Basic Laws as a tool in the interpretation of old legislation. In my opinion, a ruling similar to that of my colleague the President (ret.) could have been reached by an interpretation of old legislation "in the spirit of the Basic Laws", as I shall explain below, and as my colleague Deputy President E. Rubinstein has detailed in his opinion in these proceedings.

 

2.         In my view, the Basic Laws give the judge an appropriate tool of interpretation when questions of interpretation in respect of the provisions of law arise. The Validity of Laws provision in section 10 of Basic Law: Human Dignity and Liberty provides that "this Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law". That is to say that so long as there was existing law prior to the commencement of the Basic Laws, its validity is preserved. However, in my opinion, it is not to be inferred from that provision that the Basic Laws are not to be used as a tool for the interpretation of existing law when that law is not clear and its validity is in any event dubious. The Basic Laws have given our legal system an arrangement of fundamental principles, which I believe can, and frequently should, be referred to when we are reviewing the proper interpretation or legal policy.

 

3.         Using the Basic Laws as an interpretive tool can, in my opinion, give substance to the principles and rights that are under consideration in existing legislation, and properly analyze the balance between them. I believe that such will not impair the validity of the existing law but will conceptualize their substance in a more balanced and organized discourse (cf. CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589, paras. 7-12 of the opinion of Justice M. Cheshin (1995) (hereinafter: Ganimat)). So too, for example, Basic Law: Freedom of Occupation distinguishes between the validity of provisions of legislation and the interpretation of the provisions that "will be made in the spirit of the provisions of this Basic Law" (section 10 of Basic Law: Freedom of Occupation). According to Justice (as he then was) A. Barak, this is obliged as an interpretive conclusion in the context of Basic Law: Human Dignity and Liberty even without an express provision (and see: Ganimat, para. 6 of the opinion of Justice A. Barak). In this respect, his statement there is apt:

 

            "The constitutional status of the Basic Law radiates to all parts of Israeli law. This radiation does not pass over the old law. It, too, is part of the State of Israel's law. It, too, is part of its fabric. The constitutional radiation that stems from the Basic Law affects all parts of Israeli law. It necessarily influences old law as well. In truth, the validity of the old law is preserved. The radiation of the Basic Law upon it is therefore not as strong as it is upon new law. The latter might be avoided if it is contrary to the provisions of the Basic Law. The old law is protected against avoidance. It has a constitutional canopy that protects it. However the old law is not protected against a new interpretative perspective with regard to its meaning. Indeed, with the enactment of the Basic Laws on human rights there has been a material change in the field of Israeli law. Every legal sapling in that field is influenced by that change. Only in that way will harmony and uniformity be achieved in Israeli law. The law is a set of interrelated tools. Changing one of those tools affects them all. It is impossible to distinguish between old and new law as regards the interpretative influences of the Basic Law. Indeed, all administrative discretion that is granted in accordance with the old law should be exercised along the lines of the Basic Laws; all judicial discretion that is granted in accordance with the old law should be exercised in the spirit of the Basic Laws; and in this context, every statutory norm should be interpreted with the inspiration of the Basic Law" (Ganimat, para. 7 of the opinion of Justice A. Barak).

 

            My view is similar to that of Justice A. Barak and I believe, as aforesaid, that in the event that a question of interpretation arises in respect of the provisions of the law, recourse should be made to the Basic Laws, and inspiration drawn from them. In his opinion, my colleague the President (ret.) did not consider the said interpretative approach (and see para. 34 of his opinion, above) but since in the instant case we still reach a similar ruling by his method, I shall add my voice to his opinion.

 

4.         Together with all the foregoing, I concur with the opinion of my colleague President (ret.) A. Grunis.

 

Justice Y. Danziger

 

            I concur in the opinion of my colleague President (ret.) A. Grunis, who proposes to dismiss the appeals before us without any order for costs.

 

            Like my colleague, I too believe that, as a rule, the competent authorities should avoid exercising the powers by virtue of the Absentees' Property Law, 5710-1950 in respect of properties in East Jerusalem whose owners are residents of Judea and Samaria and hold or enjoy them.

 

            As regards those exceptional cases – "exceedingly rare" as my colleague defines them – when there might be justification for exercising the power, I concur with the solution proposed by my colleague, according to which the exercise of the power should be conditional upon obtaining prior approval from the Attorney General, accompanied by an approbative decision of the Government or its ministerial committee.

 

            I therefore concur in the opinion of my colleague, including his findings with regard to the prospective application of the restraints therein, as set out in paras. 41(a) and (b) of his opinion.

 

President M. Naor

 

1.         I concur in the judgment of my colleague President (ret.) A. Grunis. In my opinion, it is very doubtful whether there can, in fact, be an "exceedingly rare" case, in the words of my colleague, where it will be justified to implement the Law in respect of properties in East Jerusalem of the residents of Judea and Samaria.

 

2.         I would explain that in my view, even someone whose case has already been considered in the past by the Special Committee is entitled to apply to it again further to the fundamental observations in this judgment. As my colleague has noted, its decision is subject to review by the High Court of Justice.

 

Deputy President E. Rubinstein

 

A.        I accept the result reached by my colleague President (ret.) A. Grunis in his comprehensive opinion. This is a complex issue which involves the intricacies of the political situation in our region for which a solution has unfortunately not yet been found, and it touches on other issues involved in the dispute with our neighbors, including the refugee question, which is one of the most difficult issues, and the definition of "absentees' property" has a certain relevance thereto. As evidence of this is the fact that, over the years, various different parties have considered the matter, including attorneys general, as my colleague described, and they have sought a modus operandi that will be as fair as possible to all those concerned. That is to say that they will not go into the delicate political issues that go beyond the legal action but will be cautious and moderate in the operative implementation of legal absenteeism; and as my colleague now proposes, the same should only be with the approval of the Attorney General and the Government or a ministerial committee. That is to say that it will be considered very carefully.

 

B.        An example of the complexity and intricacy involved in the matter of absenteeism, which generally awaits the end of the dispute, is the need that arose when the peace agreement with Jordan was made in 1994 (and I would duly disclose that I headed the Israeli delegation in the negotiations on the peace agreement with Jordan) to enact the Implementation of the Peace Agreement Between the State of Israel and the Hashemite Kingdom Law, 5755-1995. The Law dealt with various matters, but section 6 prescribed as follows:

 

            "(a)     Notwithstanding as provided in the Absentees' Property Law, 5710-1950, with effect from Kislev 7, 5755 (November 19, 1994) property shall not be considered absentees' property merely because of the fact that the owner of the right thereto was a citizen or national of Jordan or was in Jordan after the said date.

 

            (b)       The provision of subsection (a) shall not alter the status of property that became absentees' property in accordance with the said Law prior to the date specified in subsection (a)"

 

            (See CA 4630/02 Custodian of Absentees' Property v. Abu Hatum (2007), para. K, which my colleague also cited.)

 

            Note that in section 6(b), as quoted above, it was provided that "the watershed" for the changes was the date of the peace agreement and no change was made to what preceded it; and in the explanatory notes on section 6 (Draft Laws 5755, 253), it was stated that "the status of properties that were absentees' property before the peace agreement will not alter". Section 6 therefore resolved difficulties that might have arisen in accordance with the legal position existing after making the peace agreement but not in respect of the past – "what was, will be" until times change. So too, mutatis mutandis, in the instant case, cautiously and moderately.

 

C.        I would also concur in principle with the observation of my colleague Justice S. Joubran with regard to the use of the Basic Laws on rights as a tool for the interpretation of the legislation to which the Validity of Laws provision in Basic Law: Human Dignity and Liberty (section 10 of the Basic Law) applies. It provides that "this Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law". Basic Law: Human Dignity and Liberty has been with us for more than two decades. During that period, this Court has time and again repeated the rule laid down in Ganimat to which my colleagues have referred, to the effect that "the constitutional radiation that stems from the Basic Law affects all parts of Israeli law. It necessarily influences old law as well" (para. 7 of the opinion of Justice (as he then was) A. Barak; see also A. Barak, “Basic Laws and Fundamental Values – the Constitutionalisation of the Legal System Further to the Basic Laws and its Effects on Criminal Law,” in Selected Writings I 455, 468-469 (5760) (Hebrew)).

 

D.        Further thereto, this principle has been applied in the interpretation of ordinances, statutes and regulations that predate the Basic Law. Thus, for example, it has been held that the Contempt of Court Ordinance (1929) and the Religious Courts (Enforcement of Obedience) Law, 5716-1956 should be interpreted "in light of the provisions of the Basic Law", MCA 4072/12 Anonymous v. Great Rabbinical Court, para. 24 of the opinion of Justice Zylbertal (2013); so too the Crime Register and Rehabilitation of Offenders Law, 5741-1981 (CFH 9384/01 Nasasreh v. Israel Bar, IsrSC 59(4) 637, 670 (2004); The Execution Law, 5727-1967 (CA 9136/02 Mr. Money Israel Ltd v. Reyes, IsrSC 58(3) 934, 953 (2004); The Protection of Privacy Law, 5741-1981 (HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior, IsrSC 58(4) 842, 848 (2004); the Defence (Emergency) Regulations 1945 (HCJ 8091/14 Center for the Defence of the Individual v. Minister of Defense, paras. 18 and 27 (2014); and so on and so forth. This is ethically anchored in what, in a different context, I happened to call "the spirit of the age" (AA 5939/04 Anonymous v. Anonymous, IsrSC 59(1) 665 (2004)), that is to say, giving case-law expression to the social developments in various spheres.

            It should be emphasized that this has also been laid down concretely with regard to the right of property, which stands at the center of the instant case. In fact, even before the well-known finding of Justice Barak in Ganimat, and even prior to the "constitutional revolution" in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper..., Justice – as he then was – S. Levin held as follows: "With the enactment of Basic Law: Human Dignity and Liberty the normative weight of the right of property has risen to the position of a fundamental right. The provision in section 3 of the said Law that 'there shall be no infringement of a person's property' also carries weight when we come to interpret existing provisions of law…" (ALA 5222/93 Block 1992 Building Ltd v. Parcel 168 in Block 6181 Company Ltd, para. 5 (1994); and see also A. Barak, Legal Interpretation, volume III – Constitutional Interpretation, 560-563 (5754) (Hebrew); S. Levin, The Law of Civil Procedure (Introduction and Fundamentals), 33-35 (second edition, 5768-2008) (Hebrew)).

 

E.         And now to the case before us. There can be no question that the language of the Absentees' Property Law, 5710-1950 is not consistent with the right of property in section 3 of Basic Law: Human Dignity and Liberty. That infringement is, in the instant case, compounded by section 2 of the Absentees' Property (Compensation) Law, 5733-1973, which, as the President (ret.) stated, does not permit residents of the territory of Judea and Samaria to claim compensation for the properties that have been transferred to the Custodian of Absentees' Property. Indeed, under the provision of section 10 of the Basic Law we do not set upon a review of the constitutionality of the infringement: whether it is consistent with the values of the State of Israel, whether it is for a proper purpose and whether it is proportional (section 8 of the Law); and my colleague discussed at length the purpose of the Law and its answer to a complex problem that has not yet been resolved, but it can be said that what is called the "right of return" argument, with all its extensive derivatives, cannot be resolved by judicial interpretation. At the Camp David Summit in 2000, I was a member of the Israeli delegation and chaired the subcommittee that dealt with the subject of the refugees, and there was no doubt in Israel's position (which was also supported by the USA) that denied the very basis of that right as being "national suicide". Indeed, based on the case law that the Court has restated numerous times as aforesaid, the provisions of the relevant statute are to be interpreted in accordance with Basic Law: Human Dignity and Liberty. In the instant case, it appears that my colleague the President, despite not expressing an opinion on interpretation along the lines of the Basic Law in accordance with that stated in Ganimat, did in fact draw, what in my opinion is, a proper balance in accordance with the Basic Law when he determined the application of the Absentees' Property Law to the properties involved herein, and that in the instant circumstances, limited use should be made of the Absentees' Property Law, subject to various authorizations and approvals, and after the options included in other statutes have been exhausted (para. 33 of the President's opinion). I have considered it proper to add the foregoing in order to emphasize the importance of the determination in Ganimat and the scope of its application.

 

F.         Given the foregoing, I therefore concur in the opinion of my colleague President (ret.) A. Grunis, which balances between not upsetting a complex legal position, on the one hand, and great caution on the other, by means of a dual safety belt in operative decisions concerning the implementation of the Law in individual circumstances.

 

Justice H. Melcer

 

1.         I concur in the opinion of my colleague President (ret.) A. Grunis and with the remarks of my colleagues. Nevertheless, I am allowing myself to add a few comments of my own.

 

2.         My colleague President (ret.) A. Grunis writes in para. 20 of his opinion, inter alia, as follows:

 

            "In my opinion, it is certainly possible that at least some of the arrangements in the Law (the Absentees' Property (Compensation) Law, 5733-1973 – my clarification – H. Melcer), were they enacted today, would not meet the constitutional criteria. Nevertheless, in the instant case, the provisions of the limiting paragraph are not such as to help or to alter the conclusion with regard to the application of the Law in the cases under consideration here. This is in view of the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty, according to which the Basic Law does not affect the validity of any law that existed prior to its entry into force. This provision does not make it possible to find that any provision of the Law is void ".

 

            In para. 34 of his opinion President (ret.) A. Grunis goes on to say, in respect of the conclusions reached by him:

 

            “Prima facie, a ruling similar to that reached by us could also have been reached by the course delineated in the Ganimat case, that is to say by adopting a new approach to the interpretation of the Absentees' Property Law along the lines of the Basic Laws, despite the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty. However, since the determinations with regard to the Absentees' Property Law and its interpretation do not depend upon the Basic Law, there is no need to consider a move based on section 10 as aforesaid (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel, IsrSC 50(2) 769, 781 (per Justice M. Cheshin) (1996)). As aforesaid, my decision does not relate to the constitutional aspect or the validity of the provisions of the Absentees' Property Law, but is at the administrative level concerning the way in which the powers by virtue thereof are exercised. Incidentally, it should to be noted that human rights existed before the Basic Laws, and those rights are, in my opinion, more than sufficient to lead to the conclusion that we have reached.”

 

 

            Although it was not necessary in all the circumstances herein specifically to consider a move based on section 10 of Basic Law: Human Dignity and Liberty, the same was possible, and it also supports the result and is even proper, as was stated by my colleagues: Deputy President E. Rubinstein, Justice S. Joubran and Justice E. Hayut.

 

            Prof. Aharon Barak recently developed an approach of this type in the interpretation given by him to section 10 of the said Basic Law in his paper, Validity of Laws (an article that is due to be published in the Beinisch Volume – hereinafter referred to as "Validity of Laws"). Further to Prof. Barak's said article, I too stated in my opinion in FH 5698/11 State of Israel v. Mustfafa Dirani (January 15, 2015), as follows:

 

            "Even if the 'Validity of Laws' section contained in Basic Law: Human Dignity and Liberty did apply here, in my opinion that does not mean that the law that has been assimilated as aforesaid, has been "frozen" and it can certainly be altered (according to its normative source and the power to do so) by interpretation or 'adaptation' to the normative environment that has been created further to the values of the Basic Laws, or due to changing times in the world (especially in a case such as this, which involves the war on terror), because 'validity is one thing and meaning is another', see HCJ 6893/05 MK Levy v. Government of Israel, IsrSC 59(2) 876, 885 (2005). In such a case, the "adaptation" or "alteration" should have regard to the 'respect provision' contained in section 11 of Basic Law: Human Dignity and Liberty, and the 'limiting paragraph' of the said Basic Law. See Aharon Barak Human Dignity, The Constitutional Right and Its 'Daughter' Rights, volume I, 392-396 (5774-2014) (Hebrew); Barak, Validity of Laws, the text at footnote 23, and also page 24 ibid. Along these lines, one should also read the development, made by my colleague the President, of the rule that the lawsuit of an enemy national should not be tried by 'adapting it' to the present day and the necessary war on terror, in accordance with the requirements of section 8 of Basic Law: Human Dignity and Liberty" (ibid., para. 16).

 

3.         The practical difference between the foregoing two courses is of importance with regard to the future (in respect of the present, both ways lead to the same result, as aforesaid).

 

            The constitutional course, just like the international-law course, might perhaps in future – if peace settlements are reached with our neighbors – open a way to special arrangements at various different levels on a reciprocal basis, including mutual compensation, as part of a broader package, in view of "the regulatory takings" (to use the American terminology), and the taking of Jewish property in similar circumstances in Arab countries. A somewhat similar process was given expression in legislation further to the making of the peace agreement with Jordan in 1994, of which my colleague the Deputy President, Justice E Rubinstein was one of the architects (see the Implementation of the Peace Agreement Between the State of Israel and the Hashemite Kingdom Law, 5755-1995), and also in some of the countries of Eastern Europe after the changes of regime that occurred there.

 

            Section 12 of the Prescription Law, 5718-1958 (hereinafter: "the Prescription Law”) may be relevant in this respect in the appropriate conditions and with reciprocity. It provides as follows:

 

"In calculating the period of prescription, any time during which the plaintiff was the guardian or ward of the defendant shall not be taken into account".

 

            Also relevant are other provisions of the Prescription Law – section 14 of the statute (which specifically mentions property vested in the Custodian of Absentees' Property in the definition of "party"), and also section 16 of the same law which talks of extending the prescription period after the interruption has ended – in the instant case, according to sections 12 and 14 of the Prescription Law. (For an interpretation of the said sections, see Tal Havkin, Prescription, 213-216, 221-227, 239-240 (2014)(Hebrew)).

 

4.         In conclusion, I would say that the future and the hope that it embodies for peace settlements at this stage raise nothing more than expectations, while the present unfortunately dictates, at most, the legal result that my colleague President (ret.) A. Grunis has presented, in which we have all concurred.

 

Justice E. Hayut

 

1.         I concur in the judgment of my colleague President (ret.) A. Grunis and also the comment by my colleague Deputy President M. Naor, who casts great doubt with regard to the very existence of an "exceedingly rare" case that would justify the implementation of the Absentees' Property Law, 5710-1950, in respect of properties in East Jerusalem that belong to residents of Judea and Samaria. I also share her approach that persons whose case has been considered by the Special Committee in the past should be permitted to apply to it again to review their case in accordance with the principles that have been delineated in this judgment.

 

2.         The examples presented by my colleague President (ret.) A. Grunis in para. 18 of his opinion well illustrate the great difficulty raised by the Law because of its broad scope, alongside the great problems that arise at the international and administrative law levels with regard to its application in cases like those before us (see para. 28 of my colleague President (ret.) A. Grunis's opinion). These difficulties have led us to choose the course of "a rule that is not to be taught"[2] or, to be more precise, "a statute that is not to be taught". This course is perhaps an inevitable necessity given the rigid statutory position that currently exists (cf. Attorney General Directive No. 50.049 of January 1, 1972 with regard to the filing of indictments for an offence of homosexuality in accordance with section 152 of the Criminal Code Ordinance, 1936. Also compare Crim.App. 4865/09 Adv. Avigdor Feldman v. Tel Aviv District Court, paras. 7-8 (July 9, 2009)), but it is important to emphasize that it, too, raises considerable problems because in countries such as ours where the rule of law applies, the provisions of law and the values that the State seeks to apply and enforce are expected to be compatible.

 

3.         Finally, I would concur with the comments of my colleagues Justice S. Joubran, Justice E. Rubinstein and Justice H. Melcer as regards the principles of interpretation to be applied in respect of the legislation that preceded the Basic Laws to which the Validity of Laws provision applies (see, for example, section 10 of Basic Law: Human Dignity and Liberty). These principles of interpretation were considered by this Court in CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589 (1995), since when it has applied them again in its rulings more than once. In the instant case, my colleague President (ret.) A. Grunis, has, in his own way, reached a result that is consistent with these principles of interpretation, and I have therefore seen no need to expand on the matter.

 

            Decided unanimously as stated in the opinion of President (ret.) A. Grunis.

 

            Given this 26th day of Nissan 5775 (April 15, 2015)

 

The President (ret.)	The President		The Deputy President
Justice	Justice	Justice	Justice

 

 

           

 

 

           

 

                                                                                                                       

In the Supreme Court

Sitting As a Court of Civil Appeals

 

CA 8573/08

 

Before:

His Honor, President A. Grunis His Honor, Justice H. Melcer His Honor, Justice U. Vogelman

 

The Appellants:	1.Uzi Ornan 2.Uri Avneri 3.Itamar Even-Zohar 4.Joseph Agassi 5.Yehudit Buber Agassi 6.Shulamit Aloni 7.Alon Oleartchik 8.Yosef Barnea 9.Ibrahim Dwiri 10.Einav Hadar 11.Yuval Halperin 12.Chen Yehezkeli 13.Hubert Yu-Lon 14.Ofra Yeshua Lyth 15.Yehoshua Sobol 16.Yehoshua Porath 17.Rivka (Becky) Kook 18.Nili Kook 19.Adal Kaadan 20.Dan Tamir 21.Gideon Chapski

 

VS.

 

The Respondents:	1. Ministry of the Interior
	2. Attorney General

 

 

Appeal against the judgment of the District Court of Jerusalem (Judge N. Sohlberg) of July 5, 2008, in OM 6092/07

 

On behalf of the Appellants:

Adv. Yoela Har-Shefi, Adv. Yosef Ben Moshe

 

On behalf of the Respondents:

Adv. Ruth Gordin

 

 

[Israeli Supreme Court cases cited:

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

[2]     HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004).

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

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

[5]     HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477.

[6]     HCJ 4/69 Ben Menashe v. Minister of the Interior [1970] IsrSC 24(1) 105.

[7]     HCJ 147/80 Shtederman v. Minister of the Interior [1970] IsrSC 24(1) 766.

[8]     HCJ 18/72 Shalit v. Minister of the Interior [1972] IsrSC 26(1) 334.

[9]     CA 448/72 Shik v. Attorney General [1973] IsrSC 27(2) 3.

[10]   CA 653/75 Shelah v. State of Israel [1977] 31(2) 421.

[11]   HCJ 264/87 Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723.

[12]   HCJ Naamat v. Minister of the Interior [2002]  IsrSC 56(2) 721.

[13]   HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385.

[14]   HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [2006] IsrSC 62(1) 507.

[15]   HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210.

[16]   HCJ 3125/98 Iyad v. Commander of IDF Forces in Judea and Samaria [1999] IsrSC 45(1) 913.

[17]   Temple Mount Faithful Organization  v. Prime Minister [1993] IsrSC 47(1) 37.

[18]   HCJ 4877/93 Victims of Arab Terror Organization v. State of Israel (12.9.1993).

[19]   HCJ 7523/11 Almagor – Victims of Terror Organization v. Prime Minister (17.10.2011).

[20]   HCJ 9549/09 Legal Forum for the Land of Israel v. Ministerial Committee for Matters of National Security (21.4.2010).

[21]   HCJ 9056/00 Kleiner v. Chairman of the Knesset [2001] IsrSC 55(4) 703.

[22]   HCJ 10104/04 Peace Now for Israel Educational Projects v. Commissioner for the Jewish Settlements in Judea and Samaria [2006] IsrSC 61(2) 93.

[23]   LCA 1287/92 Bosqila v. Zemah  [1992] IsrSC 46(5) 159.

[24]   HCJ 754/83 Rankin v. Minister of the Interior [1984] IsrSC 38(4) 113.

[25]   HCJ 466/07 MK Zehava Gal-On v. Attorney General (11.1.2012).

[26]   EA 1/65 Yardur v. Knesset Elections Committee [1964] IsrSC 19 (3) 365.

[27]   HCJ 9149/10 Dr. Vatad v. Israeli Knesset (13.5.2014).

 

District Court cases cited:

[28]      F (Tel Aviv District) 907/70 Tamrin v. State of Israel [1970] PM 42 287.

[29]      RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011)

[30]      OM 6092/07  (Jerusalem) Ornan v. Minister of the Interior  

 

International conventions cited:

Universal Declaration of Human Rights, 1948, art. 15

Israeli legislation cited:

Basic Law: Freedom of Occupation, and sec. 2

Basic Law: Human Dignity and Liberty, and sec. 1A

Basic Law: The Knesset, secs. 5, 7(a)(1)

Civil Union for Persons Having No Religious Affiliation Law, 5770-2010

Culture and Arts Law 5763-2002, sec. 2(c)

Law and Administration (Nullification of the Application of Law, Jurisdiction and Administration) Law, 5759-1999, sec. 6

Law of Return 5710-1950, and sec. 4B

Nazi and Nazi Collaborators Punishment Law, 5710-1950

Parties Law, 5752-1992, sec. 5(1)

Penal Law, 5737-1977, sec. 13(b)(2)

Population Registry Law 5725-1965, and secs. 3A, 19C , 2, 4, 5,

Ships Ordinance (Nationality and Flag), 5708-1948

Shipping (Vessels) Law, 5720-1960

Special Cultural Educational Institutions Law, 5768-2008, sec. 2(b)

State Education Law, 5713-1953, sec. 2b

Terminally Ill Patient Law, 5768-2008, sec. 1(b)

 

 

JUDGMENT

Justice U. Vogelman

The appellants filed a motion in the Jerusalem District Court for a declaratory judgment that they are of Israeli nationality. This motion was filed in order to serve as a public document for the purpose of officially changing the “nationality[1]” item in their entries on the population registry. The District Court (per Judge N. Sohlberg) denied the motion, determining that this was an issue that was non-justiciable at the institutional level, hence the appeal before us.

1.    The appellants are all Israeli citizens. They are registered as having different nationalities in the population registry – most are registered as Jewish, and some as other nationalities: Arab, Druze, Buddhist, Burmese and other. Appellant no. 1, Prof. Uzi Ornan  (hereinafter: Ornan), is registered in the population registry as “Hebrew”, based on his declaration. More than a decade ago, Ornan set up the “I Am An Israeli” non-profit organization, whose members signed a petition according to which they belong to the Israeli nation. In 2000, Ornan asked the Ministry of Interior to register him, under the “nationality” item in the population registry, as “Israeli”. His request was denied on the basis of case law established forty years earlier in CA 630/70 Tamrin v. State of Israel [1972] IsrSC 26(1) 197 (hereinafter: Tamrin Case), to be elucidated below. Late in 2003, Ornan began a legal battle to change the entry for “nationality” in his case. First, he submitted a petition to this Court, together with other petitioners, but they withdrew their petition in 2004 following the Court’s recommendation that they approach the correct forum in order to obtain a public document attesting to their Israeli nationality, in accordance with the requirement of sec. 19C of the Population Registry Law 5725-1965 (hereinafter: Population Registry Law) (HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004)). More than two years later, the petitioners filed a new petition in the District Court of Jerusalem, sitting as a Court for Administrative Affairs, but the petition was transferred, with consent, to the procedural framework of a civil suit, since it involved a request for declaratory relief.

The Judgment of the District Court

2.    The Jerusalem District Court (per Judge N. Sohlberg) dismissed the action for declaratory relief, after determining that the matter is not institutionally justiciable. The previous court conducted an extensive, thorough examination of the issue of justiciability, in accordance with the common approach in our system that distinguishes between two principal aspects of the issue: normative justiciability and institutional justiciability. After laying the said foundations, the court applied the criterion adopted in the framework of HCJ 910/86 Ressler v. Ministry of Defense [1988] IsrSC 42(2) 441 (hereinafter: Ressler Case) as the test guiding the discretion of the court when called upon to decide this question - the criterion of the dominant nature of the subject under discussion. Accordingly, the District Court held that the dominant nature of the requested declaration was public, ideological, social, historical and political – but not legal. In the court’s view, the appellants request cannot be viewed as a technical-administrative matter concerned only with registration in the population registry; rather, it is – in actual fact – a request that the District Court of Jerusalem determine that in the State of Israel, a new nationality has developed, common to all residents and citizens, the “Israeli” nationality. This issue, said the District Court, is a political-national-social question, the legal aspect of which is secondary to the meta-legal main subject. The District Court emphasized that the matter is justiciable from a normative point of view, but it is not justiciable from the institutional point of view, for a determination concerning the existence of an Israeli nationality has far-reaching, momentous ramifications for the image, the nature and the future of the State. This determination is not the type of matter in which the court has a relative advantage over others, and it is not the court’s place to make such a determination. The District Court emphasized that we are in fact dealing with the creation of a new status, “a type of legislative act”. It further pointed out that the platform proposed by the appellants as the basis for the recognition of an Israeli nationality – the population registry – is not suited for that purpose, for the technical-statistical registration in the registry cannot constitute an alternative to deliberation on the part of the legislative and executive authorities and to public discourse, which are the suitable arenas to promote their ideas. The conclusion of the District Court was that “from the point of view of statute and the law, there is no Israeli nationality, and this Court must not create such a creature ex nihilo; legislating rather than adjudicating.” The lower court nevertheless stressed that its judgment was not a determination that an “Israeli nationality” did not exist in a person’s heart and in his personal belief, but pointed out that this belief –worthy of appreciation and respect – does not require legal validation or approval.

The Appellants’ Arguments

3.    According to the appellants, the lower court erred in determining that the dominant nature of the request was not legal, and therefore not institutionally justiciable. They argue that the determination of the issue carries practical implications for the daily life of the individual, in both the domestic legal aspect and the international legal aspect, and the court may not, therefore, refrain from deciding on the matter. According to the appellants’ line of argument, the entire citizenry of the state constitutes the nationality that composes the state; therefore, negation of the existence of an Israeli nationality is equal to the denial of the existence of the State of Israel as a sovereign, democratic state. According to the appellants, with the declaration and the establishment of the State of Israel, the Israeli nation, which does not include Diaspora Jewry, was created, and thus the court’s determination that “from the point of view of statute and the law, there is no Israeli nationality” is mistaken. In support of their position, the appellants refer to the Declaration of Independence, from which it transpires – so they argue – that Diaspora Jewry is not a part of the nation that arose in Israel with the establishment of the State, comprised of “the independent Hebrew people in its land” and “members of the Arab people who reside in the State of Israel.” To support their arguments, the appellants also refer to legislation from the early days of the State, which uses the word “nationality”, and from which one can learn that an Israeli nationality exists: thus, for example, in 1948 the Ships Ordinance (Nationality and Flag), 5708-1948 was enacted, and it specified that in the case of a ship registered in the State of Israel, “its nationality is that of the State of Israel”; and subsequently, the Shipping (Vessels) Law, 5720-1960, which replaced the Shipping Ordinance, stated that “the nationality of a vessel registered under this Law is Israeli.” The appellants further point to the fact that in the Israeli passport, the term “nationality” appears, and underneath it appears the word “Israeli”. According to the appellants, “nationality” is not a religious or ethnic nationality, but “a nationality of the state in its legal sense”, the right to belong to which was entrenched in art. 15 of the Universal Declaration of Human Rights, adopted in 1948 by the General Assembly of the United Nations.

In addition, the appellants make two further points. First, they argue that the list of nationalities presented by the Ministry of the Interior, which includes 137 different nationalities, does not constitute a binding legal source in any respect, for it has no statutory basis, and it is not at all clear who was authorized to compile this list. Secondly, it was argued that the fact that the “nationality” item has been removed from the identity card cannot change the situation, for even if the registration is for the purpose of collecting statistics, the information about the declarants’ Israeli nationality ought to be available to the Ministry of the Interior. In this aspect, the appellants emphasized that underlying their request is the assumption that recognition of an Israeli nationality would be a substantive expression of the principle of equal and full citizenship that was entrenched in the Declaration of Independence, for the present situation creates a distinction between nationalities on an ethnic-religious basis.

Subsequently, after the hearing on the appeal and following the comments of the panel of justices, the appellants asked to submit short complementary pleadings relating to two aspects. The first was with regard to the substance of registration in the population registry, in view of the fact that under the common law, it constitutes a statistical-registrational tool of limited significance. According to the appellants, this legal reality does not present a full picture of the implications of the registration, as they claim that the current registration, which relies on the ethnic-religious component, might be determined, at a future date, to be a violation of the equality between groups of Israeli citizens who are of different ethnic origins. According to the appellants, this situation, whereby Israeli citizens are coercively tagged with a nationality with which they do not identify, is justification for the court to entertain the matter and to grant their request. In reference to another aspect, the appellants asserted that every citizen should retain free choice as to registration of the nationality in which he is interested.

Arguments of the Respondents

4.    Respondents nos. 1-2, the Ministry of the Interior and the Attorney General (hereinafter: the respondents), ask that the appeal be denied. In their view, the lower court was correct in holding that the matter is not justiciable as it has dominant social, national and public aspects, which have significant and far-reaching ramifications for the image and the character of the society and the State. In a complementary pleading filed on October 29, 2012 the respondents referred to the writings of various thinkers, from the 19th century to present day, regarding the profound dispute on the question of whether Judaism is a separate nationality from the nationality of the state of citizenship (“a Jew with German citizenship” as opposed to “a German of the Mosaic faith”). The respondents argue that this question must be resolved in the appropriate arenas – in the framework of academic and public discourse – and the Court would do well to stay away from this discussion. The respondents reviewed many other cases in which the Court decided not to entertain a particular issue, relying on the principle of separation of powers and the concern that the public’s trust in the judiciary would be damaged, and they sought to draw an analogy from those cases to the circumstances of the present case.

According to the respondents, the judgment does not contain determinations on the merits of the matter, and is therefore seemingly sufficient to accept the argument of lack of institutional justiciability in order to deny the appeal. At the same time, the respondents add that the appeal ought to also be denied on the grounds that the appellants did not meet the burden of proof they bore as those who seek declaratory relief, which requires them to show the existence of an “Israeli nationality”. In arguing on the merits, the respondents emphasized that they believe that it is the Israeli citizenship that constitutes the expression of the common self-determination of the residents of Israel, and it is the citizenship that unifies the array of nationalities that have come together in the State of Israel. According to them, the argument of the appellants that an Israeli nationality was created upon the establishment of the State must be dismissed, in view of the fact that the separate classification of the different groups of the Israeli population as belonging to different nationalities existed prior to the establishment of the State and remained thereafter. It was also emphasized that the information concerning nationality appears only in the population registry, which is a statistical database, and it does not even constitute prima facie evidence of its accuracy. The respondents therefore argued that in practice, the appellants’ request has no real import, and it is wholly a product of the symbolism that they attach to it. As such, so it is argued, the appellants have not shown that granting declaratory relief is justified in this matter. 

Following the retirement of President D. Beinisch, who presided over the panel that heard the arguments of the parties, President A. Grunis assumed her place. Later, complementary written pleadings were filed, and now the time has come to rule.

Deliberation

Population Registry Law

5.    Let us begin by presenting the normative framework for our deliberations – the Population Registry Law and the acts performed pursuant to it. The Population Registry Law regulates the operation of the population registry, in which the details of Israeli residents are registered. The details that must be registered for each resident are enumerated in sec. 2 of the Law:

       (1)        Family name, first name and former names;

       (2)        Parents’ names;

       (3)        Date and place of birth;

       (4)        Sex;

       (5)        Nationality;

       (6)        Religion;

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

       (8)        Name of Spouse;

       (9)        Names, dates of birth, and sex of children;

       (10)      Past and present citizenship or citizenships;

       (11)      Address;

       (11A)   Postal Address […];

       (12)      Date of entry into Israel;

       (13)      Date of becoming a resident […].

 

The registration officers appointed by the Minister of the Interior are responsible for the administration of the registry (sec. 4 of the Law). The resident has a duty to notify the registration officer of his details and the details of minor children in his charge (sec. 5 of the Law), as well as of any change in them (sec. 17 of the Law). In addition, the Law contains particular provisions regarding the duty of notification in relation to birth, adoption, death, leaving the country (secs. 6-14 of the Law), and regarding the updating of certain details at the instigation of the relevant authority or the court (secs. 15-16 of the Law). The powers of the registration officer are specified in chap. 3 of the Law (secs. 19-23 of the Law). Section 3 of the Law states that registration in the registry shall be “prima facie evidence of the correctness of the details of registration referred to in items (1) to (4) and (9) to (13) of section 2.”  The details of registration dealing with nationality (5), religion (6) and personal status (7) – (8), do not have probative weight, and as such – as we will see below – they have been interpreted in the case law as constituting purely “statistical” data.

6.    Section 19B of the Law is concerned with the registration of a resident who is registering for the first time (“initial registration”), which will be done on the basis of a public document or on the basis of the declaration of the resident or his custodian. The registration officer is authorized to demand that the person making the notification furnish him with any information or document in his possession that is relevant to the details of registration, and to make a written or an oral declaration as to the truth of the information or the document (sec. 19 of the Law). If the registration officer has reasonable grounds to assume that the notification is not correct, he is authorized to refuse to register that detail (sec. 19B(2) of the Law). Section 19C of the Law – which is the relevant section in our case – deals with a change in a registration detail of a resident (“registration of changes”), which will be done, in general, on the notification of the resident accompanied by a public document attesting to the change. In other words, whereas for the purpose of initial registration the registration clerk may be satisfied solely with a notification of the resident or his custodian, in order to change the existing registration of a detail in the registry, presentation of a public certificate is required. As an aside, it will be noted that an address may be changed on the basis of notification by the resident alone, without a public document being required. The Law authorizes (under certain conditions) the Chief Registration Officer to register a resident who is not registered, or to amend a detail of registration in relation to a resident, insofar as the existing registration is deficient or contradicts another registration or a public document (sec. 19E).

Case Law on the Substance of the Detail “Nationality”

7.    As mentioned above, questions of religion and nationality – and especially the question of “who is a Jew?”  were raised in this Court early on, in the framework of discussion of the Population Registry Law and the exercise of authority thereunder. The case law consistently accorded an extremely narrow interpretation to the authority of the registration officer and the discretion granted to him in relation to registration of the details of nationality, religion and personal status. This case law began with HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17(1) 225 (hereinafter: Funk-Schlesinger Case), in which it was ruled that “the function of the registration officer […] is only that of a collector of statistical data for the purpose of conducting the residents’ registry, and he was given no judicial power at all” (at p. 244). As we will see below, the holding that this is a statistical registration, and that exercise of power under the Population Registry Law is technical and not substantive, allowed the Court to afford relief to those turning to it without having to issue iron-clad rulings on the sensitive and complicated questions of “who is a Jew” (for criticism of the Funk-Schlesinger judgment and the decisions stemming from it, see Eitan Levontin, “A Castle in the Air – The Funk-Schlesinger Decision and Population Registry Laws”, Mishpat Umimshal 11(1) (2007), 129 (Heb.).

8.    HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477 (hereinafter: the First Shalit Case) dealt with the case of Mr. Benjamin Shalit, who notified the registration officer that the nationality of his children was “Jewish”, but his request to register them as such was refused by the clerk because the children were born to a non-Jewish mother. The Court granted the petition, by a majority opinion, relying on the judgment in the Funk-Schlesinger Case and ordered the registration officer to register the petitioners’ children as “Jewish” under “nationality”, on the basis of their father’s declaration. Against the background of the judgment in Shalit’s case and the public tempest it aroused, sec. 3A of the Population Registry Law was enacted, which provides as follows:

 A person shall not be registered as a Jew by nationality or religion if a notification under this Law or an entry in the Registry or a public document indicate that he is not a Jew, so long as the notification, entry or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a competent court or tribunal has not otherwise determined ”

(Subsec. (b) states that for the purpose of this Law, the definition of “Jew” shall be the same as its definition in sec. 4B of the Law of Return, 5710-1950 (hereinafter: Law of Return): “… a person who was born of a Jewish mother or has become converted to Judaism, and who is not a member of another religion”; see also: Michal Shaked, Moshe Landau: Judge (2012), 368-380 (Heb.)).

9.    HCJ 4/69 Ben Menashe v. Minister of the Interior [1970] IsrSC 24(1) 105 (hereinafter: Ben Menashe Case) – a sort of a “mirror image” to the First Shalit Case - was a case in which the entry under the nationality of the petitioner’s children had initially appeared as “Jewish”, despite the fact that their father asked that they be registered as devoid of nationality. It was ruled that the initial registration was unlawful, for the registration officer was not authorized to make such a registration contrary to the declaration of the petitioner. In HCJ 147/80 HCJ 147/80 Shtederman v. Minister of the Interior [1970] IsrSC 24(1) 766 (hereinafter: Shterderman Case), the petitioners’ request to delete the entry under nationality as “Jewish” from their registration in the population registry was denied. The petitioners sought to express their discontent with the change in legislation that followed the ruling in the First Shalit Case. The petition was denied after the Court ruled that the initial registration was lawful (as opposed to the case in the Ben Menashe Case), and a public document was therefore required for the purpose of amending the registry under sec. 19C of the Population Registry Law. Justice H. Cohn noted that the petitioners had not really and truly changed their self-definition, and they do not see themselves as belonging to another nation; therefore their petition lacks substance. Later, the Court denied another petition filed by Benjamin Shalit, in which he sought to register his third son (who was born after the legislation had been changed) as being of “Hebrew” nationality. The Court held that “in actual fact, there is no difference between the Jewish nationality and the Hebrew nationality”, and registration of Shalit’s son as a “Hebrew” would therefore constitute a circumvention of sec. 3A of the Population Registry Law (HCJ 18/72 Shalit v. Minister of the Interior [1972] IsrSC 26(1) 334) (hereinafter: Second Shalit Case).

10.  The Tamrin Case was, as aforesaid, an early incarnation of the case at hand. Dr. George Tamrin immigrated to Israel in 1949 from Yugoslavia, and was registered in the population registry as “Jewish” under nationality, and as “without religion” under religion. According to Tamrin’s assertion, the enactment of sec. 3A of the Population Registry Law in 1970 – which states that a person will not be registered as “Jewish” in the nationality or religion field if he does not satisfy the definition of “Jew” under sec. 4B of the Law of Return – made him change his feelings about being of Jewish nationality. He therefore turned to the District Court for declaratory relief, to allow him to change the entry under nationality to “Israeli”. The District Court of Tel Aviv-Jaffa (per Judge Y. Shilo) denied the petition (F (Tel Aviv District) 907/70 Tamrin v. State of Israel [1970] PM 42 287).

In a lengthy, reasoned opinion by President S. Agranat, this Court denied Tamrin’s appeal.

First, the Court ruled that in order to issue a declaratory judgment concerning a particular person’s affiliation to a particular nationality, proof based on objective criteria is required concerning the existence of that nationality. President Agranat held that “the subjective feeling of a person about belonging to a particular nationality has no significance, unless it is possible to determine, on the basis of some sort of criteria, that that nationality in fact exists” (at p. 201).

Secondly, it was held that it was not proven that in the State of Israel, an Israeli nationality had come into being, separate and differentiated from a Jewish nationality. President Agranat proceeded to examine the question of the nature of nation and nationality, relying on the conclusion of (then) Justice J. Sussman in the First Shalit Case, according to which “an array of objective and  subjective factors, taken together, raise a group of people to the status of national group” (p. 514): the feeling of unity that exists amongst the members of the national group, mutual reliance and collective responsibility, as well as ethnic values and cultural heritage that characterize the national group and differentiate it from other national groupings. In applying the said criteria to the Israeli case, President Agranat found that “there is no merit to the claim of the appellant – not even prima facie – that there has been a separation from the Jewish nation in Israel, and the creation of a separate Israeli nation” (p. 205). This holding is based on many historical examples that attest to the existence of a feeling of mutual reliance between Jews living in Israel and in the Diaspora, and on that Tamrin did not show that there is a significant group in Israel who lacks this “feeling of Jewish mutual reliance”. President Agranat discussed at length the meaning of the terms “identity” and “identification” in their ethnic-national sense (pp. 203-204), and ruled that the academic essays and the research to which Tamrin had referred in support of his arguments, which dealt with the preference of individuals in the renascent Israeli society for their Israeli identity over their Jewish identity, do not necessarily attest to the absence of their identification with the Jewish nationality. That is to say, President Agranat held that even if there are Israelis who prefer the Israeli aspect of their identity to its Jewish aspect, this does not negate their identification with the members of the Jewish nationality.

In addition to this ruling, which relied on the judgment of the District Court in the matter, the President added that in his view, the principle of the right to national self-determination was intended to apply to nations and not to “fragments of nations”. In his opinion, recognition of such nationality might lead to national and social fragmentation of the entire nation. The President added that a separatist trend of splitting the Jewish people was unacceptable. In his view, this was not the intention of the legislator in inserting “nationality” as an item in the population registry, and in any case the Court cannot support this (at pp. 217-223). Justice Z. Berinson concurred in the opinion of President Agranat, for the same reasons. Justice Y. Kahan also concurred in denying the appeal, but the main reason for his conclusion was that the relief requested by Tamrin was apparently inconsistent with the definition of “Jew” in sec. 3A of the Population Registry Law.

11.  In CA 448/72 Shik v. Attorney General [1973] IsrSC 27(2) 3 (hereinafter: Shik Case), the Court heard the matter of a person who was registered as a Jew under “nationality”, and petitioned the District Court for declaratory relief whereby he is entitled to be registered in the Population Registry without any entry for national affiliation. The intention was for the ruling to serve as a public document for the purpose of amending the registry, under sec. 19C of the Population Registry Law. The District Court denied the application. The Supreme Court allowed the appeal on the denial of the application, holding that a person has the right not to belong to any religion or nationality, and when he makes a declaration to that effect – and the court is convinced that this declaration is true and sincere – the declaratory judgment must be made, on the basis of which the registration in the registry will be changed. Justice Berenson wrote that no distinction must be made here between the item designated as “religion” and that designated as “nationality”, for –

 … they are both matters of a person’s heart, his faith and his world view, particularly in the case of a person who does not want to belong to any religion or any nation. When a person declares of himself that he belongs to a particular religion or nation, it is still not a certainty that this religion or that nation, according to its laws, will adopt him and recognize him as such. However, lack of faith or heresy of religion, and a person’s desire to view himself as a citizen of the world and free of the constraints of any nationality – that is his business that does not require any consent and any external validation (at p. 6).

In this, Justice Berenson adopted the approach of Justice Sussman in the First Shalit Case according to which the determination of a person’s affiliation to a particular religion and nationality stems primarily from the individual’s subjective feeling. At the same time, Justice Berenson confined his ruling to a person who wishes to change the registration in order to deny his affiliation to a religion or nationality, and he also noted in his opinion that if the purpose of the request is to change the registration from one nationality to another, the considerations are liable to be different. Justice Berenson added:

This is not a matter of whim or caprice, that a person can declare himself to be a member of a particular religion or national affiliation and the next day or the day after that as a member of another religion or national affiliation, or as being without religious or without ethnic affiliation …. When a person wishes to change an existing registration, he must convince the court that he is indeed serious, his thoughts are sincere and his intention is true (at p. 8).

The Court remarked that weight should be given to the fact that in that matter, the existing registration (Jewish nationality) was based on the notification of the parents when the appellant was a minor, and he has not accepted it ever since he was able to make up his own mind (p. 5). The Court reiterated this ruling in granting declaratory relief according to which Mrs. Johanna Shelah had no religion and was entitled to register without an entry under the religion item in the registry (CA 653/75 Shelah v. State of Israel [1977] 31(2) 421) (hereinafter: Shelah Case); see also a recent decision: RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011)) (hereinafter: Kaniuk Case).

12.  Whereas in Shelah Case the Court – as we said – granted the appellant’s request to be registered as without religion, her request to register in the population registry as a “Hebrew” under the nationality item was denied. (Then) Deputy President M. Landau adopted the determination of the District Court whereby there is no difference between the terms “Jew” and “Hebrew”, and that uniformity of the registry must be preserved. In his decision, Deputy President Landau also relied on the ruling in the Tamrin Case, stating that the appellant had not proven that there exists a Hebrew nation separate from the Jewish nation, and that separatist tendencies to split the nation should not be encouraged. (Then) Justice M. Shamgar concurred in the judgment of Deputy President Landau and in its reasoning. Justice A. Witkon concurred in the conclusion reached by the Deputy President, for the reasons given by the District Court (that the meaning of the term “Hebrew” is identical to that of the term “Jew”, and preservation of uniformity of the registry is a proper purpose), but he did not agree with the reliance on the ruling in the Tamrin case. Justice Witkon remarked that it was not the job of the authority responsible for the population registry to express an opinion about “separatist” movements – either for or against, and that each person should be able to be registered as he wishes.

13.  After a “lull” of several years in cases concerning the dispute over registration of religion and nationality notations, petitions related to the registration of these particulars – religion and nationality – again came before the Court regarding individuals who underwent non-Orthodox conversions (HCJ 264/87 Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723) (hereinafter: Shas Case); HCJ Naamat v. Minister of the Interior [2002]  IsrSC 56(2) 721) (hereinafter: Naamat Case)). The broad principle that the registration officer is obliged to register in the population registry – in the initial registration – information furnished to him and attested to in a document, with no authority to examine the legal validity of that information, was also applied in our rulings relating to these matters. It should be pointed out that in the framework of the judgment in the Naamat Case, a decision was also made regarding the process concerning the amendment of the registration of the items of religion and nationality, items under sec. 19C of the Law, in the framework of which a judgment was sought as a public document. In relation to that process, too, the rule concerning the technical and statistical nature of the registration in the registry was applied (ibid., per President A. Barak, paras. 3 and 33). Thus, the Court did not turn away the petitioners empty-handed by determining that this was a non-justiciable issue, but it limited its decision to the technical-registration aspect. To be precise: the Court emphasized that it was not making any determination on the question whether the petitioners were considered Jewish according to the Halacha (Jewish Law), and that its decision was restricted to the purposes of the Population Registry Law, and stemmed from the case law relating to the registration of the particulars of religion and nationality in the population registry.

14. We therefore see that the items of religion and nationality in the population registry were fertile ground for stormy legal debates on matters of “peoplehood and nationality, of religion and state, of Orthodox and non-Orthodox conversion, of who is a Jew and who is not a Jew” (HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385, at p. 395). These were tempestuous, radicalizing debates, which touched the very core of opponents and supporters – and all of this, even though the registration itself had no stated legal ramifications in practice. Against this background, even in the early case law of this Court on the subject, Justice A. Witkon expressed his displeasure with questions of values in the area of nationality being brought before the Court, and called upon the Government “to initiate legislation that would obviate the need for registration of this superfluous field” (First Shalit Case, at p. 532; see also p. 536).  After several decades of litigation revolving around the “nationality” item, it seems that the picture has not changed. And indeed, once again a dispute concerning the registration of “nationality” item in the population registry is brought before us.

At this stage, we wish to examine the main reason underlying the decision of the District Court – the question of institutional justiciability. 

Institutional Justiciability

15.  The District Court held an elaborate and detailed discussion of the question of justiciability in its judgment, and reached the conclusion that the matter brought before it is not institutionally justiciable, for its dominant aspects are meta-legal. The issue of justiciability has been part of our legal system since its early days. The discussion of the scope of issues appropriate for deliberation in this Court, and in the courts in Israel in general, is not new. In the Ressler Case, (then) Justice A. Barak distinguished between normative justiciability and institutional justiciability (see also: I. Zamir, “Judicial Review of Administrative Decisions – From Practice to Theory”, Mishpat veAsakim 15 (2012) 225, 247  (Heb.)). A claim of normative non-justiciability questions the ability of the court to decide a dispute before it using legal criteria. “A dispute is not justiciable in the normative sense, if there are no legal criteria for its resolution” (ibid., at p. 475). In Justice Barak’s view, the claim of normative non-justiciability has no legal basis, for there is always a legal norm by virtue of which a dispute can be resolved (see also: HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, at p. 578 (hereinafter: Targeted Killings Case); Aharon Barak, The Judge in a Democratic Society (2004) 276-279 (Heb.)). Institutional justiciability comes to answer the question of whether the correct institution for resolving the dispute is the court (as opposed to other arenas, such as the government, the Knesset or public discourse). Justice Barak’s approach is that recourse to the doctrine of absence of institutional justiciability should be extremely limited, and confined to special cases in which there is a significant concern of damaging the public trust in judges (see: The Judge in a Democratic Society, at p. 275; HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [2006] IsrSC 62(1) 507, at p. 579). The test outlined by President M. Shamgar in the Ressler Case for examining the claim of lack of institutional justiciability is that of the dominant character of the subject:

It may be that the political character is dominant to such extent that the legal implications of the problem will be swallowed up by it or pushed to a corner […]. If the totality clearly and openly indicates that the dispute is of a dominantly political nature, the court will not tend to deal with it (at p. 515).

On the basis of this test, petitions that addressed policies relating to the settlement of Israeli citizens in the areas of Judea and Samaria were denied, after it was determined that the dominant nature of the subject is political and not legal (HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210; HCJ 3125/98 Iyad v. Commander of IDF Forces in Judea and Samaria [1999] IsrSC 45(1) 913); for similar reasons, petitions relating to the negotiations conducted by Israel with Syria at the beginning of the 1990s were denied (Temple Mount Faithful Organization  v. Prime Minister [1993] IsrSC 47(1) 37), and to signature of the Oslo Agreements between the State of Israel and the PLO (HCJ 4877/93 Victims of Arab Terror Organization v. State of Israel (12.9.1993)); decisions concerning the release of prisoners and prisoner exchanges (HCJ 7523/11 Almagor – Victims of Terror Organization v. Prime Minister (17.10.2011)) and the decisions mentioned in para. 3 of this decision); a decision on the building freeze in Judea and Samaria (HCJ 9549/09 Legal Forum for the Land of Israel v. Ministerial Committee for Matters of National Security (21.4.2010)). Another area in which we find reference to considerations of institutional justiciability is intervention in certain intra-parliamentary procedures (HCJ 9056/00 Kleiner v. Chairman of the Knesset [2001] IsrSC 55(4) 703; see also Daphna Barak-Erez, “The Justiciability Revolution – An Evaluation”, Hapraklit 3 (2008) 19-20 (Heb.) (hereinafter: Barak-Erez – The Justiciability Revolution).

Institutional Justiciability and the Question of the Israeli Nationality

16.   As stated, the appellants argue that the law established in the Tamrin Case is outdated, and direst the core of their argument at the holding of the Court in the Tamarin Case that there is no “Israeli” nationality distinct from the Jewish nationality. The appellants are not disputing the validity of the first part of the law established in the Tamrin Case, whereby objective proof of the existence of a nationality is a necessary condition for granting declaratory relief, and that a subjective feeling is insufficient for a judicial  determination that a particular nationality exists for the purpose of registration of the particular of nationality in the population registry (as opposed to the stance of Justice A. Witkon in the Shelah Case, according to which every person should be allowed to register as he wishes). We will not, therefore, discuss an argument that was not made before us and which is not in dispute between the parties. Moreover, the pleadings seem to indicate that the appellants wished to invoke this first part of the said ruling, for they are asking this Court to render a decision with broad implications: an unreserved declaration of the objective existence of an Israeli nationality. Thus, for example, the appellants signed off on their summations in the appeal by noting that they “believe that the Supreme Court will ‘restore the Crown to its former glory,’ it will raise the Israeli nationality out of its wretched state and in so doing will make a vital contribution to strengthening the foundations of the State of Israel …” (para. 25 of the appellants’ summations).

17.  Therefore, unlike other matters in which questions relating to the registry were at issue – which we discussed above – we are not required to step into the path of the decision in the Funk-Schlesinger Case  in a way that would restrict the significance of the registry and the actions performed pursuant to it to a purely technical act based on the declaration of the registrant. Hence the significant difference between the process before us and the other cases in which the Court dealt with questions in the area of the population registry. For the requested relief to be granted, as presented by the appellants and in accordance with the case law which they do not dispute, the Court would have to declare the existence – on the basis of objective criteria – of an “Israeli nationality” to which they belong.

This question has many layers; it is complex from a theoretical point of view and sensitive from the public aspect. We are dealing with fundamental issues that have preoccupied the State of Israel and the Israeli society since the establishment of the State and even prior to that, as we shall see below.

18.  The appellants argue, for example, that “it is impossible to define the whole of world Jewry as belonging to the “Jewish nation”, for the Jews … are all of the nationality of the states of which they are citizens” (sec. 28 of the statement of appeal). We are dealing with an issue that is sensitive and controversial on the moral level and the historical level, one which has been accompanying the Jewish people for many years, and the Zionist movement from its inception. The conception that Judaism is not only a religious affiliation but also a national affiliation is the foundation-stone of Zionism. Standing contra to this is the conception that Judaism is only a religion, and consequently, the national affiliation of Jews is only to the state whose citizenship they hold. The basic elements of this latter conception lie in the process of emancipation of the Jews in the states of Western Europe, when many of them began to define themselves as Jewish from the religious aspect only (“Germans of the Mosaic faith”; for a description of this trend amongst German Jews until the rise of Nazism, see Amos Elon, The Pity of It All: A Portrait of Jews in Germany 1743-1933 (2002)). After the establishment of the State of Israel, this controversy changed its direction. On the one hand, the establishment of the state of Israel is the realization of the Zionist vision to establish a national home for the Jewish people in the Land of Israel. Thus, the Declaration of Independence states that “The Land of Israel was the birthplace of the Jewish People” and that it is the “natural right of the Jewish People to be masters of their own fate, like all other nations, in their own sovereign State.” On the other hand, there were those who argued – as do the appellants before us – that with the establishment of the State and pursuant to that process, an Israeli nation was born (or at least, ought to have been born), distinct from the Jewish nation.

19.  The ramifications of this discussion are tremendously far-reaching. They touch upon the relations of the State of Israel with Diaspora Jewry, and upon the perceptions and relations of the different groups within the State of Israel. The lower court discussed the possible ramifications of a judicial decision on the dispute:

A declaration as requested is liable to upset the delicate balance between the national and cultural components of the State, that are based on national identities including ones that are not Jewish, and between the manner in which the religious components find expression.

       Nota bene: a person cannot belong to two nations. If an Israeli nationality is to be recognized, the members of the Jewish nation in Israel will have to choose between two options: whether they are Israeli, and then they will not be Jewish; or whether they are Jewish, and then they will not be Israeli – the same applies to the members of the minority groups.

In other words, a declaration by the Court as to the existence of an Israeli nationality as an objective reality is likely to impact the question of the registration of the “nationality” item of all citizens of Israel, even those who are not interested in this. In this last context, we would mention the position of the scholars Jacobson and Rubinstein, who discussed the meaning of such a step in relation to the Arab community:

In the present situation of two clear national identities within the citizenry, the official – or even unofficial – adoption of the term “the Israeli people” might, rather than including the Arab minority from a national point of view – exclude it from a civil point of view …. Amongst the Arab population, many will refrain from defining themselves as Israelis, or even refuse to do so outright, due to the “lack of national neutrality” of that term, or simply for political reasons (Alexander Jacobson and Amnon Rubinstein, Israel and the Family of Nations (2003) 346 (Heb.) (hereinafter: Jacobson and Rubinstein).

20.  It will be noted that the appellants’ line of argument and the question that it raises are to a great extent derived from the argument regarding the nature of the term “nationality”. The definition of the term “nationality” is not simple, and extensive academic writing exists in the field of the social sciences in an attempt to understand its depths, its historical sources, the reciprocal relations between nationality and national state, and between nationality and nationalism (for contemporary writings, see: Ernest Gellner, Nations and Nationalism (1983); Erich Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (1991); Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983)). The distinction between several models of nationalities and conceptions of nationalism is generally accepted: civil nationalism, in which there is identity between the nationality and the political citizenship, which is based on a social contract and the will of the citizens (the example representing this model is France: see: Jacobson and Rubinstein, at pp. 375-386), and ethnic-cultural nationalism, in which the affiliation of the individual to a national group is primarily the result of common objective characteristics (common language, religion, culture and history). This is the conception that prevails nowadays in Israel in relation to the term “nationality”, which the appellants before us seek to challenge. That is to say, the appellants’ quest to change the notation of “nationality” in the population registry expresses their wish for the population registry to reflect the civil nationality conception, as part of their public battle to establish this as the appropriate model for the State of Israel (see also: Moshe Barnet, A Nation Like all Other Nations – Towards the Establishment of an Israeli Republic (2009) (Heb.); Yosef Agassi, Between Religion and Nation – Towards an Israeli National Identity (2^nd ed., 1993) [the author is appellant no. 4 in the present appeal – U.V.]).

21.  Thus, we have seen that in order for the Court to grant the request of the appellants for a declaratory judgment to the effect that they belong to the Israeli nation, they must, according to the case law, prove by means of objective criteria the existence of this nation. This discussion involves basic questions about the State of Israel, the Jewish people, Zionism, and different conceptions of nation and nationality. The complexity involved in dealing with these questions – upon which we have barely touched– hardly needs to be stated. Answers to some of these questions may perhaps be found within the public consensus, and some are still subject to heated debate. The natural venue for these discussions is not within the courtroom, but in other arenas of public debate and academic literature. The Court would do well to exercise great restraint in relation to these issues (Aharon Barak, Judicial Discretion (1987), 289-291).

22.  The above notwithstanding, I cannot entirely accept the conclusion of the lower court, namely, that this is an issue which is not justiciable from an institutional point of view. First, as we saw, this Court has often dealt with issues that relate to the contents of the “religion” and “nationality” fields in the population registry, despite the public sensitivity of these questions. The view that these questions are institutionally non-justiciable remains a minority one (see the opinion of Justice I. Englard in the Naamat Case, at p. 755). Rather, the Court has chosen to examine a narrow and technical aspect of the significance of the information recorded in the entries on religion and nationality in the registry, to interpret narrowly the authority of the registration officers to examine the contents of the detail that was registered by virtue of a person’s declaration.

23.  Indeed, our case law has repeatedly emphasized that the population registry and the actions performed within its framework pursuant to the Population Registry Law are not the appropriate arena for deciding on complex moral questions in the area of religion, national identity and personal status. So, in the words of Deputy President M. Cheshin in one of the cases:

The Population Registry Law is, in the main, a technical law, and if we load upon its narrow shoulders a heavy burden of fateful questions, it will not be able to bear it. The Population Registry Law was not intended, at base, to embrace questions of people and nation, of religion and state, of Orthodox and non-Orthodox conversion, of who is a Jew and who is not a Jew (HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385, at p. 395 (hereinafter: Goldman Case)).

I agree with this statement unreservedly. Nevertheless, it cannot be concluded that the Court washes its hands of the concrete questions that are presented to it in cases involving the Population Registry Law and the actions performed pursuant to it. It is the legislator who determined that “nationality” would appear in the population registry, and in consequence, various issues arise for our consideration. As pointed out by Deputy President M. Cheshin in the Naamat Case, “Where the legislator makes legal norms that apply to the individual – rights and duties, immunities, privileges and other such legal relations between people – dependent upon the existence of a particular thing, by the very same flourish of the pen does he, as a matter of principle, make that “thing” justiciable where before it may not have been so” (ibid., at pp. 761-762). In other words, were the nationality item not included in the Population Registry Law, it could easily have been decided that this was an issue that, by its nature, ought not to be decided in court, for the reasons elucidated by the District Court. But this is not the situation. This becomes even more clear in the case at hand, for the issue that was laid at the doors of the District Court – the question of the existence of an “Israeli nationality” – has already been examined and discussed, on its merits, by this Court in the Tamrin Case.

Is a Reexamination of the Holdings in the Case of Tamrin Justified?

24.  Within the contours of their argument, the appellants face a high hurdle – the need to convince the Court that justification exists for ordering a change in the holdings in the Tamrin Case., by pointing to a substantive change in circumstances or other reasons that justify so doing (and cf.: HCJ 10104/04 Peace Now for Israel Educational Projects v. Commissioner for the Jewish Settlements in Judea and Samaria [2006] IsrSC 61(2) 93, at p. 151). Let us recall that “it is not sufficient that an earlier ruling does not seem to the judge to be good in order to justify a departure from it” (per President A. Barak in LCA 1287/92 Bosqila v. Zemah  [1992] IsrSC 46(5) 159, at p. 172). This is even more pertinent in our case, against the background of the institutional considerations that we discussed. Even if the said considerations do not tip the scales in favor of a determination that this is an issue that is institutionally non-justiciable, the Court may – in the framework of exercising its judicial discretion – reach the conclusion that there is no room to depart from the holdings in the Tamrin Case, after weighing additional considerations on different planes. To be precise: the institutional considerations do not stand alone, and their weight changes according to the circumstances of the matter. In the present case, additional considerations exist that justify the determination that renewed discussion of the question that was decided in the Tamrin Case is not warranted.

25.  First, the appellants barely dealt with the holdings of the Court in the Tamrin Case. The sources to which the appellants referred were directed primarily at indicating that Israeli nationality was already created in 1948, with the establishment of the State of Israel, as part of the civil-national conception in which they believe. However, the judgment in the Tamrin Case – and its holdings – was handed down over twenty years after the establishment of the State of Israel. The arguments on principle that the appellants raise were therefore considered by the Court in the Tamrin Case, and were dismissed on the merits.

Secondly, the appellants do not deal with the existence of deeply-rooted conceptions in the Israeli public and in the case law in relation to the interpretation of the term “nationality” in Israeli law. The appellants’ argument is therefore a normative one, to the effect that there ought to be recognition of the existence of an Israeli nationality as derived from Israeli citizenship, and the existence of other nationalities amongst Israeli citizens should be rejected. The hurdle that the appellants must overcome is, as stated, on the objective plane. However, apart from elucidating their coherent world view on the matter, the appellants have not presented a factual basis for the contention that the general public’s approach to the concept of “nationality” has changed between the judgment in the Tamrin Case and nowadays.

Thirdly, the appellants have not dealt with the distinction that exists within the Population Registry Law between the nationality item (sec. 2(a)(5) of the Law) and that of the citizenship item (sec. 2(a)(10) of the Law). Many of the sources to which the appellants referred in support of their arguments about the existence of an Israeli nationality refer to nothing other than Israeli citizenship. Thus, for example, the term “Israeli nationality” in the Ships Ordinance means only citizenship, and this is also the meaning of the term “nationality” that appears in the Israeli passport. The distinction between citizenship and nationality is not new to us. The substantive item of the two is, of course, the citizenship. Citizenship creates an ongoing legal connection between the individual and his state (HCJ 754/83 Rankin v. Minister of the Interior [1984] IsrSC 38(4) 113 (hereinafter: Rankin Case), at p. 117; and see Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. 2: Governmental Authorities and Citizenship (6^th ed., 2005), 1071 (Heb.)). This connection is important in broad areas of law. From the citizen’s point of view –  

It has the capacity to accord him rights, to grant him powers, to impose duties upon him and to recognize his immunity in various, varied matters. Citizenship is connected to the right to vote in the elections to the Knesset, to hold various public offices, to the jurisdiction of the courts, to matters of extradition and many and varied matters …(the Rankin Case, at p. 117).

A person’s citizenship is registered, as stated, in the population registry according to sec. 2(a)(10) of the Law, and this registration does constitute proof of its accuracy. Nota bene: it is crystal clear that the reliance of the appellants on statutory provisions in Israeli and international law relating to citizenship does not stem from a confusion of terms on their part. As we saw, the appellants’ desire to bring about a unification of these two terms is the ideological underpinning of their motion and the conception of nationality that they support. At the same time, when they asked the Court to depart from the case law, they did not grapple with the existence of the said distinction in the Law.

26.  At the same time, and possible even more importantly: in my view, the existing law affords the appellants a possible course of action that may bring about the desired result from their point of view, even if only partially, without the Court having to depart from the decision in the Tamrin Case by declaring the objective existence of an Israeli nationality. This is by way of registration in the population registry as Israeli citizens only. Such a course of action is based on the ruling in the Shik Case, where it was held that when a person asks to leave the “nationality” field blank, he need only prove the sincerity of his request (this, similar to the recent decision of the Tel Aviv-Jaffa District Court in RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011), in the framework of which the court granted Kaniuk’s request for declaratory relief that enabled the deletion of the word “Jewish” from the “religion” field). In the Tamrin Case the appellant sought relief of this type – a declaration that he is not part of the Jewish nation – as alternative relief as part of his summations. This request was dismissed in limine, for it appeared for the first time in the framework of the summations at the appeal stage, and had not been raised in the District Court or during the hearing on the appeal itself. However, President Agranat added that the request ought also to be denied on the merits, since the only reason underlying it is the appellant’s desire to express his disapproval of the statutory amendments that were made pursuant to the First Shalit Case. In this, the Court reiterated the holdings in the Shtederman Case judgment. It would seem – prima facie – that this is not the situation in the present case. The appellants, some of whom are registered as Jewish in the “nationality” field and some as being of other “nationalities”, are not seeking to express their objection to the limitations set in the legislation on registration of a person as “Jewish” by nationality; rather, they wish that true expression be given to their subjective self-definition. Even if the sought-after relief is not granted in full, it would appear that adoption of the course of action established in the Shik Case could, to a certain extent, serve their purposes. On the one hand, they will no longer be “labeled” as belonging to a nation to which they do not wish to belong according to their declaration (whether it is “Jewish”, “Hebrew”, “Arab” or other). On the other hand, they can continue to define themselves – to themselves and to the whole world – as Israelis according to their Israeli citizenship, which will continue to be registered in the population registry. If the appellants’ wish is that the registry reflect their approach whereby citizenship is the appropriate characteristic for inclusion in the definition of a person’s identity, then omission of the contents of the “nationality” field in the entry that relates to them, while leaving the citizenship in place, can serve this purpose faithfully.

True, the circumstances in the present case are somewhat different from those in the Shik Case. There, the discussion was of the matter of a person who declared that he does not belong to any nation (“negates nationality altogether and sees himself as a cosmopolitan who does not belong to any nation”), whereas in our case, the appellants claim that they belong to the Israeli nation. At the same time, if this Court is convinced of the sincerity of the declaration of the appellants that they no longer wish to appear as being of the nationality under which they are presently registered, it would seem that this ruling might be applied to them as well. In my view, this is the inevitable outcome of the principle of human dignity, for in labeling a person as a member of a nation to which he feels no connection we violate his right to self-determination, which the Court already discussed in its early judgments (the Shik Case, at p. 7, per Justice Berenson; the First Shalit Case, at p. 511, per (then) Justice Sussman). Needless to say, this has been reinforced following the enactment of Basic Law: Human Dignity and Liberty, which accords human dignity constitutional status.

Nota bene: relief such as this was not requested in the proceedings that were the subject of the appeal, for this was not the declared wish of the appellants, and therefore there is no room to grant this relief in the framework of the present discussion. Nevertheless, the existence of this possible course of action for erasing the entry of the nationality entry – in reliance on the decision in the Shik Case – is in my view an important consideration amongst the whole array of considerations leading to the conclusion that a departure from the law as decided in the Tamrin Case is not warranted.

Conclusion

27.  The appellants seek a declaratory judgment that will serve as a pubic document for the purpose of amending their registration under the “nationality” field in the population registry to “Israeli”. The lower court denied the request, ruling that this was an issue that was not justiciable.

We discussed the theoretical complexity and the institutional sensitivity involved in examining the question of the existence of “Israeli nationality”, which is tied to fundamental questions about the State of Israel and the Jewish people: the relationship between religious identity and national identity; competing theoretical conceptions of the term “nationality” and their application in our case; the connections between the State of Israel and Diaspora Jewry; the relations between different sectors of the citizens of the State and their national affiliation. Indeed, this sensitivity necessitates restraint in exercising judicial discretion. The natural place for these discussions is not in the courtroom, but in other arenas of public discourse and scholarly writing, hence the reliance of the lower court on the doctrine of institutional justiciability.

At the same time, I cannot adopt the holding of the lower court on the question of institutional justiciability. As we have seen, issues connected to the contents of the fields of religion and nationality in the population registry (and in particular, the question of “Who is a Jew”) have been brought before this Court since its inception. The Court has indeed repeatedly emphasized that the population registry is not the appropriate forum for deciding on the sensitive issues of religion and nationality, and has explained that its holdings on these issues do not settle the questions on their merits. Nevertheless, the view that these issues are not justiciable has remained a minority view.

Relying on the case law relating to the technical nature of the act of registration in the population registry, the Court has not refrained from extending relief to those who turn to it, even when in the background there were “sensitive” issues of conversion, Jewish law, religious identity and national identity. And more importantly, in the Tamrin Case discussed above, this Court deliberated the issue brought before it on the merits, and ruled that the existence of an Israeli nationality had not been proven by objective criteria. As such, we have been asked to reopen the discussion on this question, after it has already been decided by this Court.

Even though the institutional considerations cannot lead to a determination that the issue is non-justiciable, they can impact on the willingness of this Court to reopen the discussion of this matter. Therefore, if the appellants seek to depart from the decision in the Tamrin Case, they bear a significant onus that requires – at least – the presentation of arguments that were not considered at the time by this Court and that clearly indicate that there is a need for a change. Such arguments were not, as explained, presented before us. In addition, I found that even without changing the Tamrin Case ruling, the existing law provides the appellants with a course of action that would allow them to define themselves – to themselves and to the whole world – as Israelis according to their Israeli citizenship, which would continue to be registered in the population registry, without any connection to the “nationality” item. This could be done by following the appropriate procedure for erasing the registration of “nationality”, in accordance with the law as decided in the Shik Case.

In the balance between the various considerations, I have concluded that the appellants have not lifted the onus that they bore to justify a departure from the holdings in the Tamrin Case. I will therefore propose to my colleagues that the appeal be denied, with no order for costs, and I will clarify that denial of the appeal in no way detracts from the principled battle of the appellants, born of their personal convictions, and from the discourse that will continue in the public domain.

 

Justice H. Melcer

I concur in the comprehensive, carefully-crafted judgment of my colleague, Justice U. Vogelman, in which he dismissed the claim of institutional non-justiciability in the present case, and reached the conclusion that the appellants did not lift the burden that they bore to show justification to depart from the judicial determinations made in the Tamrin Case. I also agree with the result at which my colleague arrived, whereby the appeal should be denied, with no order for costs.

Nevertheless, due to the importance of the questions that arose in this case, and in view of the fact that on several matters, my opinion differs slightly from that of my colleague, I will permit myself to elucidate my approach to the questions on which we do not entirely agree. I will focus only on the legal aspect, for the issues that the appellants seek to raise obviously also touch on deep disagreements in public, philosophical and historical areas, although in my view, as in that of my colleague, this does not lead to normative or institutional non-justiciability of the legal issues involved in the questions arising here (see and compare the deliberations and the different results that were obtained, pursuant to changes in the legislation, in each of the Shalit cases – the First Shalit Case in 1970, and the Second Shalit Case in 1972).

2.    It seems to me that the fact that decades have passed since the judgment in the Tamrin Case entitled the appellants to initiate new proceedings (HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004)), and OM 6092/07 in the Jerusalem District Court, the object of this appeal, pursuant to the judgment in HCJ 11286/03 above) and to argue for factual and normative changes that justify, in their view, a departure from the Tamrin Case decision insofar as they are concerned. In relation to the considerations that allow for the “opening” of constitutional issues that have been settled (particularly with respect to the validity of laws, but regarding other matters as well), see my opinion in HCJ 466/07 MK Zehava Gal-On v. Attorney General (11.1.2012).         

3.    Against the background described in para. 2 above, I have reached the conclusion that the appellants have not succeeded in showing that over the many years that have passed since the decision in the Tamrin Case was handed down, an “Israeli nationality” has developed (factually or legally) in Israel, as they claim, to which members of different religions, or those without religion, or those who belong, or belonged, to various ethnic groups are meant to belong.

And indeed, a people and a nation are not easily created. Even Amir Gilboa, in his famous “Song of the Morning”, which in its first verse and the chorus refers to a situation in which –

“Suddenly a man wakes up in the morning 

He feels he is a people and begins to walk

And to all he meets on his way he calls out ‘Shalom!’”

qualifies himself as the song continues, and writes – out of historical awareness – thus:  

And he laughs with the strength of generations in the mountains,

And shamed, the wars bow down to the ground, 

To the glory of a thousand years flowing forth from the hiding places, 

A thousand young years in front of him 

Like a cold stream, like a shepherd's song, like a branch.

(Emphasis added – H.M.)

Hence the appellants, even though they are wise and have attained impressive personal achievements, and have contributed to Israeli society (and this indeed is my opinion of them), and all feel subjectively that they belong to the “Israeli nation”, cannot establish (at this stage, at least), a legal entity of an “Israeli nationality”. At this point two comments are in order:

(a)   The list of nationalities recognized by the Ministry of the Interior, which includes some 140 items (appendix 4 of the appellants’ statement of claim in the District Court) is in fact substantively different in its characteristics from that which the appellants are seeking (this list contains nationalities that are defined according to sovereign states (such as Italian nationality, Belgian nationality, Polish nationality etc.), nationalities with no sovereignty (such as Kurdish nationality), nationalities of religious-ethnic groups (such as Samaritans, Druze etc.), and even Hebrew nationality, which was recognized with respect to the members of the “Young Hebrews” Movement (so named at the time by their opponents, the “Canaanites”), when this movement emerged in Israel (this was before the enactment of sec. 4B of the Law of Return, and prior to the “constitutional revolution”)).

(b)   Appellant no. 1, Professor Uzi Ornan, registered at the time by virtue of his declaration as being of “Hebrew nationality”, and now, with the passage of the years, he asks to “change nationality” and to be considered as belonging to what he defines as “Israeli nationality”. This requested change from one nationality to another nationality attests, in itself, to the fragility of the distinctions proposed by the appellants.

4.    Neither do the legislative changes that have occurred since the decision in the Tamrin Case support the appellants’ approach: the opposite may even be true. I will deal with this point forthwith; before that, however, I would point out that I do not accept the central legal proposition of the appellants, which is as follows:

A ‘Jewish sovereign entity in the Land of Israel’ does not exist, but rather a sovereign entity called Israel, and its decisions are made by the Israeli nation – the entire citizenry only, without distinction of race, religion or sex …”

(para. 17 of the appellants’ written arguments; at the end of that paragraph, the appellants added another statement in relation to what, in their view, is an inevitable disconnection from Jews outside of Israel; below, therefore, I will discuss separately the connection between Israel and Diaspora Jewry).

The above basic proposition is problematic in several respects:

(a)   The proposition ignores the “constitutional given” (this expression is borrowed from the opinion of President Agranat in EA 1/65 Yardur v. Knesset Elections Committee [1964] IsrSC 19 (3) 365, at p. 386), by virtue of which Israel is defined at the constitutional level – at least since 1992 – as a “Jewish and democratic state”, in the framework of the provisions that were then introduced into the Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. For the significance of this, see: Hanan Melcer, “The IDF as the Army of a Jewish and Democratic State”, Mishpat ve-Asakim 14, Mishpat ve-Adam Festschrift for Amnon Rubinstein (2012) 347) (hereinafter: Melcer, IDF as the Army of a Jewish and Democratic State). See also: Menachem Mautner, “The National Identity of Israel and the Problem of Equality”, in Arab Politics in Israel at the Crossroads, 111-112 (1995), who stated that “the process of victory of ‘Judaism’ over ‘Hebrew-ism’ received symbolic expression in 1992” (in the above two Basic Laws), and added:

… We recognize the power of the law to determine the culture … the law also determines identities. Identities of persons, and identities of groups. The two Basic Laws of 1992 are an example of laws that seek to determine national identity.

Elaboration of these subjects is found in Prof. Mautner’s book, Law and Culture in Israel at the Beginning of the Twenty-First Century, Chap. 2, and pp 31-32, 298, 365, 345, 420, 565-566 (2008)(Heb.) (hereinafter: Mautner, Law and Culture in Israel). It is noteworthy that Prof. Mautner, both in his above article and in his above book, supports the adoption of an inclusive element of identity that is “Israeli-ism” in the constitutional conception of the state, but in his view, too, this is the ideal law, and not the existing law (as opposed to the approach of the appellants, who believe that their request is grounded in the existing law).

(b)   The proposition displays a certain confusion of concepts on the part of the appellants. Israel is defined internationally (since the United Nations decision on the “Partition”) and internally (at least since the enactment of the above two Basic Laws, and even prior to that, by virtue of what emerges from the Law of Return – 1950 ) hereinafter: law of Return) and the Declaration of Independence), as the nation-state (medinat hale’om) of the Jewish People. The fact that it is also the national-state (medinat ha’umah) of its Israeli citizens – whoever they may be – does not negate its identity as the nation-state of the Jewish people (the term “nationality” (Le’um) refers to the components of the People that lives in the state, whereas the concept of “nation” (Umah)  relates to the citizens of the state. And see: Mautner, Law and Culture in Israel, at p. 32). See also: Prof. Ruth Gavison, “The National Rights of the Jews” (hereinafter: Gavison); Sir Martin Gilbert, “An Overwhelmingly Jewish State”: From the Balfour Declaration to the Palestine Mandate; Prof. Shlomo Avineri, “Self-Determination and Israel’s Declaration of Independence” – all from: Israel’s Rights as the Nation State of the Jewish People, Alan Baker (ed.), 2012, at pp. 8, 22 and 32 respectively (Heb.)).

In her article, Prof. Gavison argues that a distinction must be made between a national-ethnic identity and a national-civil identity (a distinction that the appellants ignore). She explains that in many contexts, nationality does not refer to civil identity, but to the desire of a particular ethnic (national) group to achieve political independence. She explains her position as follows:

…For otherwise, it would be illogical to talk of “national minorities” because by definition such minorities could not exist within any state. (ibid., at p. 12).

And she further clarifies:

The argument that the Jews are a nationality distinguishes between citizenship and cultural-national identity. All Israelis – both Jews and Arabs – share citizenship and a number of cultural characteristics … Nevertheless, Arabs and Jews both aspire for recognition as belonging to their national (Jews as opposed to Arabs) and religious (Jews, Muslims, Druze and Christians) group (ibid., at p. 12).

Furthermore, in her view –

There are also significant differences within these religious and national groups. Each of these identities is likely to entail practical implications. Jews who are citizens of other states do not aspire for those states to recognize their national rights. It is quite possible that they will choose to migrate to the only national (ethnic) state in the world of the Jews and thereby realize their national rights. They are also likely to maintain their non-Jewish (civil) nationality, and to recognize their cultural ties with the only country in the world that is the nation state of the Jews (ibid., at p. 12).

(c)   The proposition seeks to read the Declaration of Independence in a new way and to say that by virtue of the Declaration, the “Israeli” nationality was established, comprised of members of the “independent Hebrew people in its land” and members of the “Arab people who are citizens of the State of Israel.” This approach was already rejected in the Tamrin Case, based on an analysis of the Declaration of Independence – see p. 221 of the opinion of President Agranat, who stated, inter alia, as follows:

The Declaration [states – H.M.] that ‘the State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles’ – this incorporates … the mission of a melding of the diasporas into ‘one people’…. I have only mentioned this … in order to stress that the great event that was the establishment of the State of Israel … did not happen to us so that a split would occur in the midst of the nation – Jewish on the one side, and ‘Israeli’ on the other.

This position expressed by President Agranat has become even more pertinent as the Basic Laws now refer, directly and explicitly (alongside their definition of the State of Israel as Jewish and democratic) – to the principles of the Declaration. See: Rubinstein and Medina, Vol. 1, at pp. 41-43 (6^th ed. 2006) (hereinafter: Rubinstein and Medina). These principles include recognition of the legitimacy of the existence of the State of Israel as a Jewish State, based – as Rubinstein and Medina say –on three central foundations:

(1)   The United Nations Resolution of 29 November 1947, according to which a Jewish State will be established in the Land of Israel.

(2)   Moral recognition of the right of the Jewish people to self-determination in a national framework.

(3)   The practice in nation states, accepted by other democracies in the world, which negates the contention that a democratic system requires a “neutral state” from a national point of view.

(ibid., at pp. 322-323; for an elaboration of these issues, see: A. Yakobson and A. Rubinstein, Israel and the Family of Nations – The Jewish Nation State and Human Rights (2003); R. Gavison, Israel as a Jewish and Democratic State: Tensions and Chances (1999) (Heb.)).

Prof. Chaim Gans, whose general approach is entirely different, also does not dispute the fact that in the Declaration of Independence, expression was given to a three-fold justification for Zionism and its realization in the State of Israel. According to him, these three justifications, that were mentioned in the Declaration, included:

(1)   The historical connection between the Jews and the Land of Israel;

(2)   The right of Jews to stand on their own like every other people, i.e. their right to national self-determination;

(3)   The defense of necessity, which is learned from the persecutions of the Jews and from the Holocaust.

According to Gans’ approach, these justifications constitute the moral skeleton of the Israeli Declaration of Independence, if they are read in such a way that only the three together can provide legitimacy for the establishment of the State of Israel. See: Chaim Gans, “The Threefold Justification for Zionism”, Ha’aretz, Weekend Magazine, 30.8.2013, pp. 66-69 (Heb.) (for elaboration, see: Chaim Gans, Political Theory for the Jewish People – Three Zionist Narratives (2013), and the references to the Declaration of Independence, ibid., as per the Index).

The appellants were unable to respond to these interpretations, which, even if they stem from different world views, reflect a significant degree of agreement with respect to the contents of the Declaration of Independence in these contexts, and its significance for their arguments.

5.    Following the above preliminary remarks, I will now turn from the general principles to a description of the extant law, and I will emphasize that the combination of “Jewish and democratic state” has indeed brought about an extremely significant change here, gaining recognition in every normative arena in which the constitutional law of Israel is shaped. For various reasons, this phrase emerged in 1992 from the “stage of obscurity” (which was reflected in the expression, “Rock of Israel”  that appeared in the Declaration of Independence – see: Yoram Shahar, “The Early Drafts of the Declaration of Independence”, Iyunei Mishpat 26 (2002) 523, 526-530 (Heb.); Yizhar Tal “Declaration of Independence – A Historical, Interpretative Study” Mishpat Umimshal  6 (2003) 551, 564-565 (Heb.); Pinhas Shifman, One Language, Different Tongues – Studies in Law, Halakhah and Society (2012), 20, 27-28 (Heb.)) and entered the “the stage of declarations”. See Melcer, The IDF as the Army of a Jewish and Democratic State, 351. This has a direct impact on our matter, for the appellants wish to raise objections, as we have said, to the significance of the Jewish nation and to Israel being the Jewish nation state. In this context I would like to further remark that in addition to sec. 1A of Basic Law: Human Dignity and Liberty and sec. 2 of Basic Law: Freedom of Occupation, which refer to the values of the State of Israel as a Jewish and democratic state, sec. 7(a)(1) of Basic Law: The Knesset also refers and characterizes Israel as a “Jewish and democratic state”, the existence of which as such may not be denounced. These approaches also found expression in regular legislation – see: State Education Law, 5713-1953, sec. 2(b); Electoral Parties Law 5752-1992,  sec. 5(1); Culture and Arts Law 5763-2002, sec. 2(c); Special Cultural Educational Institutions, 5768-2008, sec. 2(b); and Terminally Ill Patient Law, 5768-2008, sec. 1(b).

Due to the importance of the above change in relation to the constitutional characterization of the State, a great deal has been written on the various aspects of the significance of the combination “Jewish and democratic state”, and in particular, on the tension between the “Jewish state” and the “democratic state”, and on the ramifications of the “Jewishness” of the State. See, for example, a select sample: Haim H. Cohn, “The Value of a Jewish and Democratic State – Studies in Basic Law: Human Dignity and Liberty” Hapraklit, Jubilee Volume 9 (1993) (Heb.); Ariel Rosen-Zvi, “A Jewish and Democratic State: Spiritual Paternity, Alienation and Symbiosis – Can the Circle be Squared?” Iyunei Mishpat 19(3) (1995), 479 (Heb.); Asher Maoz, “The Values of a Jewish and Democratic State”, Iyunei Mishpat 19(3) (1995), 547 (Heb.); Ruth Gavison, “A Jewish and Democratic State: Political Identity, Ideology and Law”, Iyunei Mishpat 19(3) (1995), 169 (Heb.); Ruth Gavison, “A Jewish and Democratic State: Challenges and Risks”, Multiculturalism in a Jewish and Democratic State – Ariel Rosen-Zvi Memorial Volume (Menahem Mautner, Avi Sagi, Ronen Shamir eds., 1998), 213 (Heb.); Asa Kasher, “Jewish and Democratic State – a Philosophical Sketch”, Ruah Ish 13 (2000) (Heb.); Mordechai Kremnitzer, “The Image of the State of Israel as a Jewish and Democratic State” in The Jewish Character of a Democratic State (Aviezer Ravitzky and Yedidia Stern, eds., 2007), 395 (Heb.); Aharon Barak, “The Values of the State of Israel as a Jewish and Democratic State” in Aharon Barak – Selected Writings, vol. 1 (Haim H. Cohn, Yitzhak Zamir eds., 2000) 445 (Heb.); Aharon Barak, Legal Proportionality: Constitutional Rights and their Limitations (2010), 302-316 (Heb.); Yitzhak Zamir, Administrative Authority vol. 1 (2^nd ed., 2010) 59-72 (Heb.); Amnon Rubinstein, “The Curious Case of Jewish Democracy”, Techelet (2010) 41, 78 (Heb.); Melcer, The IDF as the Army of a Jewish and Democratic State; see also all the papers in Israel as a Jewish and Democratic State (Asher Maoz, ed., 2011). As for the case law, the term “Jewish and democratic state” has been mentioned to date, in various contexts, in hundreds of judgments of this Court.

For our purposes it is important to emphasize that the “constitutional Jewishness” of the state negates the legal possibility of recognizing an “Israeli nationality” which is distinct, as it were, from the “Jewish nationality”, as so succinctly elucidated by President Agranat in his decision in the  Tamrin Case even prior to these Basic Laws (even more so -  this the inevitable conclusion after their enactment). Moreover, negation of the other nationalities in Israel and the inclusion of all of them in one “Israeli nationality” is contrary to the democratic nature of the State.

6.    The appellants are apparently aware of the above conclusions, and they are therefore attempting to blur the distinction between citizenship and nationality (or alternatively, to omit the “nationality” item from the population registry). Nevertheless, they are not able to explain why, under the extant law, these two must be entered separately in the population registry under sec. 2(a) of the Population Registry Law, 5725-1965 (hereinafter: Population Registry Law). I therefore agree with my colleague, Justice U. Vogelman, that all the appellants’ arguments concerning the existence of Israeli nationality in fact relate to Israeli citizenship. To the examples he cited in par. 25 of his opinion I will add that even the appellants’ argument in relation to the Law and Administration (Nullification of the Application of Law, Jurisdiction and Administration) Law, 5759-1999 (hereinafter: the Referendum Law), does not support their contention. The appellants attempt to deduce from the institution of “referendum” and from the provisions of the Referendum Law that within the bounds of “the people” – as a collective noun –all Israeli citizens of the state are included, as one nationality. However, the Referendum Law states, in sec. 6, only that –

A person shall have the right to participate in a referendum if he would have had the right to participate in elections to the Knesset had these been held at the time of the referendum. (Emphasis added – H.M.)

Section 5 of Basic Law: The Knesset, provides in this context as follows:

Every Israeli citizen of or over the age of eighteen years shall have the right to vote in elections to the Knesset, unless the court has deprived him of that right by virtue of any Law; the Elections Law shall determine the time at which a person shall be considered to be eighteen years of age for the purpose of the exercise of the right to vote in elections to the Knesset. (Emphasis added – H.M.)

From the above it transpires that in the Referendum Law also (the validity of which is now being examined in a petition before us in HCJ 9149/10 Dr. Vatad v. Israeli Knesset (13.5.2014)), eligibility to participate in a referendum is contingent upon Israeli citizenship (as well as majority), and not on affiliation to one nationality or another.

7.    Here I will also remark that in relation to the connection between Israel and Diaspora Jewry, from which the appellants wish to dissociate themselves in order to isolate the “Israelis” from the “Jews” and vice versa, the appellants were not sufficiently precise from a legal point of view. One of the characteristics of Israel as a Jewish state is –

… its responsibility for the fate of the Jewish people as a whole, because it was established as an expression of universal Jewish solidarity. In view of this responsibility, it has the right and the duty to employ the tools of collective state action for the protection of Jews who are harmed “qua Jews.” (See: Prof. Moshe Halbertal, “Is a Jewish Democratic State Possible” (Ha’aretz Weekend Magazine, 22.4.2013).

A manifestation of this may be found in sec. 13(b)(2) of the Penal Law, 5737-1977, which applies Israeli penal law to foreign offenses against “the life, body, health, freedom or property of  a Jew, as a Jew, or the property of a Jewish institution, because it is such.” This provision attests to the general approach of the legislator in relation to the protection of world Jewry that Israel is expected to provide.  See: Melcer, “The IDF as the Army of a Jewish and Democratic State”, at p. 354.

This is also the view of Prof. S.Z. Feller and Prof. Mordechai Kremnitzer in their article: “Reply to the Article ‘Against Extra-Territorial Application of Penal Law on National Grounds’ by Y. Shachar”, Plilim (1996), 65-69 (Heb.), and see especially what the authors write on p. 88:

The most serious anti-Jewish events … in which so many Jews were murdered and injured and so many institutions throughout the world damaged only because they were Jewish – for example in France, Italy, Belgium, Austria, Turkey, Argentina .… It seems that the Jewish people, which has been persecuted most cruelly throughout its long history, has accumulated a feeling of solidarity in its heart, irrespective of the citizenship of each individual Jew, which obligates Israel, as a Jewish state, to spread the net of its penal law to such injuries, whether or not they were successful, and to ensure that being brought to justice for these deeds will not encounter any legal consideration that is based on foreign law, or on an act of a foreign court.

This logic also underlies the Nazi and Nazi Collaborators (Punishment) Law, 5710-1950.

8.    I shall now proceed from the general to the specific, and deal with the relevant specific legislation. In this aspect, the appellants did not attempt to engage the compelling argument voiced at the time by (then) Justice Y. Kahan in the Tamrin Case, who referred to sec. 3A of the Population Registry Law. This section today provides as follows:

3A (a)  A person shall not be registered as a Jew by nationality or religion if a notification under this Law or another registration in the Registry or a public document indicates that he is not Jewish, so long as the said notification, registration or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a rabbinical court in an action of a litigant who is a resident concerning matters of marriage and divorce in accordance with sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, or of a court, provided that he is not a member of another religion.

     (a1) If in the opinion of the Registration Officer, the notification, registration or public document as aforesaid in sec. (a)  above were not presented to the rabbinical court or the court that made the determination as aforesaid in that section, he may approach the rabbinical or civil court, as relevant, and present the above to the court, and he is entitled to defer the registration, its amendment or change thereof until a decision is rendered by the rabbinical or civil court.

     (b)   For the purposes of this Law and any registration or document by virtue thereof, “Jew” – within its meaning in sec. 4B of the Law of Return, 5750-1950. (Section 4B of the Law of Return defines “Jew” as a person who was born of a Jewish mother, or who has converted to Judaism, and who is not a member of another religion.)

     (c)   Nothing in this section shall derogate from any registration that was made prior to its coming into force.”(Emphasis and comments in parentheses added – H.M.)

Hence, (then) Justice Y. Kahan  deduced, in the Tamrin Case,  that a Jewish person’s affiliation to the Jewish nation, for the purpose of registration, must be determined in principle according to a single criterion,  i.e., whether the conditions for the definition of a Jew in the Law of Return have been met (here I must comment that in these contexts, questions remain on the meaning of “converted to Judaism, and who is not a  member of another religion”; however, these questions are not relevant to the dispute before us. Moreover, even the monikers “the Jewish People” and “the Hebrew People” have undergone changes and taken on various meanings over the ages. See: Meir Sternberg, Hebrews Between Cultures: Group Portraits and National Literature (Indiana Uni. Press, 1998); Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (Harvard Uni. Press, 2010).

The appellants did not furnish a satisfactory response to the above approach of Justice Y. Kahan (and I will add that the legislative amendments brought about in sec. 3A of the Population Registry Law since the decision in the Tamrin Case have no bearing on our matter), and it therefore remains valid today. Hence, for the purposes of changing the item of nationality, the subjective feelings and views of the person requesting the change are unimportant; what is important is the provisions of the law and the accepted definitions of nationality. Nevertheless, the need may arise in the future to introduce certain legislative changes, in the framework of which it may also be possible to recognize some “local” nationality, one which will be created with the years, even if only in relation to the thousands who immigrated to Israel (as the relatives of Jews) by virtue of sec. 4A of the Law of Return, similar to the process behind the enactment of the Civil Union for Persons Having No Religious Affiliation Law, 5770-2010. It would be possible to include the appellants and those like them within this framework.

9.     From what has been said to this point, and particularly in view of the argument discussed in para. 8 above, it is clear that I cannot agree to the course that my colleague, Justice U. Vogelman, described in para. 26 of his opinion for the appellants to consider adopting in the future. First, I cannot accept this because it was not something that the appellants requested in the framework of this process – the subject of the appeal before us – and my colleague indeed mentions this. To this I will add that in the Tamrin Case, even though the appellant there did make a request of this type in the framework of the appeal process, the Court decided not to accept it. This applies here a fortiori, where such alternative relief was not even sought. Needless to say, we have not heard arguments on this matter. Moreover, one can also argue about the distinctions that my colleague drew in these contexts (in view of the decision in the Shik Case). I will therefore confine myself to commenting that as distinct from citizenship and from religion, which can be “renounced” or changed, and for which there is also usually an institution or a “ceremony” by means of which, or with the authorization of which, the “renunciation” or “change” are performed – it is usually very difficult to renounce one’s nationality (just like a child cannot, in principle, “renounce” his parents). I will not go into the question here of whether one can hold “dual nationality” (like “dual citizenship”) and in what cases precisely is it possible to be a “universal person” lacking any nationality – a status claimed by Isaiah Shik, and which was granted to him.

10.   Beyond all that has been said so far, I believe that President Agranat’s conclusion in his monumental decision in the Tamrin Case – in which all the other justices on the panel concurred – according to which, as Justice H. Cohn said there, “It was not proved that legally, an ‘Israeli nationality’ exists, and we ought not to encourage the creation of new national ‘fragments’” – is still valid.

11.   Before concluding I would emphasize that the most that can be said in the context of the appellants’ position was expressed in the concluding paragraph of the opinion of the District Court (per (then) Judge N. Sohlberg), who stated:

There is nothing in this decision to say that there is no Israeli nationality – in a person’s heart, in the platform of a group of people, amongst a particular sector in the state. On the contrary, Prof. Uzi Ornan, like the other petitioners, believes that he is a member of the Israeli nation. This belief deserves respect and appreciation from those who share his view and those who oppose it.

My colleague, Judge Sohlberg, added “this belief does not require legal approval”; I however, believe that according to the prevailing legal situation, the subject is justiciable, but the demands of the appellants cannot be grounded in the existing law.

12. What emerges at this time from all the above is that in the current legal situation, citizenship is one thing, and nationality is another. Together with this basic position, several additional conclusions must be drawn:

(a)  With respect to the members of different nationalities who reside in Israel – at this point the separate nationalities should not be “unified” and legally gathered into a new, inclusive “Israeli nationality”, for this controverts both the Jewish and the democratic character of the state  (with respect to all the nationalities in our country, including Jewish nationality).

(b)  Insofar as the Jewish nationality is concerned – it has been proved thus far that the Seer of the State, Dr. Benjamin Zeev Herzl, was right when he wrote in his book, The Jewish State (1896):

I think the Jewish question is no more a social than a religious one, notwithstanding that it sometimes takes these and other forms. It is a national question … We are a people – one people. (Emphasis added – H.M; from the Introduction to the book, The Jewish State (in Hebrew, see: http://benyehuda.org\herzl_003.html)

(c)  The State of Israel was established and exists as a Jewish and democratic state as a solution for the Jewish people, which has suffered severe persecutions over the centuries and was mortally wounded in the Holocaust, and this is also one of the reasons for its definition – constitutionally – as such. There is therefore no legal basis for the appellants’ desire to negate the “Jewishness” of the State and to make all its citizens members of an “Israeli nationality”. The said determination does not, of course, detract from the obligation of the State, as derived, too, from the Jewishness of the State and from its democratic character, to protect and to grant full equality to all its citizens, residents and those over whom it has control, irrespective of nationality, race, religion, ethnic group and sex.

 

President Grunis

I concur in the opinions of my colleagues, Justice U. Vogelman and Justice H. Melcer, that the decision in the Tamrin Case applies to the matter which is the subject of the appeal, and that it has lost none of its validity. As such, I see no need to address the question of whether the District Court was justified in dismissing the appellants’ request on the grounds that the issue is non-justiciable from an institutional point of view. And another remark in relation to the proposal of my colleague, Justice U. Vogelman, that the nationality field in the population registry remain blank in the case of the appellants (para. 26 of his opinion): since this possibility was never raised by the appellants, I explicitly refrain from relating to it.

 

Appeal denied, with no order for costs.

28 Tishri 5774

October 2, 2013

Amended: 2 Heshvan 5774

October 6, 2013

 

 

CrimA 6659/06

CrimA 1757/07

CrimA 8228/07

  CrimA 3261/08

 

1 . A

2.  B

v

State of Israel

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[5 March 2007]

Before President D. Beinisch and Justices E.E. Levy, A. Procaccia

 

 

Appeals of the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) on 16 July 2006, 19 July 2006, 13 February 2007 and 3 September 2007, and the decision of the Tel-Aviv-Jaffa District Court (Justice D. Rozen) on 20 March 2008.

 

Legislation cited:

Internment of Unlawful Combatants Law, 5762-2002

Emergency Powers (Detentions) Law, 5739-1979

 

Israel Supreme Court cases cited:

[1]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 44(1) 721.

[2]        HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[3]        HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[4]        HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2006) (unreported).

[5]         HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

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

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

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

[9]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2006] IsrSC 60(2) 477; [2005] (2) IsrLR 106. 

[10]      HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior (2006) (not yet reported); [2006] (1) IsrLR 442.

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

[12]      HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006] (1) IsrLR 260.

[13]      HCJ 9132/07 Elbassiouni v. Prime Minister (2008) (unreported).

[14]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[15]      HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247.

[16]      HCJ 11026/05 A v. IDF Commander (2005) (unreported).

[17]       CrimA 3660/03 Abeid v. State of Israel (2005) (unreported).

[18]      HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (2003) (unreported).

[19]      HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[20]      HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior (2005) (unreported).

[21]      CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (2001) (unreported).

[22]      HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[23]      CrimA 4596/05 Rosenstein v. State of Israel (2005) (unreported); [2005] (2) IsrLR 232.

[24]      CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

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

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

[27]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[28]      HCJ 6893/05 Levy v. Government of Israel [2005] IsrSC 59(2) 876.

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

[30]      HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

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

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

[33]      HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[34]      AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[35]      HCJ 2967/00 Arad v. Knesset [2000] IsrSC 54(2) 188.

[36]      CrimApp 8780/06 Sarur v. State of Israel (2006) (unreported).

[37]      HCJ 403/81 Jabar v. Military Commander [1981] IsrSC 35(4) 397.

[38]      HCJ 102/82 Tzemel v. Minister of Defence [1983] IsrSC 37(3) 365.

[39]      ADA 4794/05 Ufan v. Minister of Defence (2005) (unreported).

[40]      ADA 7/94 Ben-Yosef v. State of Israel (1994) (unreported).

[41]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[42]      HCJ 5445/93 Ramla Municipality v. Minister of the Interior [1996] IsrSC 50(1) 397.

[43]        HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [1998] IsrSC 52(1) 75.

[44]      HCJ 253/88 Sajadia v. Minister of Defence [1988] IsrSC 42(3) 801.

[45]      ADA 334/04 Darkua v. Minister of the Interior [2004] IsrSC 58(3) 254.

[46]      HCJ 4400/98 Braham v. Justice Colonel Shefi [1998] IsrSC 52(5) 337.

[47]      HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria (2004) (unreported).

[48]      CrimApp 3514/97 A v. State of Israel (1997) (unreported).

[49]      HCJ 5994/03 Sadar v. IDF Commander in West Bank (2003) (unreported).

[50]      CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006]  (unreported), 2006 (1) IsrLR 320.

[51]      HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 843.

[52]      HCJ 6302/92 Rumhiah v. Israel Police [1993] IsrSC 47(1) 209.

[53]         HCJ 2901/02 Centre for Defence of the Individual v. IDF  Commander in West Bank [2002] IsrSC 56(3) 19.

[54]    CrimA 1221/06 Iyyad v. State of Israel (2006) (unreported).

 

 

For the appellants - H. Abou-Shehadeh

For the respondent - Z. Goldner, O.J. Koehler, S. Nitzan, Y. Roitman.

 

JUDGMENT

 

President D. Beinisch:

Before us are appeals against the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi), in which the internment of the appellants under the Internment of Unlawful Combatants Law, 5762-2002 (hereinafter: "the Internment of Unlawful Combatants Law" or "the Law") was upheld as lawful. Apart from the particular concerns of the appellants, the appeals raise fundamental questions concerning the interpretation of the provisions of the Internment of Unlawful Combatants Law and the extent to which the Law is consistent with international humanitarian law, as well as the constitutionality of the arrangements prescribed in the Law.

The main facts and sequence of events

1.  The first appellant is an inhabitant of the Gaza Strip, born in 1973, who was placed under administrative detention on 1 January 2002 by virtue of the Administrative Detentions (Temporary Provision) (Gaza Strip Region) Order (no. 941), 5748-1988. The detention of the first appellant was extended from time to time by the Military Commander and upheld on judicial review by the Gaza Military Court. The second appellant is also an inhabitant of Gaza, born in 1972, and he was placed under administrative detention on 24 January 2003 pursuant to the aforesaid Order. The detention of the second appellant was also extended from to time and reviewed by the Gaza Military Court.

On 12 September 2005 a statement was issued by the Southern District Commander with regard to the end of military rule in the region of the Gaza Strip. On the same day, in view of the change in circumstances and also the change in the relevant legal position, internment orders were issued against the appellants; these were signed by the Chief of Staff by virtue of his authority under s. 3 of the Internment of Unlawful Combatants Law, on which the case before us focuses. On 15 September 2005 the internment orders were brought to the notice of the appellants. At a hearing that took place pursuant to the Law, the appellants indicated that they did not wish to say anything, and on 20 September 2005 the Chief of Staff decided that the internment orders under the aforesaid Law would remain in force.

2.  On 22 September 2005 a judicial review hearing began in the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) in the appellants' case. On 25 January 2006 the District Court held that there had been no defect in the procedure of issuing internment orders against the appellants, and that all the conditions laid down in the Internment of Unlawful Combatants Law were satisfied, including the fact that their release would harm state security. The appellants appealed this decision to the Supreme Court, and on 14 March 2006 their appeal was denied (Justice E. Rubinstein). In the judgment it was held that the material presented to the court evinced the appellants' clear association with the Hezbollah organization, as well as their participation in acts of combat against the citizens of Israel prior to their detention. The court emphasized in this context the personal threat presented by the two appellants and the risk that they would resume their activities if they were released, as could be seen from the material presented to the court.

3.  On 9 March 2006 the periodic judicial review pursuant to s. 5(c) of the Law began in the District Court. In the course of this review, not only were the specific complaints of the appellants against their internment considered, but also fundamental arguments against the constitutionality of the Law, in the framework of an indirect attack on its provisions. On 16 July 2006 the District Court gave its decision with regard to the appellant's specific claims. In this decision it was noted that from the information that was presented to the court it could be seen that the appellants were major activists in the Hezbollah organization who would very likely return to terrorist activities if they were released now, and that their release was likely to harm state security. On 19 July 2006 the District Court gave its decision on the fundamental arguments raised by the appellants concerning the constitutionality of the Law. The District Court rejected the appellants' argument in this regard too, and held that the Law befitted the values of the State of Israel, its purpose was a proper one and its violation of the appellants' rights was proportionate. The court said further that in its opinion the Law was also consistent with the principles of international law. The appeal in CrimA 6659/06 is directed at these two decisions of 16 July 2006 and 19 July 2006.

On 13 February 2007 the District Court gave a decision in a second periodic review of the appellants' detention. In its decision the District Court approved the internment orders, discussed the appellants' importance to the activity of the Hezbollah organization as shown by the testimonies of experts who testified before it and said that their detention achieved a preventative goal of the first order. The appeal in CrimA 1757/07 is directed at this decision.

On 3 September 2007 the District Court gave its decision in the third periodic review of the appellants' internment. In its decision the District Court noted that the experts remained steadfast in their opinion that it was highly probable that the two appellants would resume their terrorist activity if they were released, and as a result the operational abilities of the Hezbollah infrastructure in the Gaza Strip would be enhanced and the risks to the State of Israel and its inhabitants would increase. It also said that the fact that the Hamas organization had taken control of the Gaza Strip increased the aforesaid risks and the difficulty of contending with them. The court emphasized that there was information with regard to each of the appellants concerning their desire to resume terrorist activity if they were released, and that they had maintained their contacts in this area even while they were imprisoned. In such circumstances, the District Court held that the passage of time had not reduced the threat presented by the appellants, who were the most senior persons in the Hezbollah terrorist infrastructure in the Gaza Strip, and that there was no basis for cancelling the internment orders made against them. The appeal in CrimA 8228/07 is directed at this decision.

On 20 March 2008 the District Court gave its decision in the fourth periodic review of the appellants' detention. During the hearing, the court (Justice D. Rozen) said that the evidence against each of the two appellants contained nothing new from recent years. Nevertheless, the court decided to approve their continued internment after it found that each of the two appellants was closely associated with the Hezbollah organization; both of them were intensively active in that organization; the existing evidence regarding them showed that their return to the area was likely to act as an impetus for terrorist attacks, and the long period during which they had been imprisoned had not reduced the danger that they represent. The appeal in CrimA 3261/08 was directed at this decision.

Our judgment therefore relates to all of the aforesaid appeals together.

The arguments of the parties

4.  The appellants' arguments before us, as in the trial court, focused on two issues: first, the appellants raised specific arguments concerning the illegality of the internment orders that were made in their cases, and they sought to challenge the factual findings reached by the District Court with regard to their membership in the Hezbollah organization and their activity in that organization against the security of the State of Israel. Secondly, once again the appellants indirectly raised arguments of principle with regard to the constitutionality of the Law. According to them, the Law in its present format violates the rights to liberty and dignity enshrined in Basic Law: Human Dignity and Liberty, in a manner that does not satisfy the conditions of the limitation clause in the Basic Law. The appellants also claimed that the Law is inconsistent with the rules of international humanitarian law that it purports to realize. Finally the appellants argued that the end of Israel's military rule in the Gaza Strip prevents it, under the laws of war, from detaining the appellants.

The state's position was that the petitions should be denied. With regard to the specific cases of the appellants, the state argued that the internment orders in their cases were made lawfully and they were in no way improper. With regard to the arguments in the constitutional sphere, the state argued that the law satisfies the tests of the limitation clause in Basic Law: Human Dignity and Liberty, since it was intended for a proper purpose and its violation of personal liberty is proportionate. With regard to the rules of international law applicable to the case, the state argued that the Law is fully consistent with the norms set out in international law with regard to the detention of "unlawful combatants".

5.  In order to decide the questions raised by the parties before us, we shall first address the background that led to the enactment of the Internment of Unlawful Combatants Law and its main purpose. With this in mind, we shall consider the interpretation of the statutory definition of "unlawful combatant" and the conditions that are required to prove the existence of a ground for detention under the law. Thereafter we shall examine the constitutionality of the arrangements prescribed in the law and finally we shall address the specific detention orders made in the appellants' cases.

The Internment of Unlawful Combatants Law - background to its enactment and its main purpose

6.  The Internment of Unlawful Combatants Law gives the state authorities power to detain "unlawful combatants" as defined in s. 2 of the Law, i.e. persons who participate in hostile acts or who are members of forces that carry out hostile acts against the State of Israel, and who do not fulfil the conditions that confer prisoner of war status under international humanitarian law. As will be explained below, the Law allows the internment of foreign persons who belong to a terrorist organization or who participate in hostile acts against the security of the state, and it was intended to prevent these persons from returning to the cycle of hostilities against Israel.

The original initiative to enact the Law arose following the judgment in CrimFH 7048/97 A v. Minister of Defence [1], in which the Supreme Court held that the state did not have authority to hold Lebanese nationals in detention by virtue of administrative detention orders, if the sole reason for their detention was to hold them as "bargaining chips" in order to obtain the release of captives and missing servicemen. Although the original bill came into being against the background of a desire to permit the holding of prisoners as "bargaining chips", the proposal underwent substantial changes during the legislative process after many deliberations on this matter in the Knesset Foreign Affairs and Defence Committee, chaired by MK Dan Meridor. On 4 March 2002, the Internment of Unlawful Combatants Law was passed by the Knesset. Its constitutionality has not been considered by this court until now.

At the outset it should be emphasized that the examination of the historical background to the enactment of the Law and the changes that were made to the original bill, what was said during the Knesset debates, the wording of the Law as formulated at the end of the legislative process, and the effort that was made to ensure that it conformed to the provisions of international humanitarian law evident from the purpose clause of the statute, which we shall address below -  all show that the Internment of Unlawful Combatants Law as it crystallized in the course of the legislative process was not intended to allow hostages to be held as "bargaining chips" for the purpose of obtaining the release of Israeli captives and missing servicemen being held in enemy territory, as alleged by the appellants before us. The plain language of the Law and its legislative history indicate that the Law was intended to prevent a person who endangers the security of the state due to his activity or his membership of a terrorist organization from returning to the cycle of combat. Thus, for example, MK David Magen, who was chairman of the Foreign Affairs and Defence Committee at the time of the debate in the plenum of the Knesset prior to the second and third readings, said as follows:

'The draft law is very complex and as is known, it gave rise to many disagreements during the Committee's deliberations. The Foreign Affairs and Defence Committee held approximately ten sessions at which it discussed the difficult questions raised by this Bill and considered all the possible ramifications of its passing the second and third readings. The Bill before you is the result of considerable efforts to present an act of legislation whose provisions are consistent with the rules of international humanitarian law and which satisfies the constitutional criteria, while being constantly mindful of and insistent upon maintaining a balance between security and human rights...

I wish to emphasize that the Bill also seeks to determine that a person who is an unlawful combatant, as defined in the new Law, will be held by the state as long as he represents a threat to its security. The criterion for interning a person is that he is dangerous. No person should be interned under the proposal as a punishment or, as many tend to think erroneously, as a bargaining chip. No mistake should be made in this regard. Nonetheless, we should ask ourselves whether it is conceivable that the state should release a prisoner who will return to the cycle of hostilities against the State of Israel?' [emphasis added].

The Law was therefore not intended to allow prisoners to be held as "bargaining chips". The purpose of the Law is to remove from the cycle of hostilities a person who belongs to a terrorist organization or who participates in hostile acts against the State of Israel. The background to this is the harsh reality of murderous terrorism, which has for many years plagued the inhabitants of the state, harmed the innocent and indiscriminately taken the lives of civilians and servicemen, the young and old, men, women and children. In order to realize the aforesaid purpose, the Law applies only to persons who take part in the cycle of hostilities or who belong to a force that carries out hostile acts against the State of Israel, and not to innocent civilians. We shall return to address the security purpose of the Law below.

Interpreting the provisions of the Law

7. As we have said, in their arguments before us the parties addressed in detail the question of the constitutionality of the arrangements prescribed in the Law. In addition, the parties addressed at length the question of whether the arrangements prescribed in the Internment of Unlawful Combatants Law are consistent with international law. The parties addressed this question, inter alia, because in s. 1 of the Law, which is the purpose section, the Law states that it is intended to realize its purpose "in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." As we shall explain below, this declaration is a clear expression of the basic outlook prevailing in our legal system that the existing law should be interpreted in a manner that is as consistent as possible with international law.

In view of the two main focuses of the basic arguments of the parties before us - whether the arrangements prescribed in the Law are constitutional and whether they are consistent with international humanitarian law - we should clarify that both the constitutional scrutiny from the viewpoint of the limitation clause and the question of compliance with international humanitarian law may be affected by the interpretation of the arrangements prescribed in the Law. Before deciding on the aforesaid questions, therefore, we should first consider the interpretation of the principal arrangements prescribed in the Internment of Unlawful Combatants Law. These arrangements will be interpreted in accordance with the language and purpose of the Law, and on the basis of two interpretive presumptions that exist in our legal system: one, the presumption of constitutionality, and the other, the presumption of interpretive compatibility with the norms of international law - both those that are part of Israeli law and those that Israel has taken upon itself amongst its undertakings in the international arena.

8.  Regarding the presumption of constitutionality: in our legal system the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently. According to this presumption, the examination of a provision of statute involves an attempt to interpret it so that it is consistent with the protection that the Basic Laws afford to human rights. This realizes the presumption of normative harmony, whereby "we do not assume that a conflict exists between legal norms, and every possible attempt is made to achieve 'uniformity in the law' and harmony between the various norms" (A. Barak, Legal Interpretation - the General Theory of Interpretation (1992), at p. 155). In keeping with the presumption of constitutionality, we must, therefore, examine the meaning and scope of the internment provisions in the Internment of Unlawful Combatants Law while aspiring to uphold, insofar as possible, the provisions of Basic Law: Human Dignity and Liberty. It should immediately be said that the internment powers prescribed in the Law significantly and seriously violate the personal liberty of the prisoner. This violation is justified in appropriate circumstances in order to protect state security. However, in view of the magnitude of the violation of personal liberty, and considering the exceptional nature of the means of detention that are prescribed in the Law, an interpretive effort should be made in order to minimize the violation of the right to liberty as much as possible so that it is proportionate to the need to achieve the security purpose and does not go beyond this. Such an interpretation will be compatible with the basic conception prevailing in our legal system, according to which a statute should be upheld by interpretive means and the court should refrain, insofar as possible, from setting it aside on constitutional grounds. In the words of President A. Barak:

'It is better to achieve a reduction in the scope of a statute by interpretive means rather than  having to achieve the same reduction by declaring a part of a statute void because it conflicts with the provisions of a Basic Law.... A reasonable interpretation of a statute is preferable to a decision on the question of its constitutionality' (HCJ 4562/92 Zandberg v. Broadcasting Authority [2], at p. 812; see also HCJ 9098/01 Ganis v. Ministry of Building and Housing [3], at p. 276).

9. With respect to the presumption of conformity to international humanitarian law: as we have said, s. 1 of the Law declares explicitly that its purpose is to regulate the internment of unlawful combatants "… in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [4], at paras. 18, 21; see also A. Cassese, International Law (second edition, 2005), at p. 420).

The international law that governs an international armed conflict is anchored mainly in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter: "the Hague Convention") and the regulations appended to it, whose provisions have the status of customary international law (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [5], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [6], at p. 827; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at p. 364; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "Fourth Geneva Convention"), whose customary provisions constitute a part of the law of the State of Israel and some of which have been considered in the past by this court (Ajuri v. IDF Commander in West Bank [7], at page 364; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [8]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [9], at para. 14); and the Protocol Additional to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: "First Protocol"), to which Israel is not a party, but whose customary provisions also constitute a part of the law of the State of Israel (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 20). In addition, where there is a lacuna in the laws of armed conflict set out above, it is possible to fill it by resorting to international human rights law (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 18; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at page 240; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 43 ILM 1009 (2004)).

It should be emphasized that no one in this case disputes that an explicit statutory provision enacted by the Knesset overrides the provisions of international law (see in this regard President A. Barak in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 17). However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law to which the State of Israel is committed (see HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [11], at p. 847; HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [12], at para. 37). According to this presumption, which as we have said is clearly expressed in the purpose clause of the Internment of Unlawful Combatants Law, the arrangements prescribed in the Law should be interpreted in a manner that is as consistent as possible with the international humanitarian law that governs the matter.

Further to the aforesaid it should be noted that when we approach the task of interpreting provisions of the statute in a manner consistent with the accepted norms of international law, we cannot ignore the fact that the provisions of international law that exist today have not been adapted to changing realities and to the phenomenon of terrorism that is changing the face and characteristics of armed conflicts and those who participate in them (see in this regard the remarks of President A. Barak in Ajuri v. IDF Commander in West Bank [7], at pp. 381-382). In view of this, we should do our best to interpret the existing laws in a manner that is consistent with the new realities and the principles of international humanitarian law.

10.  Bearing all the above in mind, let us now turn to the interpretation of the statutory definition of "unlawful combatant" and of the conditions required for proving the existence of cause for internment under the Law. The presumption of constitutionality and the provisions of international law to which the parties referred will be our interpretive tools and they will assist us in interpreting the provisions of the Law and in evaluating the nature and scope of the power of internment it prescribes.

The definition of "unlawful combatant" and the scope of its application

11. S. 2 of the Law defines "unlawful combatant" as follows:

'Definitions

2.  In this law -

"unlawful combatant" - a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply to him;

This statutory definition of "unlawful combatant" relates to those who take part in hostile acts against the State of Israel or who are members of a force that perpetrates such acts, and who are not prisoners of war under international humanitarian law. In this regard two points should be made: first, from the language of the aforesaid s. 2 it is clear that it is not essential for someone to take part in hostile acts against the State of Israel; his membership in a "force perpetrating hostile acts" - i.e., a terrorist organization - may include that person within the definition of "unlawful combatant". We will discuss the significance of these two alternatives in the definition of "unlawful combatant" below (para. 21 .).

Secondly, as noted above, the purpose clause in the Law refers explicitly to the provisions of international humanitarian law. The definition of "unlawful combatant" in the aforesaid s. 2 also refers to international humanitarian law when it provides that the Law applies to a person who does not enjoy prisoner of war status under the Third Geneva Convention. In general, the rules of international humanitarian law were not intended to apply to the relationship between the state and its citizens (see, for example, the provisions of art. 4 of the Fourth Geneva Convention, according to which a "protected civilian" is someone who is not a citizen of the state that is holding him in circumstances of an international armed conflict). The explicit reference by the legislature to international humanitarian law, together with the stipulation in the wording of the Law that prisoner of war status does not apply, show that the Law was intended to apply only to foreign parties who belong to a terrorist organization that acts against the security of the state. We are not unaware that the draft law of 14 June 2000 contained an express provision stating that the Law would not apply to Israeli inhabitants (and also to inhabitants of the territories), except in certain circumstances that were set out therein (see s. 11 of the Internment of Enemy Forces Personnel Who Are Not Entitled to a Prisoner of War Status Bill, 5760-2000, Bills 5760, no. 2883, at p. 415). This provision was omitted from the final wording of the Law. Nevertheless, in view of the explicit reference in the Law to international humanitarian law and the laws concerning prisoners of war as stated above, the inevitable conclusion is that according to its wording and purpose, the Law was not intended to apply to local parties (citizens and residents of Israel) who endanger state security. For these other legal measures exist that are intended for a security purpose, which we shall address below.

It is therefore possible to sum up and say that an "unlawful combatant" under s. 2 of the Law is a foreign party who belongs to a terrorist organization that acts against the security of the State of Israel. This definition may include residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organization that acts against the security of the State and who satisfy the other conditions of the statutory definition of "unlawful combatant". This definition may also include inhabitants of the Gaza Strip, which today is no longer under belligerent occupation. In this regard it should be noted that since the end of Israeli military rule in the Gaza Strip in September 2005, the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties of an occupying power under international law, including the main duty of maintaining public order and security. Any attempt to impose the authority of the State of Israel on the Gaza Strip is likely to involve complex and prolonged military operations. In such circumstances, where the State of Israel has no real ability to control what happens in the Gaza Strip in an effective manner, the Gaza Strip should not be regarded as a territory that is subject to belligerent occupation from the viewpoint of international law, even though the unique situation that prevails there imposes certain obligations on the State of Israel vis-?-vis the inhabitants of the Gaza Strip (for the position that the Gaza Strip is not now subject to a belligerent occupation, see Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel's Disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; see also the judgment of the International Court of Justice in Democratic Republic of the Congo v. Uganda, where the importance of a physical presence of military forces was emphasized for the existence of a state of occupation: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (ICJ, 19 December 2005), at para.173; with regard to the existence of certain obligations that the State of Israel has in the prevailing circumstances vis-?-vis the inhabitants of the Gaza Strip, see HCJ 9132/07 Elbassiouni v. Prime Minister [13]. In our case, in view of the fact that the Gaza Strip is no longer under the effective control of the State of Israel, we must conclude that the inhabitants of the Gaza Strip constitute foreign parties who may be subject to the Internment of Unlawful Combatants Law in view of the nature and purpose of this Law.

With regard to the inhabitants of the territory (Judaea and Samaria) that is under the effective control of the State of Israel, for the reasons that will be stated later (in para. 36 below), I tend to the opinion that insofar as necessary for security reasons, the administrative detention of these inhabitants should be carried out pursuant to the security legislation that applies in the territories and not by virtue of the Internment of Unlawful Combatants Law. However, the question of the application of the aforesaid Law to the inhabitants of the territories does not arise in the circumstances of the case before us and it may therefore be left undecided.

Conformity of the definition of "unlawful combatant" to a category recognized by international law

12. The appellants argued that the definition of "unlawful combatant" in s. 2 of the Law is contrary to the provisions of international humanitarian law, since international law does not recognize the existence of an independent and separate category of "unlawful combatants". According to their argument, there are only two categories in international law - "combatants" and "civilians", who are subject to the provisions and protections enshrined in the Third and Fourth Geneva Conventions respectively. In their view international law does not have an intermediate category that includes persons who are not protected by either of these conventions.

With regard to the appellants' aforesaid arguments we would point out that the question of the conformity of the term "unlawful combatant" to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel [4], in which it was held that the term "unlawful combatants" does not constitute a separate category, but rather, a sub-category of "civilians" recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of "civilians" includes everyone who is not a "combatant". We are therefore dealing with a negative definition. In the words of President A. Barak:

 'The approach of customary international law is that "civilians" are persons who are not "combatants" (see article 50(1) of the First Protocol, and Sabel, supra, at page 432). In the Blaskic case, the International Tribunal for War Crimes in Yugoslavia said that civilians are "persons who are not, or no longer, members of the armed forces" (Prosecutor v. Blaskic (2000), Case IT-95-14-T, at paragraph 180). This definition is of a "negative" character. It derives the concept of "civilians" from it being the opposite of "combatants". Thus it regards unlawful combatants, who as we have seen are not "combatants", as civilians' (ibid., at para. 26 of the opinion of President A. Barak).

In this context, two additional points should be made: first, the determination that "unlawful combatants" belong to the category of "civilians" in international law is consistent with the official interpretation of the Geneva Conventions, according to which in an armed conflict or a state of occupation, every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law - the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention:

'There is no "intermediate status"; nobody in enemy hands can be outside the law' (O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51).

(See also S. Borelli, 'Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the "War on Terror",' 87(857) IRRC 39 (2005), at pp. 48-49).

Secondly, it should be emphasized that prima facie, the statutory definition of "unlawful combatants" under s. 2 of the Law applies to a broader group of people than the group of "unlawful combatants" discussed in Public Committee against Torture in Israel v. Government of Israel [4], in view of the difference in the measures under discussion: the judgment in Public Committee against Torture in Israel v. Government of Israel [4] considered the legality of the measure of a military attack intended to cause the death of an "unlawful combatant". According to international law, it is permitted to attack an "unlawful combatant" only during the period of time when he is taking a direct part in the hostilities. By contrast, the Internment of Unlawful Combatants Law deals with the measure of internment. For the purposes of internment under the Law, it is not necessary for the "unlawful combatant" to participate directly in the hostilities, nor is it essential that the internment take place during the period of time that he is participating in hostile acts; all that is required is that the conditions of the definition of "unlawful combatant" in s. 2 of the Law are proved. This statutory definition does not conflict with the provisions of international humanitarian law since, as we shall clarify clear below, the Fourth Geneva Convention also permits the detention of a protected "civilian"' who endangers the security of the detaining state. Thus we see that our reference to the judgment in Public Committee against Torture in Israel v. Government of Israel [4] was not intended to indicate that an identical issue was considered in that case. Its purpose was to support the finding that the term "unlawful combatants" in the Law under discussion does not create a separate category of treatment from the viewpoint of international humanitarian law; rather, it constitutes a sub-group of the category of "civilians".

13.   Further to our finding that "unlawful combatants" belong to the category of "civilians" from the viewpoint of international law, it should be noted that this court has held in the past that international humanitarian law does not grant "unlawful combatants" the same degree of protection to which innocent civilians are entitled, and that in this respect there is a difference from the viewpoint of the rules of international law between "civilians" who are not "unlawful combatants" and "civilians" who are "unlawful combatants". (With regard to the difference in the scope of the protection from a military attack upon "civilians" who are not "unlawful combatants" as opposed to "civilians" who are "unlawful combatants", see Public Committee against Torture in Israel v. Government of Israel [4], at paras. 23-26). As we shall explain below, in the present context the significance of this is that someone who is an "unlawful combatant" is subject to the Fourth Geneva Convention, but according to the provisions of the aforesaid Convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.

In concluding these remarks it should be noted that although there are disagreements on principle between the parties before us as to the scope of the international laws that apply to "unlawful combatants", including the application of the Fourth Geneva Convention and the scope of the rights of which they may be deprived for security reasons under art. 5 of the Convention, we are not required to settle most of these disagreements. This is due to the state's declaration that in its opinion the Law complies with the most stringent requirements of the Fourth Geneva Convention, and because of the assumption that the appellants enjoy all the rights that are enshrined in this Convention (see paras. 334 and 382 of the state's response).

14.  In summary, in view of the purpose clause of the Internment of Unlawful Combatants Law, according to which the Law was intended to regulate the status of "unlawful combatants" in a manner that is consistent with the rules of international humanitarian law, and bearing in mind the finding of this court in Public Committee against Torture in Israel v. Government of Israel [4] that "unlawful combatants" constitute a subcategory of "civilians" under international law, we are able to determine that, contrary to the appellants' claim, the Law does not create a new reference group from the viewpoint of international law; it merely determines special provisions for the detention of "civilians" (according to the meaning of this term in international humanitarian law) who are "unlawful combatants".

The nature of internment of "Unlawful Combatants" under the Law - administrative detention

15. Now that we have determined that the definition of "unlawful combatant" in the Law is not incompatible with division into the categories  of "civilians" as opposed to "combatants"' in international law and in the case law of this court, let us proceed to examine the provisions of the Law that regulate the internment of unlawful combatants. S. 3(a) of the law provides the following:

 

'Internment of Unlawful Combatant

3. (a) Where the Chief of Staff has reasonable cause to believe that a person being held by state authorities is an unlawful combatant and that his release will harm state security, he may issue an order under his hand, directing that such person be interned at a place to be determined (hereinafter: "internment order"); an internment order shall include the grounds for internment, without prejudicing state security requirements.'

S. 7 of the Law adds a probative presumption in this context, which provides as follows:

'Presumption

 7.  For the purposes of this Law, a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.'

The appellants argued before us that the internment provisions in the Law create, de facto, a third category of detention, which is neither criminal arrest nor administrative detention, and which has no recognition in Israeli law or international law. We cannot accept this argument. The mechanism provided in the Law is a mechanism of administrative detention in every respect, which is carried out in accordance with an order of the Chief of Staff, who is an officer of the highest security authority. As we shall explain below, we are dealing with an administrative detention whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is participating in the organization's operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.

16.  It should be noted that the actual authority provided in the Law for the administrative detention of a "civilian" who is an "unlawful combatant" due to the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus art. 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting "control and security measures" that are justified on security grounds. The wording of the aforesaid art. 27 is as follows:

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

Regarding the types of control measures that are required for protecting state security, art. 41 of the Convention prohibits the adoption of control measures that are more severe than assigned residence or internment in accordance with the provisions of arts. 42-43 of the Convention. Art. 42 entrenches the rule that a "civilian" should not be interned unless this is "absolutely necessary" for the security of the detaining power. Art. 43 proceeds to obligate the detaining power to approve the detention by means of judicial or administrative review, and to hold periodic reviews of the continuing need for internment at least twice a year. Art. 78 of the Convention concerns the internment of protected civilians who are inhabitants of a territory that is held by an occupying power, and it states that it is possible to invoke various security measures against them for essential security reasons, including assigned residence and internment. Thus we see that the Fourth Geneva Convention allows the internment of protected "civilians" in administrative detention, when this is necessary for reasons concerning the essential security needs of the detaining power.

17.  In concluding these remarks we would point out that the appellants argued before us that the aforesaid provisions of the Fourth Geneva Convention are not applicable in their particular case. According to them, arts. 41-43 of the Convention concern the detention of protected civilians who are present in the territory of a party to a dispute, whereas the appellants were taken into detention when they were in the Gaza Strip in the period prior to the implementation of the disengagement plan, when the status of the Gaza Strip was that of territory under belligerent occupation.  They argue that art. 78 of the Fourth Geneva Convention - relating to administrative detention in occupied territory - is not applicable to their case either, in view of the circumstances that arose after the implementation of the disengagement plan and the departure of IDF forces from the Gaza Strip. In view of this, the appellants argued that no provision of international humanitarian law exists that allows them to be placed in administrative detention, and therefore they argued that their detention under the Internment of Unlawful Combatants Law is contrary to the provisions of international law.

Our reply to these arguments is that the detention provisions set out in the Fourth Geneva Convention were intended to apply and realize the basic principle contained in the last part of art. 27 of the Convention, which was cited above. As we have said, this article provides that the parties to a dispute may adopt security measures against protected civilians insofar as this is required due to the belligerence. The principle underlying all the detention provisions in the Fourth Geneva Convention is that "civilians" may be detained for security reasons to the extent necessitated by the threat that they represent. According to the aforesaid Convention, the power of detention for security reasons exists, whether we are concerned with the inhabitants of an occupied territory or with foreigners who were apprehended in the territory of one of the states involved in the dispute. In the appellants' case, although Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ceased; therefore, detention of the appellants within the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.

The cause of detention under the Law - the requirement of an individual threat to security and the effect of the interpretation of the statutory definition of "unlawful combatant"

18.  One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee to the security of the state. This was discussed by President Barak when he said:

'[For cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] - to him personally and not to someone else - concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism' (Marab v. IDF Commander in Judaea and Samaria [8], at p. 367).

The requirement of an individual threat for the purpose of placing a person in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty. This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish a person for acts that have already been committed or to deter others from committing them; its purpose is to prevent the tangible risk presented by the acts of the prisoner to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank [7], at pp. 370-372, and the references cited there).

19.  It will be noted that a personal threat to state security posed by the detainee is also a requirement under the principles of international humanitarian law. Thus, for example, in his interpretation of arts. 42 and 78 of the Fourth Geneva Convention, Pictet emphasizes that the state should resort to the measure of detention only when it has serious and legitimate reasons to believe that the person concerned endangers its security. In his interpretation Pictet discusses membership in organizations whose goal is to harm the security of the state as a ground for deeming a person to be a threat, but he emphasizes the meta-principle that the threat is determined in accordance with the individual activity of that person. In Pictet's words:

'To justify recourse to such measures, the state must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security' (J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at pp. 258-259).

20. No one here disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principles, whereby administrative detention is conditional upon proving the existence of cause that establishes an individual threat. Indeed, an examination of the provisions of the Law in accordance with the aforesaid principles reveals that the Law does not allow a person to be detained arbitrarily, and that the authority to detain by virtue of the Law is conditional upon the existence of a cause of detention that is based on the individual threat represented by the prisoner: first, the definition of "unlawful combatant" in s. 2 of the Law requires that it be proven that the prisoner himself took part in or belonged to a force that is carrying out hostilities against the State of Israel, the significance of which we shall address below. Secondly, s. 3(a) of the Law expressly provides that the cause of detention under the Law arises only with regard to someone for whom there is reasonable basis to believe that "his release will harm state security." S. 5(c) of the Law goes on to provide that the District Court will set aside a detention order that was issued pursuant to the Law only when the release of the prisoner "will not harm state security" (or when there are special reasons that justify the release). To this we should add that according to the purpose of the Law, administrative detention is intended to prevent the "unlawful combatant" from returning to the cycle of hostilities, indicating that he was originally a part of that cycle.

The dispute between the parties before us in this context concerns the level of the individual threat that the state must prove for the purpose of administrative detention under the Law. This dispute arises due to the combination of two main provisions of the Law: one is the provision in s. 2 of the Law, a simple reading of which states that an "unlawful combatant" is not only someone who takes a direct or indirect part in hostile acts against the State of Israel, but also a person who is a "member of a force perpetrating hostile acts." The other is the probative presumption in s. 7 of the Law, whereby a person who is a member of a force that perpetrates hostile acts against the State of Israel shall be regarded as someone whose release will harm the security of the state unless the contrary is proved. On the basis of a combination of these two provisions of the Law, the state argued that it is sufficient to prove that a person is a member of a terrorist organization in order to prove his individual danger to the security of the state in such a manner that provides cause for detention under the Law. By contrast, the appellants' approach was that relying upon abstract "membership" in an organization that perpetrates hostile acts against the State of Israel as a basis for administrative detention under the Law renders meaningless the requirement of proving an individual threat, contrary to constitutional principles and international humanitarian law.

21. Resolution of the aforesaid dispute is largely affected by the interpretation of the definition of "unlawful combatant" in s. 2 of the Law. As we have said, the statutory definition of "unlawful combatant" contains two alternatives: the first, "a person who has participated either directly or indirectly in hostile acts against the State of Israel", and the second, a person who is "a member of a force perpetrating hostile acts against the State of Israel," when the person concerned does not satisfy the conditions granting prisoner of war status under international humanitarian law. These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law that we discussed above, which require proof of an individual threat as grounds for administrative detention.

With respect to the interpretation of the first alternative concerning "a person who has participated either directly or indirectly in hostile acts against the State of Israel " - according to the legislative purpose and the principles that we have discussed, the obvious conclusion is that in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that a person is an "unlawful combatant", the state must prove that he contributed to the perpetration of hostile acts against the state, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness. Naturally it is not possible to define such a contribution precisely and exhaustively, and the matter must be examined according to the circumstances of each case on its merits.

With respect to the second alternative  - a person who is "a member of a force carrying out hostilities against the State of Israel" - here too an interpretation that is consistent with the purpose of the Law and the constitutional principles and international humanitarian law discussed above is required: on the one hand it is insufficient to simply show some kind of tenuous connection with a terrorist organization in order to include the person within the cycle of hostilities in the broad meaning of this concept. On the other hand, in order to establish cause for the internment of a person who is a member of an active terrorist organization whose self-declared goal is to fight incessantly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the Law.

Thus we see that for the purpose of internment under the Law, the state must furnish administrative proof that the prisoner is an "unlawful combatant" with the meaning that we discussed, i.e. that the prisoner took a direct or indirect part that involved a contribution to the fighting  - a part that was neither negligible nor marginal in hostile acts against the State of Israel - or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept.

It should be noted that proving the conditions of the definition of an "unlawful combatant" in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization. It should also be noted that only after the state has proved that the prisoner fulfils the conditions of the statutory definition of "unlawful combatant" can it have recourse to the probative presumption set out in s. 7 of the Law, according to which the release of the prisoner will harm state security as long as the contrary has not been proved. It is therefore clear that s. 7 of the Law does not negate the obligation of the state to prove the threat represented by the prisoner, which derives from the type of involvement in the relevant organization, as required in order to prove him to be an "unlawful combatant" under s. 2 of the Law. In view of this, the inevitable conclusion is that the argument that the Law does not include a requirement of an individual threat goes too far and should be rejected.

Proving someone to be an "unlawful combatant" under the Law - the need for clear and convincing administrative evidence

22.  Above, we discussed the interpretation of the definition of "unlawful combatant". According to the aforesaid interpretation, the state is required to prove that the prisoner took a substantial, direct or indirect part in hostile acts against the State of Israel, or that he belonged to an organization that perpetrates hostile acts:  all this, taking into consideration his connection and the extent of his contribution to the organization's cycle of hostilities. In these circumstances internment of a person may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of the State of Israel. The question that arises here is this: what evidence is required in order to convince the court that the prisoner satisfies the conditions of the definition of an "unlawful combatant" with the aforesaid meaning?

This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a cause for administrative detention (see Ajuri v. IDF Commander in West Bank [7], at p. 372, where this was the ruling with regard to the measure of assigned residence; also cf. per Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [14], at p. 264; HCJ 554/81 Beransa v. Central Commander [15]). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. Bearing in mind the importance of the right to personal liberty and in view of the security purpose of the said Law, the provisions of ss. 2 and 3 of the Law should be interpreted as obligating the state to prove, with clear and convincing administrative evidence, that even if the prisoner did not take a substantial, direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, such that his administrative detention is justified in order to prevent his return to the aforesaid cycle of hostilities.

The significance of the requirement that there be clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current; this is necessary both to prove that the prisoner is an "unlawful combatant" under s. 2 of the Law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return below. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state; naturally we can learn of these threats from tangible evidence concerning the prisoner's acts in the past (see per President M. Shamgar in Beransa v. Central Commander [15], at pp. 249-250; HCJ 11026/05 A v. IDF Commander [16], at para. 5). Nevertheless, for the purposes of long-term internment under the Internment of Unlawful Combatants Law, satisfactory administrative evidence is required, and a single piece of evidence about an isolated act carried out in the distant past is insufficient.

23. It follows that for the purposes of internment under the Internment of Unlawful Combatants Law, the state is required to provide clear and convincing evidence that even if the prisoner did not take a substantial direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and contributed to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, for to prove that someone is a member of a terrorist organization is not like proving that someone is a member of a regular army, due to the manner in which terrorist organizations work and how people join their ranks. In Public Committee against Torture in Israel v. Government of Israel [4], the court held that unlike lawful combatants, unlawful combatants do not as a rule bear any clear and unambiguous signs that they belong to a terrorist organization (see ibid. [4], at para. 24). Therefore, the task of proving that a person belongs to an organization as aforesaid is not always an easy one. Nevertheless, the state is required to furnish sufficient administrative evidence to prove the nature of the prisoner's connection to the terrorist organization, and the degree or nature of his contribution to the broad cycle of combat or hostile acts carried out by the organization.

It should also be noted that in its pleadings before us, the state contended that the power of internment prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a situation of ongoing belligerence in territory that is not subject to the full control of the State of Israel, where in the course of the hostilities a relatively large number of unlawful combatants may fall into the hands of the security forces and it is necessary to prevent them returning to the cycle of hostilities against Israel. The special circumstances that exist in situations of this kind require a different course of action from that which is possible within the territory of the state or in an area subject to belligerent occupation. In any case, it must be assumed that the said reality may pose additional difficulties in assembling evidence as to whether those persons detained by the state on the battle-field belong to a terrorist organization and how great a threat they represent.

The probative presumptions in ss. 7 and 8 of the Law

24. As we have said, s. 7 of the Law establishes a presumption whereby a person who satisfies the conditions of the definition of "unlawful combatant" shall be regarded as someone whose release will harm the security of the state as long as the hostile acts against the State of Israel have not ceased. This is a rebuttable presumption, and the burden of rebutting it rests on the prisoner. We will emphasize what we said above, that the presumption in the said s. 7 is likely to be relevant only after the state has proved that the prisoner satisfies the conditions of the definition of "unlawful combatant". In such circumstances it is presumed that the release of the prisoner will harm state security as required by s. 3(a) of the Law.

As noted above, one of the appellants' main claims in this court was that the aforesaid presumption obviates the need to prove an individual threat from the prisoner, and that this is inconsistent with constitutional principles and international humanitarian law. The respondent countered this argument but went on to declare before us that as a rule, the state strives to present a broad and detailed evidentiary basis with regard to the threat presented by prisoners, and it has done so to date in relation to all prisoners under the Law, including in the appellants' case. The meaning of this assertion is that in practice, the state refrains from relying on the probative presumption in s. 7 of the Law and it proves the individual threat presented by prisoners on an individual basis, without resorting to the said presumption. It should be noted that this practice of the state is consistent with our finding that proving fulfillment of the conditions of the definition of "unlawful combatant" in s. 2 of the Law involves proving the individual threat that arises from the type of involvement in an organization as explained above.

In any case, since the state has refrained until now from invoking the presumption in s. 7 of the Law, the questions of the extent to which the said presumption reduces the requirement of proving the individual threat for the purpose of internment under the Law, and whether this is an excessive violation of the constitutional right to liberty and of the principles of international humanitarian law, do not arise. We can therefore leave these questions undecided, for as long as the state produces prima facie evidence of the individual threat presented by the prisoner and does not rely on the presumption under discussion, the question of the effect of the presumption on proving an individual threat remains theoretical. It will be noted that should the state choose to invoke the presumption in s. 7 of the Law in the future rather than proving the threat to the required degree, it will be possible to bring the aforesaid questions before the court, since it will be necessary to resolve them concretely rather than theoretically (see CrimA 3660/03 Abeid v. State of Israel [17]; HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [18]; HCJ 6055/95 Tzemach v. Minister of Defence [19], at p. 250 {641}; HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior [20], at para. 10; CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [21]).

25. Regarding the probative presumption in s. 8 of the Law, this section states as follows:

'Determination regarding hostile acts

8. A determination of the Minister of Defence, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that hostile acts of such force against the State of Israel have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.

The appellants argued before us that the said probative presumption transfers the burden of proof to the prisoner in respect of a matter which he will never be able to refute, since it is subject to the discretion of the Minister of Defence. The state countered that in all the proceedings pursuant to the Law it has refrained from relying solely on the determination of the Minister of Defence, and it has presented the court and counsel for the prisoners with an updated and detailed opinion concerning the relevant organization to which the prisoner belongs. This was done in the case of the appellants too, who allegedly belong to the Hezbollah organization. In view of this, we are not required to decide on the fundamental questions raised by the appellants regarding the said s. 8.  In any case, it should be stated that in the situation prevailing in our region, in which the organizations that operate against the security of the State of Israel are well known to the military and security services, it should not be assumed that it is difficult to prove the existence and nature of the activity of hostile forces by means of a specific and updated opinion, in order to provide support for the determination of the Minister of Defence, as stated in s. 8 of the Law.

The Constitutional Examination

26.  Up to this point we have dealt with the interpretation of the statutory definition of "unlawful combatant" and the conditions required for proving the existence of a cause for internment under the Law. This interpretation takes into account the language and purpose of the Internment of Unlawful Combatants Law, and it is compatible with the presumption of constitutionality and with the principles of international humanitarian law to which the purpose clause of the Law expressly refers.

Now that we have considered the scope of the Law's application and the nature of the power of internment by virtue thereof, we will proceed to the arguments of the parties concerning the constitutionality of the arrangements prescribed in its framework. These arguments were raised in the District Court and in this court in the course of the hearing on the appellants' internment, in the framework of an indirect attack on the said Law.

Violation of the constitutional right to personal liberty

27.  S. 5 of Basic Law: Human Dignity and Liberty provides as follows:

'Personal liberty

5.  There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

There is no dispute between the parties before us that the Internment of Unlawful Combatants Law violates the constitutional right to personal liberty entrenched in the aforesaid s. 5. This is a significant and serious violation, in that the Law allows the use of the extreme measure of administrative detention, which involves depriving a person of his personal liberty. It should be clarified that the Internment of Unlawful Combatants Law was admittedly intended to apply to a foreign entity belonging to a terrorist organization that operates against the state security (see para. 11 above). In Israel, however, the internment of unlawful combatants is carried out by the government authorities, who are bound in every case to respect the rights anchored in the Basic Law (see ss. 1 and 11 of the Basic Law). Accordingly, the violation inherent in the arrangements of the Internment of Unlawful Combatants Law should be examined in keeping with the criteria in the Basic Law.

Examining the violation of the constitutional right from the perspective of the limitation clause

28.  No one disputes that the right to personal liberty is a constitutional right with a central role in our legal system, lying at the heart of the values of the State of Israel as a Jewish and democratic state (see Marab v. IDF Commander in Judaea and Samaria [8], at para. 20). It has been held in our case law that "personal liberty is a constitutional right of the first degree, and from a practical viewpoint it is also a condition for realizing other basic rights" (Tzemach v. Minister of Defence [16], at p. 251; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [22], at p. 81 {513}; CrimA 4596/05 Rosenstein v. State of Israel [23], at para. 53; CrimA 4424/98 Silgado v. State of Israel [24], at pp. 539-540). Nevertheless, like all protected human rights the right to personal liberty is not absolute, and a violation of the right is sometimes necessary in order to protect essential public interests. The balancing formula in this context appears in the limitation clause in s. 8 of the Basic Law, which states:

'Violation of Rights

8. There shall be no violation of rights under this Basic Law except 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, or according to a law as stated by virtue of explicit authorization therein. '

The question confronting us is whether the violation of the right to personal liberty engendered by the Internment of Unlawful Combatants Law complies with the conditions of the limitation clause. The arguments of the parties before us focused on the requirements of proper purpose and proportionality, and these will be the focus of our deliberations as well.

29. At the outset, and before we examine the provisions of the Law from the perspective of the limitation clause, we should mention that the court will not hasten to intervene and set aside a statutory provision enacted by the legislature. The court is bound to uphold the law as a manifestation of the will of the people (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [25], at pp. 552-553; HCJ 4769/95 Menahem v. Minister of Transport [26], at pp. 263-264; HCJ 3434/96 Hoffnung v. Knesset Speaker [27], at pp. 66-67). Thus the principle of the separation of powers finds expression: the legislative authority determines the measures that should be adopted in order to achieve public goals, whereas the judiciary examines whether these measures violate basic rights in contravention of the conditions set for this purpose in the Basic Law. It is the legislature that determines national policy and formulates it in statute, whereas the court scrutinizes the constitutionality of the legislation to reveal the extent to which it violates constitutional human rights (see per President A. Barak in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 78). It has therefore been held in the case law of this court that when examining the legislation of the Knesset from the perspective of the limitation clause, the court will act "with judicial restraint, caution and moderation" (Menahem v. Minister of Transport [26], at p. 263). The court will not refrain from constitutional scrutiny of legislation, but it will act with caution and exercise its constitutional scrutiny in order to protect human rights within the constraints of the limitation clause, while refraining from reformulating the policy that the legislature saw fit to adopt. Thus the delicate balance between majority rule and the principle of the separation of powers on the one hand, and the protection of the basic values of the legal system and human rights on the other, will be preserved.

The requirement of a proper purpose

30. According to the limitation clause, a statute that violates a constitutional right must have a proper purpose. It has been held in our case law that a legislative purpose is proper if it is designed to protect human rights, including by determining a reasonable and fair balance between the rights of individuals with conflicting interests, or if it serves an essential public purpose, an urgent social need or an important social concern whose purpose is to provide an infrastructure for coexistence and a social framework that seeks to protect and promote human rights (see ibid. [26], at p. 264; HCJ 6893/05 Levy v. Government of Israel [28], at pp. 889-890; HCJ 5016/96 Horev v. Minister of Transport [29], at pp. 52-53, {206}). It has also been held that not every purpose justifies a violation of constitutional basic rights, and that the essence of the violated right and the magnitude of the violation are likely to have ramifications for the purpose that is required to justify the violation.

In our remarks above we explained that the Internment of Unlawful Combatants Law, according to its wording and its legislative history, was intended to prevent persons who threaten the security of the state due to their activity or their membership in terrorist organizations that carry out hostile acts against the State of Israel from returning to the cycle of hostilities (see para. 6 above). This legislative purpose is a proper one. Protecting state security is an urgent and even essential public need in the harsh reality of unremitting, murderous terrorism that harms innocent people indiscriminately. It is difficult to exaggerate the security importance of preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel in a period of relentless terrorist activity that threatens the lives of the citizens and residents of the State of Israel. In view of this, the purpose of the Law under discussion may well justify a significant and even serious violation of human rights, including the right to personal liberty. Thus was discussed by President A. Barak when he said that -

'There is no alternative - in a freedom and security seeking democracy - to striking a balance between liberty and dignity on the one hand and security on the other. Human rights should not become a tool for depriving the public and the state of security. A balance - a delicate and difficult balance - is required between the liberty and dignity of the individual and state and public security' (A v. Minister of Defence [1], at p.741).

 (See also Ajuri v. IDF Commander in West Bank [7], at p. 383; per Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [30],  at pp. 76-77, {para.6 at pp. 197-198}; EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [31], at p. 310 {160}).

The purpose of the Internment of Unlawful Combatants Law is therefore a proper one. But this is not enough. Within the framework of constitutional scrutiny, we are required to proceed to examine whether the violation of the right to personal liberty does not exceed what is necessary for realizing the purpose of the Law. We shall now examine this question.

The requirement that the measure violating a human right is not excessive

31. The main issue that arises with respect to the constitutionality of the Law concerns the proportionality of the arrangements it prescribes. As a rule, it is customary to identify three subtests that constitute fundamental criteria for determining the proportionality of a statutory act that violates a constitutional human right: the first is the rational connection test, whereby the legislative measure violating the constitutional right and the purpose that the Law is intended to realize must be compatible; the second is the least harmful measure test, which requires that the legislation violate the constitutional right to the smallest degree possible in order to achieve the purpose of the Law; and the third is the test of proportionality in the narrow sense, according to which the violation of the constitutional right must be commensurate with the social benefit it bestows (see Menahem v. Minister of Transport [26], at p. 279; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at paras. 65-75; Beit Sourik Village Council v. Government of Israel [6], at pp. 839-840).

It has been held in the case law of this court that the test of proportionality, with its three subtests, is not a precise test since by its very nature it involves assessment and evaluation. The subtests sometimes overlap and each of them allows the legislature a margin of discretion. There may be circumstances in which the choice of an alternative measure that violates the constitutional right slightly less results in a significant reduction in the realization of the purpose or the benefit derived from it; it would not be right therefore to obligate the legislature to adopt the aforesaid measure. Consequently this court has accorded recognition to "constitutional room for maneuver" which is also called the "zone of proportionality". The bounds of the constitutional room for maneuver are determined by the court in each case on its merits and according to its circumstances, bearing in mind the nature of the right that is being violated and the extent of the violation as opposed to the nature and substance of the competing rights or interests. This court will not substitute its own discretion for the criteria chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls within the zone of proportionality. The court will only intervene when the chosen measure significantly departs from the bounds of the constitutional room for maneuver and is clearly disproportionate (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [32], at p. 438; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [33]; AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [34], at p. 815; Gaza Coast Regional Council v. Knesset [25], at pp. 550-551).

In the circumstances of the case before us, the violation of the constitutional right to personal liberty is significant and even severe in its extent. Nevertheless, as we said above, the legislative purpose of removing "unlawful combatants" from the cycle of hostilities in order to protect state security is essential in view of the reality of murderous terrorism that threatens the lives of the residents and citizens of the State of Israel. In these circumstances, I think that the existence of relatively wide room for legislative maneuver should be recognized, to allow the selection of the suitable measure for realizing the purpose of the Law.

The First Subtest: A Rational Connection Between the Measure and the Purpose

32.  The measure chosen by the legislature in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention. As we explained in para. 21 above, for the purpose of internment under the Law the state must provide clear and convincing proof that the prisoner is an "unlawful combatant" within the meaning that we discussed. The state is therefore required to prove the personal threat presented by the prisoner, deriving from his particular form of involvement in the organization. Administrative detention constitutes a suitable means of averting the security threat presented by the prisoner, in that it prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel and thereby serves the purpose of the Law. Therefore the first subtest of proportionality - the rational connection test - is satisfied.

The main question concerning the proportionality of the Law under discussion concerns the second subtest, i.e. the question of whether there exist alternative measures that involve a lesser violation of the constitutional right. In examining this question, we should first consider the appellants' argument that there are more proportionate measures for realizing the purpose of the Internment of Unlawful Combatants Law. Next we should consider the specific arrangements prescribed in the Law and examine whether they exceed the zone of proportionality. Finally we should examine the Law in its entirety and examine whether the combination of arrangements that were prescribed in the Law fulfils the test of proportionality in the narrow sense, i.e. whether the violation of the right to personal liberty is reasonably commensurate with the public benefit that arises from it in realizing the legislative purpose.

The argument that there are alternative measures to detention under the Law

33.  The appellants' main argument concerning proportionality was that alternative measures to administrative detention exist by virtue of the Law, involving a lesser violation of the right to liberty. In this context, the appellants raised two main arguments: first, it was argued that for the purpose of realizing the legislative purpose it is not necessary to employ the measure of administrative detention, and the appellants ought to be recognized as prisoners of war; alternatively, recourse should be had to the measure of trying the appellants on criminal charges. Secondly, it was argued that even if administrative detention is necessary in the appellants' case, this should be carried out under the Emergency Powers (Detentions) Law, 5739-1979, for according to their argument, the violation that it involves is more proportionate than that of the Internment of Unlawful Combatants Law.

The first argument - that the appellants should be declared prisoners of war - must be rejected. In HCJ 2967/00 Arad v. Knesset [35], which considered the case of Lebanese prisoners, a similar argument to the one raised in the present appellants' case was rejected:

'We agree with the position of Mr Nitzan that the Lebanese prisoners should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 4(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to comply with the definition of "prisoners of war" is "that of conducting their operations in accordance with the laws and customs of war." The organizations to which the Lebanese prisoners belonged are terrorist organizations, which operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from the midst of the civilian population, which they use as a shield. All of these are operations that are contrary to international law. Indeed, Israel's consistent position over the years was not to regard the various organizations such as Hezbollah as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position' (ibid. [35], at p. 191).

 (See also CrimApp 8780/06 Sarur v. State of Israel [36]; HCJ 403/81 Jabar v. Military Commander [37]; and also HCJ 102/82 Tzemel v. Minister of Defence [38], at pp. 370-371).

Similar to what was said in Arad v. Knesset [35], in the circumstances of the case before us, too, the appellants should not be accorded prisoner of war status, since they do not satisfy the conditions of art. 4 of the Third Geneva Convention, and primarily, the condition concerning the observance of the laws of war.

The appellants' argument that a more proportionate measure would be to try the prisoners on criminal charges should also be rejected, in view of the fact that trying a person on criminal charges is different in essence and purpose from the measure of administrative detention. Putting a person on trial is intended to punish him for acts committed in the past, and it is dependent upon the existence of evidence that can be brought before a court in order to prove guilt beyond a reasonable doubt. Administrative detention, on the other hand, was not intended to punish but to prevent activity that is prohibited by law and endangers the security of the state. The quality of evidence that is required for administrative detention is different from that required for a criminal trial. Moreover, as a rule recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are impossible, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when a criminal trial does not provide a satisfactory solution to averting the threat posed to the security of the state in circumstances in which, after serving his sentence, the person is likely to revert to being a security risk (see, inter alia, ADA 4794/05 Ufan v. Minister of Defence [39]; ADA 7/94 Ben-Yosef v. State of Israel [40]; ADA 8788/03 Federman v. Minister of Defence [41], at pp. 185-189; Fahima v. State of Israel [14], at pp. 263-264). In view of all the above, it cannot be said that a criminal trial constitutes an alternative measure for realizing the purpose of the Internment of Unlawful Combatants Law.

34.  As we have said, the appellants' alternative claim before us was that even if it is necessary to place them in administrative detention, this should be done pursuant to the Emergency Powers (Detentions) Law. According to this argument, the Emergency Powers (Detentions) Law violates the right to personal liberty to a lesser degree than the provisions of the Internment of Unlawful Combatants Law. Thus, for example, it is argued that the Emergency Powers (Detentions) Law requires an individual threat as a cause for detention, without introducing presumptions that transfer the burden of proof to the prisoner, as provided in the Internment of Unlawful Combatants Law. Moreover, the Emergency Powers (Detentions) Law requires a judicial review to be conducted within forty-eight hours of the time of detention, and a periodic review every three months, whereas the Internment of Unlawful Combatants Law allows a prisoner to be brought before a judge as much as fourteen days after the time he is detained, and it requires a periodic review only once every half year; under the Emergency Powers (Detentions) Law,  the power of detention is conditional upon the existence of a state of emergency in the State of Israel, whereas internment under the Internment of Unlawful Combatants Law does not set such a condition and it is even unlimited in time, apart from the stipulation that the internment will end by the time that the hostilities against the State of Israel have ceased. To this it should be added that detention under the Emergency Powers (Detentions) Law is effected by an order of the Minister of Defence, whereas internment under the Internment of Unlawful Combatants is effected by an order of the Chief of Staff, who is authorised to delegate his authority to an officer with the rank of major-general. Taking into consideration all the above, the appellants' argument before us is that detention under the Emergency Powers (Detentions) Law constitutes a more proportionate alternative than administrative detention under the Internment of Unlawful Combatants Law.

35.  Prima facie the appellants are correct in their argument that in certain respects the arrangements prescribed in the Emergency Powers (Detentions) Law violate the right to personal liberty to a lesser degree than the Internment of Unlawful Combatants Law. However, we accept the state's argument in this context that the Internment of Unlawful Combatants Law is intended for a different purpose than that of the Emergency Powers (Detentions) Law. In view of the different purposes, the two laws contain different arrangements, such that the Emergency Powers (Detentions) Law does not constitute an alternative measure for achieving the purpose of the Law under discussion in this case. Let us clarify our position.

The Emergency Powers (Detentions) Law applies in a time of emergency and in general, its purpose is to prevent threats to state security arising from internal entities (i.e., citizens and residents of the state). Accordingly, the Law prescribes the power of administrative detention that is usually invoked with regard to isolated individuals who threaten state security and whose detention is intended to last for relatively short periods of time, apart from exceptional cases. On the other hand, as we clarified in para. 11 above, the Internment of Unlawful Combatants Law is intended to apply to foreign entities who operate within the framework of terrorist organizations against the security of the state. The Law was intended to apply at a time of organized and persistent hostile acts against Israel on the part of terrorist organizations. The purpose of the Law is to prevent persons who belong to these organizations or who take part in hostile acts under their banner from returning to the cycle of hostilities, as long as the hostilities against the State of Israel continue. In order to achieve the aforesaid purpose, the Internment of Unlawful Combatants Law contains arrangements that are different from those in the Emergency Powers (Detentions) Law (we will discuss the question of the proportionality of these arrangements below). Moreover, according to the state, the power of detention prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a persistent state of war in a territory that is not a part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting. The argument is that these special circumstances justify recourse to measures that are different from those usually employed.

Thus we see that even though the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law prescribe a power of administrative detention whose purpose is to prevent a threat to state security, the specific purposes of the aforesaid laws are different and therefore the one cannot constitute an alternative measure for achieving the purpose of the other. In the words of the trial court: "We are dealing with a horizontal plane on which there are two acts of legislation, one next to the other. Each of the two was intended for a different purpose and therefore, in circumstances such as our case, they are not alternatives to one another" (p. 53 of the decision of the District Court of 19 July 2006). It should be clarified that in appropriate circumstances, the Emergency Powers (Detentions) Law could well be used to detain foreigners who are not residents or citizens of the State of Israel. Despite this, the premise is that the specific purposes of the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law are different, and therefore it cannot be determined in a sweeping manner that detention under the Emergency Powers (Detentions) Law constitutes a more appropriate and proportionate alternative to detention under the Internment of Unlawful Combatants Law.

36.  In concluding these remarks it will be mentioned that the appellants, who are inhabitants of the Gaza Strip, were first detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out under the security legislation that was in force in the Gaza Strip. A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation (see para. 11 above). One of the ancillary consequences of the end of the Israeli military rule in the Gaza Strip was the repeal of the security legislation that was in force there. Consequently, the Chief of Staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law.

In view of the nullification of the security legislation in the Gaza Strip, no question arises in relation to inhabitants of that region as to whether administrative detention by virtue of security legislation may constitute a suitable and more proportionate measure than internment under the Internment of Unlawful Combatants Law. Nonetheless, I think it noteworthy that the aforesaid question may arise with regard to inhabitants of the territories that are under the belligerent occupation of the State of Israel (Judaea and Samaria). As emerges from the abovesaid in para. 11, prima facie I tend to the opinion that both under the international humanitarian law that governs the matter (art. 78 of the Fourth Geneva Convention) and according to the test of proportionality, administrative detention of inhabitants of Judaea and Samaria should be carried out by virtue of the current security legislation that is in force in the territories, and not by virtue of the Internment of Unlawful Combatants Law in Israel. This issue does not, however, arise in the circumstances of the case before us and therefore I think it right to leave it for future consideration.

Proportionality of the specific arrangements prescribed in the Law

37.  In view of all of the reasons elucidated above, we have reached the conclusion that the measures identified by the appellants in their pleadings cannot constitute alternative measures to administrative detention by virtue of the Law under discussion. The appellants further argued that the specific arrangements prescribed in the Internment of Unlawful Combatants Law violate the right to personal liberty excessively, and more proportionate arrangements that violate personal liberty to a lesser degree could have been set. Let us therefore proceed to examine this argument with regard to the specific arrangements prescribed in the Law.

(1)        Conferring the power of detention on military personnel

38.       S. 3(a) of the Law, cited in para. 15 above, provides that an internment order by virtue of the Law will be issued by the Chief of Staff "under his hand" and will include the grounds for the internment "without prejudicing state security requirement." S. 11 of the Law goes on to provide that "the Chief of Staff may delegate his powers under this Law to any officer of the rank of major-general that he may determine." According to the appellants, conferring the power of detention by virtue of the Law on the Chief of Staff, who may delegate it to an officer of the rank of major-general, is an excessive violation of the prisoners' right to personal liberty. In this context, the appellants emphasized that the Emergency Powers (Detentions) Law confers the power of administrative detention on the Minister of Defence only.

In the circumstances of the case, we have come to the conclusion that the state is correct in its argument that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general falls within the zone of proportionality and we should not intervene. First, as we said above, the specific purposes of the Internment of Unlawful Combatants Law and the Emergency Powers (Detentions) Law are different, and there is therefore a difference in the arrangements prescribed in the two Laws. Since the Law under consideration before us was intended to apply, inter alia, in a situation of combat and prolonged military activity against terrorist organizations in a territory that is not subject to the total control of the State of Israel, there is logic in establishing an arrangement that confers the power of internment on military personnel of the highest rank. Secondly, it should be made clear that the provisions of international law do not preclude the power of detention of the military authority responsible for the security of a territory in which there are protected civilians. This may support the conclusion that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general does not, in itself, violate the right to personal liberty disproportionately.

(2)        The prisoner's right to a hearing after an internment order is issued

39.  Ss. 3(b) and 3(c) of the Law provide as follows:

Internment of unlawful combatant

3.   (a) ...

(b) An internment order may be granted in the absence of the person held by the state authorities.

 (c) An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff; the submissions of the prisoner shall be recorded by the officer and shall be brought before the Chief of General Staff; if the Chief of General Staff finds, after reviewing the submissions of the prisoner, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the internment order.

According to s. 3(b) above, an internment order may be granted by the Chief of Staff (or a major-general appointed by him) without the prisoner being present. S. 3(c) of the Law goes on to provide that the order shall be brought to the attention of the prisoner "at the earliest possible date" and that he shall be given a hearing before an army officer of at least the rank of lieutenant-colonel, in order to allow him to put his submissions; the prisoner's submissions shall be recorded by the officer and brought before the Chief of Staff (or the major-general acting for him). According to the Law, if after reviewing the prisoner's arguments the Chief of Staff (or the major-general) is persuaded that the conditions for detention under the Law are not fulfilled, the internment order shall be quashed.

The appellants' argument in this context was that this arrangement violates the right to personal liberty excessively in view of the fact that the prisoner may put his submissions only after the event, i.e., after the internment order has been issued, and only before an officer of the rank of lieutenant-colonel, who will pass the submissions on to the Chief of Staff (or a major-general), in order that they reconsider their position. According to the appellants, it is the person who issues the order - the Chief of Staff or the major-general - who should hear the prisoner's arguments, even before the order is issued. These arguments should be rejected, for several reasons: first, it is established case law that the person who makes the decision does not need to conduct the hearing personally, and that it is also permissible to conduct the hearing before someone who has been appointed for this purpose by the person making the decision, provided that the person making the decision - in our case the Chief of Staff or the major-general acting on his behalf - will have before him all of the arguments and facts that were raised at the hearing (see HCJ 5445/93 Ramla Municipality v. Minister of the Interior [42], at p. 403; HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [43], at pp. 81-82). Secondly, from a practical viewpoint, establishing a duty to conduct hearings in advance, in the personal presence of the Chief of Staff or the major-general in times of combat and in circumstances in which there are liable to be many detentions in the combat zone as well, may present  significant logistical problems. Moreover, conducting a hearing in the manner proposed by the appellants is contrary to the purpose of the Law, which is to allow the immediate removal of the "unlawful combatants" from the cycle of hostilities in an effective manner. It should be emphasized that the hearing under s. 3(c) of the Law is a preliminary process whose main purpose is to prevent mistakes of identity. As will be explained below, in addition to the preliminary hearing, the Law requires that a judicial review take place before a District Court judge no later than fourteen days from the date of issue of the internment order, thereby lessening the violation claimed by the appellants. In view of all of the above, it cannot be said that the arrangement prescribed in the Law with respect to the hearing falls outside the zone of proportionality.

 (3)      Judicial review of internmentunder the Law

40.  S. 5 of the Law, entitled "Judicial Review", prescribes the following arrangement in subsecs. (a) - (d):

5.  (a) A prisoner shall be brought before a judge of the District Court no later than fourteen days after the date of granting the internment order; where the judge of the District Court finds that the conditions prescribed in s. 3(a) have not been fulfilled he shall quash the internment order.

(b) Where the prisoner is not brought before the District Court and where the hearing has not commenced before it within fourteen days of the date of granting the internment order, the prisoner shall be released unless there exists another ground for his detention under provisions of any law.

            (c)  Once every six months from the date of issue of an order under s. 3(a) the prisoner shall be brought before a judge of the District Court; where the Court finds that his release will not harm State security or that there are special grounds justifying his release, it shall quash the internment order.

(d) A decision of the District Court under this section is subject to appeal within thirty days to the Supreme Court, a single judge of which shall hear the appeal with; the Supreme Court shall have all the powers vested in the District Court under this Law.

The appellants argued before us that the judicial review process prescribed in s. 5 violates the right to personal liberty excessively, for two main reasons: first, under s. 5(a) of the Law, the prisoner should be brought before a District Court judge no later than fourteen days from the date of his detention. According to the appellants, this is a long period of time that constitutes an excessive violation of the right to personal liberty and of the prisoner's right of access to the courts. In this context the appellants argued that in view of the constitutional status of the right to personal liberty and in accordance with the norms applicable in international law, the legislature should have determined that the prisoner be brought to a judicial review "without delay." Secondly, it was argued that the period of time set in s. 5(c) of the Law for conducting periodic judicial review of the internment - every six months - is too long as well as disproportionate. By way of comparison, the appellants pointed out that the Emergency Powers (Detentions) Law prescribes in this regard a period of time that is shorter by half - only three months. In reply, the state argued that in view of the purpose of the Law, the periods of time set in s. 5 are proportionate and they are consistent with the provisions of international law.

41. S. 5 of the Law is based on the premise that judicial review constitutes an integral part of the administrative detention process. In this context it has been held in the past that -

'Judicial intervention in the matter of detention orders is essential. Judicial intervention is a safeguard against arbitrariness; it is required by the principle of the rule of law…. It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be maintained' (per President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at page 368).

The main thrust of the dispute regarding the constitutionality of s. 5 of the Law concerns the proportionality of the periods of time specified therein.

With respect to the periods of time between the internment of the prisoner and the initial judicial review of the internment order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and of discretion whose price is likely to be a person's loss of liberty without just cause, the administrative prisoner should be brought before a judge "as soon as possible" in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [44], at pp. 819-820). It should be noted that this case law is consistent with the arrangements prevailing in international law. International law does not specify the number of days during which it is permitted to detain a person without judicial intervention; rather, it lays down a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the decision on internment should be brought before a judge or another person with judicial authority "promptly" (see art. 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature; see also the references cited in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 369-370). A similar principle was established in arts. 43 and 78 of the Fourth Geneva Convention whereby the judicial (or administrative) review of a detention decision should be made "as soon as possible" (as stated in art. 43 of the Convention) or "with the least possible delay" (as stated in art. 78 of the Convention). Naturally the question as to what is the earliest possible date for bringing a prisoner before a judge depends upon the circumstances of the case.

In the present case, the Internment of Unlawful Combatants Law provides that the date for conducting the initial judicial review is "no later than fourteen days from the date of granting the internment order." The question that arises in this context is whether the said period of time violates the right to personal liberty excessively. The answer to this question lies in the purpose of the Law and in the special circumstances of the particular internment, as well as in the interpretation of the aforesaid provision of the Law. As we have said, the Internment of Unlawful Combatants Law applies to foreign entities who belong to terrorist organizations and who are engaged in ongoing hostilities against the State of Israel. As noted, the Law was intended to apply, inter alia, in circumstances in which a state of belligerence exists in territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not agree that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the zone of proportionality in such a way as to justify our intervention by shortening the maximum period prescribed in the Law. At the same time, it should be emphasized that the period of time prescribed in the Law is a maximum period and it does not exempt the state from making an effort to conduct a preliminary judicial review of the prisoner's case as soon as possible in view of all the circumstances. In other words, although we find no cause to intervene in the proportionality of the maximum period prescribed in the Law, the power of detention in each specific case should be exercised proportionately, and fourteen whole days should not be allowed to elapse before conducting an initial judicial review where it is possible to conduct a judicial review earlier (cf. ADA 334/04 Darkua v. Minister of the Interior [45], at p. 371, in which it was held that even though under the Entry into Israel Law, 5712-1952, a person taken into custody must be brought before the Custody Review Tribunal no later than fourteen days from the date on which he was taken into custody, the whole of the aforesaid fourteen days should not be used when there is no need to do so).

In concluding these remarks it should be noted that s. 3(c) of the Law, cited above, provides that "An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff" [emphasis added - D.B.]. Thus we see that although s. 5(a) of the Law prescribes a maximum period of fourteen days for an initial judicial review, s. 3(c) of the Law imposes an obligation to conduct a hearing for the prisoner before a military officer at the earliest possible time after the order is issued. The aforesaid hearing is certainly not a substitute for a review before a judge of the District Court, which is an independent and objective judicial instance, but the very fact of conducting an early hearing as soon as possible after the issuing of the order may somewhat reduce the concern over an erroneous or ostensibly unjustified detention, which will lead to an excessive violation of the right to liberty.

42.  As stated, the appellants' second argument concerned the frequency of the periodic judicial review of internment under the Law. According to s. 5(c) of the Law, the prisoner must be brought before a District Court judge once every six months from the date of issuing the order; if the court finds that the release of the prisoner will not harm state security or that there are special reasons that justify his release, the court will quash the internment order.

The appellants' argument before us was that a frequency of once every six months is insufficient and it disproportionately violates the right to personal liberty. Regarding this argument, we should point out that the periodic review of the necessity of continuing the administrative detention once every six months is consistent with the requirements of international humanitarian Law. Thus, art. 43 of the Fourth Geneva Convention provides:

'Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.'

It emerges from art. 43 that periodic review of a detention order "at least twice yearly" is consistent with the requirements of international humanitarian law, in a manner that supports the proportionality of the arrangement prescribed in s. 5(c) of the Law. Moreover, whereas art. 43 of the Fourth Geneva Convention considers an administrative review that is carried out by an administrative body to be sufficient, the Internment of Unlawful Combatants Law provides that it is a District Court judge who must conduct a judicial review of the internment orders under the Law, and his decision may be appealed to the Supreme Court which will hear the appeal with a single judge (s. 5(d) of the Law). In view of all this, it cannot be said that the arrangement prescribed in the Law with regard to the nature and frequency of the judicial review violates the constitutional right to personal liberty excessively.

 (4) Departure from the rules of evidence and reliance upon privileged evidence within the framework of proceedings under the Law

43.  S. 5(e) of the Law provides as follows:

'Judicial review 

  5. ...

(e) It shall be permissible to depart from the laws of evidence in proceedings under this Law, for reasons to be recorded; the court may admit evidence, even in the absence of the prisoner or his legal representative, or not disclose such evidence to the aforesaid if, after having reviewed the evidence or heard the submissions, even in the absence of the prisoner or his legal representative,  it is convinced that disclosure of the evidence to the prisoner or his legal representative is likely to harm state security or public security; this provision shall not derogate from any right not to give evidence under Chapter 3 of the Evidence Ordinance [New Version], 5731-1971.

The appellants' argument before us was that the arrangement prescribed in the aforesaid s. 5(e) disproportionately violates the right to personal liberty, since it allows the judicial review of an internment order by virtue of the Law to depart from the laws of evidence and it allows evidence to be heard ex parte in the absence of the prisoner and his legal representative and without it being disclosed to them.

With respect to this argument it should be noted that by their very nature, administrative detention proceedings are based on administrative evidence concerning security matters. The nature of administrative detention for security reasons requires recourse to evidence that does not satisfy the admissibility tests of the laws of evidence and that therefore may not be submitted in a regular criminal trial. Obviously the confidentiality of the sources of the information is important, and it is therefore often not possible to disclose all the intelligence material that is used to prove the grounds for detention. Reliance on inadmissible administrative evidence and on privileged material for reasons of state security lies at the heart of administrative detention, for if there were sufficient admissible evidence that could be shown to the prisoner and brought before the court, as a rule the measure of criminal indictment should be chosen (see Federman v. Minister of Defence [41], at p. 185-186). There is no doubt that a proceeding that is held ex parte in order to present privileged evidence to the court has many drawbacks. But the security position in which we find ourselves in view of the persistent hostilities against the security of the State of Israel requires recourse to tools of this kind when granting a detention order under the Internment of Unlawful Combatants Law, the Emergency Powers (Detentions) Law or the security legislation in areas under military control.

It should be emphasized that in view of the problems inherent in relying upon administrative evidence for the purpose of detention, over the years the judiciary has developed a tool for control and scrutiny of intelligence material, to the extent possible in a proceeding of the kind that takes place in judicial review of administrative detention. In the framework of these proceedings the judge is required to question the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In this regard the following was held in HCJ 4400/98 Braham v. Justice Colonel Shefi [46], at p. 346, per Justice T. Or:

'The basic right of every human being as such to liberty is not an empty slogan. The protection of this basic value requires that we imbue the process of judicial review of administrative detention with meaningful content. In this framework, I am of the opinion that the professional judge can and should consider not only the question of whether, prima facie, the competent authority was authorized to decide what it decided on the basis of the material that was before it; the judge should also consider the question of the credibility of the material that was submitted as a part of his assessment of the weight of the material. Indeed, that fact that certain "material" is valid administrative evidence does not exempt the judge from examining the degree of its credibility against the background of the other evidence and all the circumstances of the case. In this context, the "administrative evidence" label does not exempt the judge from having to demand and receive explanations from those authorities that are capable of providing them. To say otherwise would mean weakening considerably the process of judicial review, and allowing the deprivation of liberty for prolonged periods on the basis of flimsy and insufficient material. Such an outcome is unacceptable in a legal system that regards human liberty as a basic right.'

It has also been held in our case law that in view of the problems inherent in submitting privileged evidence ex parte, the court that conducts a judicial review of an administrative detention is required to act with caution and great precision when examining the material that is brought before it for its eyes only. In such circumstances, the court has a duty to act with extra caution and to examine the privileged material brought before it from the viewpoint of the prisoner, who has not seen the material and cannot argue against it. In the words of Justice A. Procaccia: "… the court has a special duty to act with great care when examining privileged material and to act as the 'mouth' of the prisoner where he has not seen the material against him and cannot defend himself" (HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria [47], at para. 6; see also CrimApp 3514/97 A v. State of Israel [48]).

Thus we see that in view of the reliance on administrative evidence and the admission of privileged evidence ex parte, the court conducting a judicial review under the Internment of Unlawful Combatants Law is required to act with caution and precision in examining the material brought before it. The scope of the judicial review cannot be defined ab initio and it is subject to the discretion of the judge, who will take into account the circumstances of each case on its merits, such as the quantity, level and quality of the privileged material brought before him for his inspection, as opposed to the activity attributed to the prisoner that gives rise to the allegation that he represents a threat to state security. In a similar context the following was held:

'Information relating to several incidents is not the same as information concerning an isolated incident; information from one source is not the same as information from several sources; and information that is entirely based on the statements of agents and informers only is not the same as information that is also supported or corroborated by documents submitted by the security or intelligence services that derive from employing special measures' (per Justice E. Mazza in HCJ 5994/03 Sadar v. IDF Commander in West Bank [49], at para.  6).

Considering all the aforesaid reasons, the requisite conclusion is that reliance on inadmissible evidence and privileged evidentiary material is an essential part of administrative detention. In view of the fact that the quality and quantity of the administrative evidence that supports the cause of detention is subject to judicial review, and in view of the caution with which the court is required to examine the privileged material brought before it ex parte, it cannot be said that the arrangement prescribed in s. 5(e) of the Law, per se, violates the rights of prisoners disproportionately.

(5)     Prisoner's meeting with his lawyer

44. S. 6 of the Law, which is entitled "Right of prisoner to meet with lawyer"' provides the following:

'6. (a) The internee may meet with a lawyer at the

earliest possible date on which such a meeting may be held without harming state security requirements, but no later than seven days prior to his being brought before a judge of the District Court, in accordance with the provisions of s. 5(a).

(b) The Minister of Justice may, by order, confine the right of representation in the proceedings under this Law to a person authorized to act as defence counsel in the military courts under an unrestricted authorization, pursuant to the provisions of s. 318(c) of the Military Justice Law, 5715-1955.'

The appellants raised two main arguments against the proportionality of the arrangements prescribed in the aforesaid s. 6: first, it was argued that under s. 6(a) of the Law, it is possible to prevent a meeting of a prisoner with his lawyer for a period of up to seven days, during which a hearing is supposed to be conducted for the prisoner under s. 3(c) of the Law. It is argued that conducting a hearing without allowing the prisoner to consult a lawyer first is likely to render the hearing meaningless in a manner that constitutes an excessive violation of the right to personal liberty. Secondly, it was argued that s. 6(b) of the Law, which makes representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel, also violates the rights of the prisoner disproportionately.

Regarding the appellants' first argument: no one disputes that the right of the prisoner to be represented by a lawyer constitutes a major basic right that has been recognized in our legal system since its earliest days (see in this regard CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [50], at para. 14, and the references cited there). According to both the basic principles of Israeli law and the principles of international law, the rule is that a prisoner should be allowed to meet with his lawyer as a part of the right of every human being to personal liberty (see the remarks of President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 380-381). Therefore, s. 6(a) of the Law provides that a prisoner should be allowed to meet with his lawyer "at the earliest possible date." It should, however, be recalled that like all human rights, the right to legal counsel, too, is not absolute, and it may be restricted if this is essential for protecting the security of the state (see HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [51], at p. 849; HCJ 6302/92 Rumhiah v. Israel Police [52], at pp. 212-213). As such, s. 6(a) of the Law provides that the meeting of the prisoner with his lawyer may be postponed for security reasons, but no more than seven days may elapse before he is brought before a District Court judge pursuant to s. 5(a) of the Law. Since pursuant to the aforementioned s. 5(a) a prisoner must be brought before a District Court judge no later than fourteen days from the date on which the internment order is granted, this means that a meeting between a prisoner and his lawyer may not be prevented for more than seven days from the time the detention order is granted against him.

Bearing in mind the security purpose of the Internment of Unlawful Combatants Law and in view of the fact that the aforesaid Law was intended to apply in prolonged states of hostilities and even in circumstances where the army is fighting in a territory that is not under Israeli control, it cannot be said that a maximum period of seven days during which a meeting of a prisoner with a lawyer may be prevented when security needs so require falls outside the zone of proportionality (see and cf. Marab v. IDF Commander in Judaea and Samaria [8], where it was held that "[a]s long as the hostilities continue, there is no basis for allowing a prisoner to meet with a lawyer," (at p. 381); see also HCJ 2901/02 Centre for Defence of the Individual v. IDF Commander in West Bank [53]).

In addition to the above, two further points should be made: first, even though the prisoner may be asked to make his submissions in the course of the hearing under s. 3(c) of the Law without having first consulted a lawyer, s. 6(a) of the Law provides that the state should allow the prisoner to meet with his defence counsel "no later than seven days prior to his being brought before a judge of the District Court…." It follows that as a rule, the prisoner is represented in the process of judicial review of the granting of the detention by virtue of the Law. It seems that this could reduce the impact of the violation of the right to consult a lawyer as a part of the right to personal liberty. Secondly, it should be emphasized that the maximum period of seven days does not exempt the state from its obligation to allow the prisoner to meet with his lawyer at the earliest possible opportunity, in circumstances where security needs permit this. Therefore the question of the proportionality of the period during which a meeting between the prisoner and his defence counsel is prevented is a function of the circumstances of each case on its merits. It should be noted that a similar arrangement exists in international law, which determines the period of time during which a meeting with a lawyer may be prevented with regard to all the circumstances of the case, without stipulating maximum times for preventing the meeting (see in this regard, Marab v. IDF Commander in Judaea and Samaria [8], at p. 381).

45.  The appellants' second argument concerning s. 6(b) of the Law should also be rejected. Making representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel under the provisions of s. 318(c) of the Military Justice Law, 5715-1955, is necessary for security reasons, in view of the security-sensitive nature of administrative detention proceedings. The appellants did not argue that the need for an unrestricted authorization as aforesaid affected the quality of the representation that they received, and in any case they did not point to any real violation of their rights in this regard. Consequently the appellants' arguments against the proportionality of the arrangement prescribed in s. 6 of the Law should be rejected.

 (6)      The length of internment under the Law

46.       From the provisions of ss. 3, 7 and 8 of the Internment of Unlawful Combatants Law it emerges that an internment order under the Law need not include a defined date for the end of the internment. The Law itself does not prescribe a maximum period of time for the internment imposed thereunder, apart from the determination that it should not continue after the hostile acts of the force to which the prisoner belongs against the State of Israel "have ceased" (see ss. 7 and 8 of the Law). According to the appellants, this is an improper internment without any time limit, which disproportionately violates the constitutional right to personal liberty. In reply, the state argues that the length of the internment is not "unlimited", but depends on the duration of the hostilities being carried out against the security of the State of Israel by the force to which the prisoner belongs.

It should be said at the outset that issuing an internment order that does not include a specific time limit for its termination does indeed raise a significant difficulty, especially in the circumstances that we are addressing, where the "hostile acts" of the various terrorist organizations, including the Hezbollah organization which is relevant to the appellants' cases, have continued for many years, and naturally it is impossible to know when they will cease. In this reality, prisoners under the Internment of Unlawful Combatants Law may remain in detention for prolonged periods of time. Nevertheless, as we shall explain immediately, the purpose of the Law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be issued without a defined date for their termination does not depart from the zone of proportionality, especially in view of the judicial review arrangements prescribed in the Law.

As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent "unlawful combatants" as defined in s. 2 of the Law from returning to the cycle of hostilities, as long as the hostile acts are continuing and threatening the security of the citizens and residents of the State of Israel. On the basis of a similar rationale, the Third Geneva Convention allows prisoners of war to be interned until the hostilities have ceased, in order to prevent them from returning to the cycle of hostilities as long as the fighting continues. Even in the case of civilians who are detained during an armed conflict, the rule under international humanitarian law is that they should be released from detention immediately after the concrete cause for the detention no longer exists and no later than the date of cessation of the hostilities (see J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at page 451; also cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at pages 518-519, where the United States Supreme Court held that the detention of members of forces hostile to the United States and operating against it in Afghanistan until the end of the specific dispute that led to their arrest is consistent with basic and fundamental principles of the laws of war).

The conclusion that emerges in view of the aforesaid is that the fundamental arrangement that allows a internment order to be granted under the Law without a defined termination date, except for the determination that the internment will not continue after the hostile acts against the State of Israel have ended, does not exceed the bounds of the room for constitutional maneuver. It should, however, be emphasized that the question of the proportionality of the duration of internment under the Law should be examined in each case on its merits and according to its specific circumstances. As we have said, the Internment of Unlawful Combatants Law prescribes a duty to conduct a periodic judicial review once every six months. The purpose of the judicial review is to examine whether the threat presented by the prisoner to state security justifies the continuation of the internment, or whether the internment order should be cancelled in circumstances where the release of the prisoner will not harm the security of the state or where there are special reasons justifying the release (see s. 5(c) of the Law). When examining the need to extend the internment, the court should take into account inter alia the period of time that has elapsed since the order was issued. The ruling in A v. Minister of Defence [1] concerning detention under the Emergency Powers (Detentions) Law, per President A. Barak, holds true in our case as well:

'Administrative detention cannot continue indefinitely. The longer the period of detention has lasted, the more significant the reasons that are required to justify a further extension of detention. With the passage of time the measure of administrative detention becomes onerous to such an extent that it ceases to be proportionate' (ibid., at p. 744).

Similarly it was held in A v. IDF Commander [16] with regard to administrative detention by virtue of security legislation in the region of Judea and Samaria that -

'The duration of the detention is a function of the threat. This threat is examined in accordance with the circumstances. It depends upon the level of risk that the evidence attributes to the administrative prisoner. It depends upon the credibility of the evidence itself and how current it is. The longer the duration of the administrative detention, the greater the onus on the military commander to demonstrate the threat presented by the administrative prisoner' (ibid., at para. 7).

Indeed, as opposed to the arrangements prescribed in the Emergency Powers (Detentions) Law and in the security legislation, a court acting pursuant to the Internment of Unlawful Combatants Law does not conduct a judicial review of the extension of the internment order, but examines the question of whether there is a justification for cancelling an existing order, for the reasons listed in s. 5(c) of the Law. Nevertheless, even an internment order under the Internment of Unlawful Combatants Law cannot be sustained indefinitely. The period of time that has elapsed since the order was granted constitutes a relevant and important consideration in the periodic judicial review for determining whether the continuation of the internment is necessary. In the words of Justice A. Procaccia in a similar context:

'The longer the period of the administrative detention, the greater the weight of the prisoner's right to his personal liberty when balanced against considerations of public interest, and therefore the greater the onus placed upon the competent authority to show that it is necessary to continue holding the person concerned in detention. For this purpose, new evidence relating to the prisoner's case may be required, and it is possible that the original evidence that led to his internment in the first place will be insufficient' (Kadri v. IDF Commander in Judaea and Samaria  [47], at para. 6).

In view of all the above, a court that conducts a judicial review of an internment under the Internment of Unlawful Combatants Law is authorized to confine and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant" and in view of the time that has passed since the internment order was issued. By means of judicial review it is possible to ensure that the absence of a concrete termination date for the internment order under the Law will not constitute an excessive violation of the right to personal liberty, and that prisoners under the Law will not be interned for a longer period greater than that required by material security considerations.

(7) The possibility of conducting criminal proceedings parallel to an internment proceeding by virtue of the Law

47. S. 9 of the Law, which is entitled "Criminal proceedings", provides the following:

'9. (a) Criminal proceedings may be initiated against an unlawful combatant under the provisions of any law.

(b) The Chief of Staff may make an order for the internment of an unlawful combatant under s. 3, even if criminal proceedings have been initiated against him under the provisions of any law.'

According to the appellants, the aforesaid s. 9 violates the right to personal liberty disproportionately since it makes it possible to detain a person under the Internment of Unlawful Combatants Law even though criminal proceedings have already been initiated against him, and vice versa. The argument is that by conducting both sets of proceedings it is possible to continue to intern a person even after he has finished serving the sentence imposed on him in the criminal proceeding, in a manner that allegedly amounts to cruel punishment. In reply the state argued that this is a fitting and proportionate arrangement in view of the fact that it is intended to apply in circumstances in which a person will shortly finish serving his criminal sentence and hostilities are still continuing between the organization of which he is a member and the State of Israel; consequently, his release may harm state security.

In relation to these arguments we should reiterate what we said earlier (at para. 33 above), i.e. that initiating a criminal trial against a person is different in its nature and purpose from the measure of administrative detention. In general it is desirable and even preferable to make use of criminal proceedings where this is possible. Recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are not possible, due to lack of sufficient admissible evidence or because it is impossible to disclose privileged sources. However, the reality of prolonged terrorist operations is complex. There may be cases in which a person is detained under the Internment of Unlawful Combatants Law and only at a later stage evidence is discovered that makes it possible to initiate criminal proceedings. There may be other cases in which a person has been tried and convicted and has served his sentence, but this does not provide a satisfactory solution to preventing the threat that he presents to state security in circumstances in which, after having served the sentence, he may once again become a security threat. Since a criminal trial and administrative detention are proceedings that differ from each other in their character and purpose, they do not rule each other out, even though in my opinion substantial and particularly weighty security considerations are required to justify recourse to both types of proceeding against the same person. In any case, the normative arrangement that allows criminal proceedings to be conducted alongside detention proceedings under the Law does not, in itself, create a disproportionate violation of the right to liberty of the kind that requires our intervention.

Interim summary

48.  Our discussion thus far of the requirement of proportionality has led to the following conclusions: first, the measure chosen by the legislator, i.e. administrative detention that prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel, realizes the legislative purpose and therefore satisfies the requirement of a rational connection between the legislative measure and the purpose that the Law is intended to realize. Secondly, the measures mentioned by the appellants in their arguments before us, i.e. recognizing them as prisoners of war, bringing them to a criminal trial or detaining them under the Emergency Powers (Detentions) Law, do not realize the purpose of the Internment of Unlawful Combatants Law and therefore they cannot constitute a suitable alternative measure to internment in accordance with the Law. Thirdly, the specific arrangements prescribed in the Law do not, per se and irrespective of the manner in which they are implemented, violate the right to personal liberty excessively, and they fall within the bounds of the room for constitutional maneuver granted to the legislature. In view of all this, the question that remains to be examined is whether the combination of the arrangements prescribed in the Law satisfies the test of proportionality in the narrow sense. In other words, is the violation of the right to personal liberty reasonably commensurate with the public benefit that arises from it in achieving the legislative purpose? Let us now examine this question.

Proportionality in the narrow sense - A reasonable relationship between  violation of the constitutional right and the public benefit it engenders

49.       The Internment of Unlawful Combatants Law was enacted against the background of a harsh security situation. The citizens and residents of the State of Israel have lived under the constant threat of murderous terrorism of which they have been victim for years and which has harmed the innocent indiscriminately. In view of this, we held that the security purpose of the Law - the removal of "unlawful combatants" from the terrorist organizations' cycle of hostilities against the State of Israel - constitutes a proper purpose that is based on a public need of a kind that is capable of justifying a significant violation of the right to personal liberty. For all these reasons, we were of the opinion that the legislature should be accorded relatively wide room for maneuver to allow it to choose the proper measure for realizing the legislative purpose (see para. 31 above).

As we have said, the measure that the legislature chose in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention in accordance with the arrangements that are prescribed in the Law. There is no doubt that this is a damaging measure that should be employed as little as possible. However, a look at the combined totality of the above arrangements, in the light of the interpretation that we discussed above, leads to the conclusion that according to constitutional criteria, the violation of the constitutional right is reasonably commensurate with the social benefit that arises from the realization of the legislative purpose. This conclusion is based on the following considerations taken together:

 First, for the reasons that we discussed at the beginning of our deliberations, the scope of application of the Law is relatively limited: the Law does not apply to citizens and residents of the State of Israel but only to foreign parties who endanger the security of the state (see para. 11 above).

Secondly, the interpretation of the definition of "unlawful combatant" in s. 2 of the Law is subject to constitutional principles and international humanitarian law that require proof of an individual threat as a basis for administrative detention. Consequently, for the purpose of internment under the Internment of Unlawful Combatants Law, the state must furnish administrative proof that the prisoner directly or indirectly played a material part - one which is neither negligible nor marginal - in hostile acts against the State of Israel; or that the prisoner belonged to an organization that is perpetrating hostile acts, taking into account his connection and the extent of his contribution to the organization's cycle of hostilities in the broad sense of this concept. In our remarks above we said that proving the conditions of the definition of "unlawful combatant" in the said sense includes proof of a personal threat that arises from the form in which the prisoner was involved in the terrorist organization. We also said that the state has declared before us that until now it has taken pains to prove the personal threat of all the prisoners under the Law specifically, and it has refrained from relying on the probative presumptions in ss. 7 and 8 of the Law. In view of this, we saw no reason to decide the question of the constitutionality of those presumptions (see paras. 24 and 25 above).

Thirdly, we held that in view of the fact that administrative detention is an unusual and extreme measure, and in view of its significant violation of the constitutional right to personal liberty, the state is required to prove, by means of clear and convincing evidence, that the conditions of the definition of "unlawful combatant" are fulfilled and that the continuation of the internment is essential. This must be done in both the initial and the periodic judicial reviews. In this context we held that importance should be attached both to the quantity and the quality of the evidence against the prisoner and to the extent that the relevant intelligence information against him is current (see paras. 22 and 23 above).

Fourthly, we attributed substantial weight to the fact that internment orders under the Internment of Unlawful Combatants Law are subject to preliminary and periodic judicial reviews before a District Court judge, whose decisions may be appealed to the Supreme Court, which will hear the case with a single judge. Within the framework of these proceedings, the judge is required to consider the question of the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In view of the reliance upon administrative evidence and the fact that privileged evidence is admitted ex parte, we held that the judge should act with caution and great precision when examining the material brought before him. We also held that a court that conducts a judicial review of internment under the Law may restrict and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant", and in view of the time that has elapsed since the internment order was issued. For this reason we said that it is possible, through the process of judicial review, to ensure that the absence of a specific date for the termination of the detention order under the Law does not violate the right to personal liberty excessively, and that prisoners by virtue of the Law will not be interned for a longer period than what is required by substantial security considerations (para. 46 above).

Finally, although the arrangements prescribed in the Law for the purpose of exercising the power of internment are not the only possible ones, we reached the conclusion that the statutory arrangements that we considered do not exceed the bounds of the room for maneuver to an extent that required our intervention. In our remarks above we emphasized that the periods of time prescribed by the Law for conducting a preliminary judicial review after the internment order has been granted, and with respect to preventing a meeting between the prisoner and his lawyer, constitute maximum periods that do not exempt the state from the duty to make an effort to shorten these periods in each case on its merits, insofar as this is possible in view of the security constraints and all the circumstances of the case. We also held that internment under the Internment of Unlawful Combatants Law cannot continue indefinitely, and that the question of the proportionality of the duration of the detention must also be examined in each case on its merits according to the particular circumstances.

In view of all of the aforesaid considerations, and in view of the existence of relatively wide room for constitutional maneuver in view of the essential purpose of the Law as explained above, our conclusion is that the Internment of Unlawful Combatants Law satisfies the third subtest of the requirement of proportionality, i.e., that the violation of the constitutional right to personal liberty is reasonably commensurate with the benefit accruing to the public from the said legislation. Our conclusion is based on the fact that according to the interpretation discussed above, the Law does not allow the internment of innocent persons who have no real connection to the cycle of hostilities of the terror organizations, and it establishes mechanisms whose purpose is to ameliorate the violation of the prisoners' rights, including a cause of detention that is based on a threat to state security and the conducting of a hearing and preliminary and periodic judicial reviews of internment under the Law.

Therefore, for all the reasons that we have mentioned above, it is possible to determine that the violation of the constitutional right to personal liberty as a result of the Law, although significant and severe, is not excessive. Our conclusion is therefore that the Internment of Unlawful Combatants Law satisfies the conditions of the limitation clause, and there is no constitutional ground for our intervention.

From the General to the Specific

50.  As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out pursuant to security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the nullification of the security legislation in force there, on 20 September 2005 the Chief of Staff issued internment orders for the appellants under the Internment of Unlawful Combatants Law.

On 22 September 2005 the Tel-Aviv-Jaffa District Court began the initial judicial review of the appellants' case. From then until now the District Court has conducted four periodic judicial reviews of the appellants' continuing internment. The appeal against the decision of the District Court not to order the release of the appellants within the framework of the initial judicial review was denied by this court on 14 March 2006 (Justice E. Rubinstein in CrimA 1221/06 Iyyad v. State of Israel [54]). Before us are the appeals on three additional periodic decisions of the District Court not to rescind the appellants' internment orders.

51.  In their pleadings, the appellants raised two main arguments regarding their particular cases: first, it was argued that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. Secondly, it was argued that even if the Internment of Unlawful Combatants Law is constitutional, no cause for internment thereunder has been proved with respect to the appellants. According to this argument, it was not proved that the appellants are members of the Hezbollah organization, nor has it been proved that their release would harm state security.

52.  We cannot accept the appellants' first argument. The end of military rule in the Gaza Strip did not obligate Israel to automatically release all the prisoners it held who are inhabitants of the Gaza Strip, as long as the personal threat posed by the prisoners persisted against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in arts. 132-133 of the Fourth Geneva Convention. Art. 132 of the Convention establishes the general principle that the date for the release of prisoners is as soon as the reasons that necessitated their internment no longer exist. The first part of art. 133 of the Convention, which relates to a particular case that is included within the parameters of the aforesaid general principle, goes on to provide that the internment will end as soon as possible after the close of hostilities. Art. 134 of the Convention, which concerns the question of the location at which the prisoners should be released, also relates to the date on which hostilities end as the date on which prisoners should be released from internment. Unfortunately, the hostile acts of the terrorist organizations against the State of Israel have not yet ceased, and they result in physical injuries and mortalities on an almost daily basis. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the prisoners that it held when military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual danger posed by the prisoners against the background of the continued hostilities against the security of the state.

53. With regard to the specific internment orders against the appellants by virtue of the Internment of Unlawful Combatants Law, the District Court heard the testimonies of experts on behalf of the security establishment and studied the evidence brought before it. We too studied the material that was brought before us during the hearing of the appeal. The material clearly demonstrates the close links of the appellants to the Hezbollah organization and their role in the organization's ranks, including involvement in hostile acts against Israeli civilian targets.  We are therefore convinced that the individual threat of the appellants to state security has been proved, even without resorting to the probative presumption in s. 7 of the Law (see and cf. per Justice E. Rubinstein in Iyyad v. State of Israel [54], at para. 8(11) of his opinion). In view of the aforesaid, we cannot accept the appellants' contention that the change in the form of their detention - from detention by virtue of an order of the IDF Commander in the Gaza Strip to internment orders under the Law - was done arbitrarily and without any real basis in the evidence. As we have said, the change in the form of detention was necessitated by the end of the military rule in the Gaza Strip, and that is why it was done at that time. The choice of internment under the Internment of Unlawful Combatants Law as opposed to detention under the Emergency Powers (Detentions) Law was made, as we explained above, because of the purpose of the Law under discussion and because it is suited to the circumstances of the appellants' cases.

The appellants further argued that their release does not pose any threat to state security since their family members who were involved in terrorist activities have been arrested or killed by the security forces, so that the terrorist infrastructure that existed before they were detained no longer exists. They also argued that the passage of time since they were arrested reduces the risk that they present. Regarding these arguments it should be said that after inspecting the material submitted to us, we are convinced that the arrest or death of some of the appellants' family members does not per se remove the security threat that the appellants would present were they to be released from detention. We are also convinced that, in the circumstances of the case, the time that has passed since the appellants were first detained has not reduced the threat that they present. In its decision in the third periodic review, the trial court addressed this issue as follows:

'The total period of the detention is not short. But this is countered by the anticipated threat to state security if the prisoners are released. As we have said, a proper balance should be struck between the two. The experts are once again adamant in their opinion that there is a strong likelihood that the two prisoners will resume their terrorist activity if they are released. In such circumstances, the operational abilities of the Hezbollah infrastructure in the Gaza Strip and outside it will be enhanced and the threats to the security of the state and its citizens will increase. The current situation in the Gaza Strip is of great importance to our case. The fact that the Hamas organization has taken control of the Gaza Strip and other recent events increase the risks and, what is more, the difficulty of dealing with them.... It would therefore be a grave and irresponsible act to release these two persons, especially at this time, when their return to terrorism can be anticipated and is liable to increase the activity in this field. I cannot say, therefore, that the passage of time has reduced the threat presented by the two prisoners, who are senior figures in the terrorist infrastructure, despite the differences between them. Neither has the passage of time reduced the threat that they represent to an extent that would allow their release.'

In its decision in the fourth periodic review the trial court also emphasized the great threat presented by the two appellants:

'The privileged evidence brought before me reveals that the return of the two to the field is likely to act as a springboard for serious attacks and acts of terror. In other words, according to the evidence brought before me, the respondents are very dangerous. In my opinion it is not at all possible to order their release. This conclusion does not ignore the long years that the two of them have been held behind prison walls. The long period of time has not reduced the threat that they represent' (at page 6 of the court's decision of 20 March 2008).

In view of all of these reasons, and after having studied the material that was brought before us and having been convinced that there is sufficient evidence to prove the individual security threat represented by the appellants, we have reached the conclusion that the trial court was justified when it refused to cancel the internment orders in their cases. It should be pointed out that the significance of the passage of time naturally increases when we are dealing with administrative detention. At the present time, however, we find no reason to intervene in the decision of the trial court.

In view of the result that we have reached, we are not required to examine the appellants' argument against the additional reason that the trial court included in its decision, relating to the fact that the evidence was strengthened by the silence of the first appellant in the judicial review proceeding that took place in his case, a proceeding that was based, inter alia, on privileged evidence that was not shown to the prisoner and his legal representative. The question of the probative significance of a prisoner's silence in judicial review proceedings under the Internment of Unlawful Combatants Law does not require a decision in the circumstances of the case before us and we see no reason to express a position on this matter.

Therefore, for all of the reasons set out above, we have reached the conclusion that the appeals should be denied.

 

Justice E.E. Levy:

I agree with the comprehensive opinion of my colleague, the President.

It is in the nature of things that differences may arise between the rules of international humanitarian law - especially written rules - and the language of Israeli security legislation, if only because those conventions that regulate the conduct of players on the international stage were formulated in a very different reality, and their drafters did not know of entities such as the Hezbollah organization and the like.

Therefore, insofar as it is possible to do so by means of legal interpretation, the court will try to narrow these differences in a way that realizes both the principles of international law and the purpose of internal legislation. In this regard I will say that I would have preferred to refrain from arriving at any conclusions, even in passing, regarding the provisions of ss. 7 and 8 of the Internment of Unlawful Combatants Law, 5762-2002. These provisions are a central part of this Law, as enacted by the Knesset. Insofar as there are differences between them and the provisions of international law, as argued by the appellants and implied by the state's declarations with regard to the manner in which it conducts itself de facto, the legislature ought to take the initiative and address the matter.

Justice A. Procaccia:

I agree with the profound opinion of my colleague, President Beinisch.

Appeals denied as per the judgment of President D. Beinisch.

8 Sivan 5768

11 June 2008

The Supreme Court sitting as the High Court of Justice

 

HCJ 3856/11

 

Before:                                                The Honorable Deputy President M. Naor                                                                 The Honorable Justice E. Arbel                                                                                  The Honorable Justice N. Solberg

 

The Petitioner:                        Anonymous

 

v e r s u s

 

The Respondents:                   1.       The Supreme Sharia Court of Appeals

                                                      2.       The Sharia Court in Tayibe

                                                      3.       Anonymous

 

The Parties Requesting

to Join as amici curiae:           1.       "Kayan" – Feminist Organization

                   2.       The Concord Research Center for Integration of International Law in Israel

                                                                                   

Petition to Grant an Order Nisi

 

Date of Session:                                           13^th of Kislev, 5773 (November 27, 2012)

 

On behalf of the Petitioner:                Adv. V. Herzberg, Adv. T Mudlij

 

On behalf of Respondents 1-2:           Adv. A. Avzek

 

On behalf of Respondent 3:                Adv. A. Natur

 

On behalf of Party 1 requesting

to join as amicus curiae:                      Adv. S. Batshon

 

On behalf of Party 2 requesting

to join as amicus curiae:                      Adv. F. Raday

 

On behalf of the Attorney General:    Adv. D. Bricksman

 

 

J U D G M E N T

 

 

Justice E. Arbel:

 

Before us is a petition against the decision of the Sharia Court of Appeals ruling it is impossible to appoint a female arbitrator in a divorce proceeding before the court.

 

 

 

 

Background and Review of the Proceedings

 

1.The Petitioner and Respondent 3 (hereinafter: the “Respondent”) are Muslim Israeli citizens who are married to each other. A dispute erupted between the two, which led to various proceedings held in civil courts, including motions for protective orders, alimony actions and more. At the same time, on April 23, 2009, the Respondent filed an “Arbitration Claim” with the Sharia Court in Tayibe. There, the Petitioner claimed that the claim was filed in bad faith since the Respondent intended to divorce. Despite this, the court accepted the Respondent’s petition and on November 1, 2010, instructed that each party appoint an arbitrator on its behalf pursuant to Sections 130 and 131 of the Ottoman Family Law (hereinafter: the “Family Law”). On January 17, 2011, the Petitioner filed a notice to the Sharia court regarding the appointment of Hajjah Rudina Amsha from Tayibe as the arbitrator on her behalf.

 

2.On January 18, 2011, the Sharia Court ruled that: “This court sees that the religious scholars stipulated that the arbitrators must be men, according to the Maliki, Hanbali and Shafi schools of thought…”. Later the court required the Petitioner to appoint a male arbitrator. The Petitioner appealed this decision to the Sharia Court of Appeals. On April 5, 2011, the court denied the appeal. It was ruled that Section 130 of the Family Law, which is the binding law in Sharia courts in Israel, is based on the Maliki interpretation. Since the Maliki required that arbitrators be men, it is impossible to appoint women as arbitrators. Following the judgment, the Sharia Court in Tayibe decided again that the Petitioner must appoint an arbitrator on her behalf within a week. After the Petitioner did not appoint an arbitrator on her behalf, the court appointed two male arbitrators on its behalf on May 11, 2011. At the same time, this petition was filed. Notably, on June 2, 2011, this Court (Honorable Justice Meltzer) granted the Petitioner an interim order prohibiting the arbitrators appointed by the Sharia court from issuing any decisions in the entire matter handed over to their care, until another decision in the petition.

 

3.Following a hearing we held on July 13, 2011, we decided to issue an order nisi, and to have the Attorney General file its position on the matter. After receiving the positions of the parties, we held an additional hearing on May 7, 2012, in which we decided that the Sharia Court of Appeals should give a detailed and reasoned decision on the parties’ arguments, and particularly regarding the applicability of the Equal Rights for Women Act, 5711-1951 (hereinafter: the “Equal Rights for Women Act” or the “Act”). Such judgment was indeed handed down and provided to this Court on August 9, 2012, whose main points we shall address immediately. On November 27, 2012, we held a final hearing in the petition and heard the parties’ arguments. In order to complete the picture, it shall be noted that two organizations filed motions to join the petition as amici curiae“Kayan”–Feminist Organization (hereinafter: the “Kayan Organization”), and the second is the Concord Research Center for Integration of International Law in Israel (hereinafter: the “Concord Center”). Following these proceedings, it is now time to deliver our decision in the petition.

 

 

 

The Sharia Court of Appeals’ Judgment

 

4.As mentioned, following our decision, a reasoned judgment in the matter was given by the Sharia Court of Appeals on June 18, 2012. The Court stated that first the question of which school of thought was chosen by the Ottoman legislator when legislating Section 130 of the law, which binds the Sharia courts in Israel, must be addressed. The Court clarified that according to the Maliki school of thought, the arbitrators serve as a kind of Qadi, and not as representatives of the parties. Their authority is to reconcile the couple or divorce them from each other even without the couple’s consent. In contrast, according to the Hanafi, Shafi and Hanbali schools of thought, the arbitrators’ authority ends with delivering a report to the Qadi who is the one who performs the divorce according to the arbitrators’ report, and the arbitrators do not have authority to perform the divorce unless they have been permitted to do so. The Court further ruled that in Section 130 of the law, the Ottoman legislator relied on the Maliki's opinion, as the language of the section authorizes the arbitrators to dissolve the marriage and provides that the arbitrators’ judgment will be final. The court also relied on the explanatory notes to the Family Law that explicitly referred to the Maliki school of thought.

 

5.The Court stated that the Sharia courts indeed operate pursuant to this principle when implementing Section 130 of the Family Law, and it has been ruled that the act of the panel of arbitrators is a judicial act that creates a judgment similar to the act of a Qadi. The Qadi's only role is to confirm whether the arbitrators’ report is consistent with the law, and if not, to void it. It has been ruled that the Qadi may intervene in the scope of the dowry (mahr) given to the women if he found that the arbitrators unjustifiably reduced it, however this is only the case for a monetary matter and where the court has tools to intervene, in the absence of a Sharia reason for the reduction. It has been ruled that the purpose of the intervention is to prevent the prolonging of the litigation between the parties. In contrast, the court cannot intervene in other matters of the arbitrators’ report since the arbitrators are the ones who heard the couple’s arguments based upon which they reached their conclusions. In summary, the Sharia Court of Appeals rules that “the arbitrators, pursuant to Section 130 of the law, are Qadis and not representatives, and they are the ones who rule regarding the dissolution of a marriage, and the Qadi’s authority is to confirm their ruling.”

 

6.The Court stated that the law does not clarify the terms and characteristics required of the arbitrator, and therefore, it is necessary to turn to the customary opinion in the Maliki school of thought to clarify such terms. According to this school of thought, the arbitrators must be men. The court clarifies that the religious scholars that viewed arbitrators as representatives permitted women to be arbitrators, while the religious scholars that viewed arbitrators as Qadis did not permit women to be arbitrators. The Court further noted that according to the Hanafi school of thought a woman can also be a Qadi.

 

7.As for the Equal Rights for Women Act, the court rules that both of the Act’s exceptions apply: the exception regarding laws permitting or prohibiting marriage and the exception regarding appointing a person to a religious position. The Court emphasized that the arbitrators’ judgment has Sharia implications that stem from the dissolution judgment, which is final and binding, and therefore the Equal Rights for Women Act should not be applied to the appointment of arbitrators. The Court rejected the argument that the Family Law is a civil law and ruled that this law is the codification of Sharia laws that includes laws regarding marriage and divorce that were taken from various schools of thought. The Court also stated that at hand is a religious lex specialis that prevails over the provisions of the Mejelle which is legi generali. The Court cautioned that adopting a different school of thought would harm women, since according to other schools of thought the arbitrator cannot perform a divorce without the husband’s consent, while the Maliki school of thought is the only one that applies a cause of action for dissolving a marriage without the husband’s consent.

 

The Petitioner’s Arguments

 

8.The Petitioner’s attorney claims that Section 130 of the Family Law does not prohibit the appointment of a female arbitrator. According to him, we are concerned with a statue of a civil governing body within the codification process and reforms made during the Ottoman Empire. The Family Law was intended to introduce some into the existing rules and also to reform the legislation while adopting and integrating opinions from various schools of thought and creating a single body of binding legislation. It follows, as argued, that the law is to be interpreted similarly to other civil laws, rather than according to interpretations that were customary among the religious scholars in the period preceding the law’s legislation. It is further argued that the Ottoman legislature did not adopt the Maliki interpretation across the board and allowed itself to prescribe norms that diverge from this school of thought. For example, it is argued that the idea the law established, whereby the authority to dissolve the relationship is granted to the Qadi and not the arbitrators, deviates from Maliki law, as does the Qadi’s authority to appoint a third deciding arbitrator. The Petitioner’s attorney also refers to religious institutions in Muslim countries, such as Jordan, Egypt and Morocco, and even in the Palestinian Authority, where women were appointed in recent years to serve in the position of Qadis. The Petitioner’s attorney claims that according to the civil interpretation, Section 130 of the law is to be interpreted as allowing the appointment of a male or female arbitrator, based also on comparison with the provisions of the Mejelle, which deal with arbitration and grant the parties the freedom to choose the arbitrator acceptable to them.

 

9.The Petitioner’s attorney further claims that the Sharia court’s decisions are to be reversed as they are contrary to the Equal Rights for Women Act. According to the attorney, the Petitioner’s right to be heard (audi alteram partem) was impaired as her arguments regarding the appointment of the female arbitrator were not heard at all before the decisions of the Sharia courts were handed down.

 

10.In the supplementary arguments by the Petitioner, following the Sharia court giving its supplementary judgment, her attorney repeated the argument that the interpretation of Section 130 of the law must be separated from the Maliki school of thought and the law must be treated as an independent and modern statute. According to him, the Sharia courts have also not necessarily adhered to the Maliki school of thought in interpreting the law and that it has been ruled many times that the court has the authority to intervene and revoke the arbitrators’ judgment. He further argues that the Mejelle is based on the Hanafi school of thought and that that is how the residents of the country conducted themselves for several years, and therefore the rules of the Maliki school of thought should not be imposed upon them now. He states that no specific characteristics are required of the arbitrators other than them being acceptable to the parties.

 

The Respondent’s Arguments

 

11.The Respondent’s attorney claims first that the Petitioner’s right to be heard was not impaired since all her arguments were reviewed in writing before the Sharia Court of Appeals, which is not required to conduct oral hearings. As for Section 130 of the Family Law, he argues that this is part of the material-judicial-religious law that is based on the Quran. He presents references that the arbitrator is a judge of sorts who is somewhat inferior to a Qadi. The arbitrators’ authority to listen to the parties’ arguments, and even to rule on a divorce, indicates, so it is argued, their judicial position. The arbitrators’ authorities go to dissolving the relationship between the couple, and therefore their actions relate to the hard core of the laws of divorce. The Respondent’s attorney further states that the Court must accept the arbitrators’ judgment as long as it is not flawed. His conclusion is, therefore, that this is a religious judicial position that falls within the exceptions of the Equal Rights for Women Act. The Respondent’s attorney agrees that the Family Law was indeed legislated primarily based on the Hanafi school of thought, but it includes sections, such as Section 130, which were legislated based on the Maliki school of thought. Furthermore, he argues that the Court is authorized to appoint arbitrators without granting the parties the option of choosing arbitrators on their behalf. Finally, the attorney argues that this is not a case for the High Court of Justice to intervene.

 

12.In relating to the Sharia Court of Appeals’ supplementary judgment, the Respondent’s attorney reiterates his arguments and supports substance of the supplementary judgment. According to him, the Family Law is not a civil law, and contrary to the Mejelle, it is directly based on the Quran, which is a religious law. It is a lex specialis that prevails over the legi generali of the Mejelle. It is also argued that one must distinguish between arbitration under the Mejelle and arbitration under the Family Law. Arbitration under the Mejelle is pursuant to the parties’ desire and at their choice, while arbitration under the Family Law is mandatory by law and it is in fact the Qadi who is authorized to appoint. He further mentions that according to the Maliki school of thought, the arbitrators must be male.

 

The Position of the Attorney General

 

13.At our request, the Attorney General presented its position that the Family Law is a civil law that was legislated based on Sharia Law. During the Ottoman period it was applied to all of the subjects of the Empire irrespective of their religion, but since 1919 this law binds only the Sharia courts. The Family Law was primarily legislated based on the Hanafi school of thought, and it is turned to only upon a lacuna in the law. However, there are sections that were legislated based on other schools of thought, including Section 130, which is based on the Maliki school of thought. According to the Attorney General, the adoption of the Maliki school of thought in this context was apparently meant to benefit women, since this school of thought allows a woman to separate from her husband in broader circumstances and causes of action than the other schools of thought. According to this school of thought, the arbitrators must try to reconcile the couple that is in conflict, but should their attempts be unsuccessful, they have the power to separate the couple even without their consent. The arbitrators are further authorized to determine the sum of the dowry that the husband must pay the wife, according to the degree of fault by each party. The Attorney General clarifies that according to the Maliki school of thought the arbitrators are Qadis for all intents and purposes, and therefore, their ruling is final and binds the Qadi who is not authorized to intervene therein. Additionally, the arbitrator must be a man. However, there are schools of thought which relate to the arbitrators as representatives and allow a woman to be appointed to this position.

 

14.The Attorney General examines the two exceptions of the Equal Rights for Women Act. As for the exception regarding laws permitting or prohibiting marriage and divorce, the Attorney claims that there is doubt whether this exception applies. Indeed, according to the Maliki school of thought the arbitrators are authorized to dissolve the marriage, however, on the other hand it is not actual laws of divorce that are at hand, but rather the identity of those authorized to determine the divorce. According to the Attorney, it is doubtful whether the exception was meant to apply also to those authorized to implement the marriage and divorce laws. As for the exception regarding the appointment of a religious position pursuant to religious law, the Attorney General claims that according to the Maliki school of thought arbitrators have a somewhat judicial position that requires Sharia education. However he notes that this Court has ruled in the past that the arbitrators’ decision is not final and their decision is subject to the confirmation of the Sharia court, in which the court is also authorized to intervene. The Attorney General notes that the Sharia courts indeed do so de facto, similarly to the Hanafi school of thought. According to the Attorney General, these figures allegedly indicate that the exception does not apply to the appointment of the arbitrators. However, the Attorney General believes the exception also applies to religious positions that are not judicial. Since the position of the arbitrator was created by virtue of the Muslim religious law, it appears that the exception in the Equal Rights for Women Act does apply. The Attorney General adds that the Family Law grounds religious laws even if it was made by the Ottoman legislator which applied the law to all the subjects of the Empire.

 

The Position of the “Kayan” Organization

 

15.The "Kayan" organization emphasizes that the decisions of the Sharia court constitute an ultra vires act since they are contrary to the principle of equality and to the Equal Rights for Women Act. As for the exception regarding the appointment of a religious position according to religious law, the organization argues that it is to be interpreted narrowly, so that it shall only apply to actual religious or judicial positions. It is further argued that the arbitrator’s position is not a judicial or religious position and therefore does not fall within this exception. According to the provisions of the Family Law and according to the customary practice of Sharia courts, the arbitrators have the status of representatives of the parties and their recommendations are subject to the court’s confirmation. It follows that this is not a judicial position. According to the organization, these arguments were already accepted and ruled in the past, by this Court. The organization further adds that according to Sharia law and customary practice, the arbitrator can be any person whom either party chooses to appoint and that there are no criteria for such choice. The arbitrators can even be relatives of the couple. It is further argued that it is obvious that a relative, who lacks objectivity and independence in performing his duties, cannot accept a judicial position. Additionally, the Qadi is the one with the authority to confirm the marriage or to declare a separation between the parties. Scholars indicate that the Sharia court has deviated from the Maliki school of thought in all that relates to the roles of the arbitrator and has ruled that the court can reject the arbitrator’s judgment.

 

The “Kayan” organization further clarifies that it is its position that the arbitrator is not a religious position. There are no criteria for appointing an arbitrator, who may also be a relative, which indicates this is not a religious position. At issue, so it is argued, is a familial-social role that is intended to reconcile the couple. It also states that the Family Law is a civil law and argues that in any event the interpretation that minimizes the violation of the principle of equality should be chosen.

 

16.As for the exception relating to laws permitting or prohibiting marriage and divorce, the “Kayan” organization argues that since the arbitrator does not fulfill a judicial or religious position, and since the court is the one that rules on the divorce claim as it is permitted to reject the arbitrators’ recommendation, then this is not a matter of violating laws permitting or prohibiting divorce. The arbitrator has limited discretion that amounts to examining the fault of each of the parties and making a recommendation in the matter of the dowry.

 

17.In general, the “Kayan” organization further argues that preventing the appointment of a woman to the position of an arbitrator in a Sharia court critically violates women’s rights to dignity. It emphasizes that there is no relevant difference between men and women in terms of this position, and therefore, any distinction between them is improper. Furthermore, according to the organization, the appointment of women as arbitrators in necessary in order to realize women litigators’ right to self-expression, and so that they may have an arbitrator on their behalf who would listen to their inner-most feelings in such personal and sensitive matters, who would serve as a voice and a mouthpiece to the woman. Doing so would, in fact, prevent a double infringement, both to the arbitrating women and to the litigating women. Preventing the appointment of a woman as an arbitrator prejudices Muslim women’s access to Sharia courts and contributes to silencing their voice.

 

The Position of the Concord Center

 

18.The Concord Center focuses its arguments on the implications of international law on the case at hand. According to the Center, the Family Law and the Equal Rights for Women Act must be interpreted in light of the human rights conventions Israel committed to uphold. The Center mentions the International Convention for Civil and Political Rights, which protects the right of litigating parties to equality in civil legal proceedings. According to the Concord Center, the Sharia court’s interpretation violates this right, as it prevents one of the parties to the proceeding from exercising the litigating party’s right to choose the person who, pursuant to her discretion, will most efficiently represent her before the family council, while the other party benefits from the option of appointing such a person. According to the center, the said interpretation particularly violates women’s right to due process without discrimination. The disqualification of women to serve as arbitrators has negative implications for the status of women as litigating parties. Such disqualification signals to the litigating woman that her position is inferior to that of the man against whom she is litigating. Finally, the Concord Center argues that the Sharia court’s ruling excludes women in terms of public representation. Such exclusion is contrary to Israel’s commitment pursuant to Section 7(b) of the Convention on the Elimination of All Forms of Discrimination against Women, not to restrict women’s participation in the public arena.

 

Discussion and Decision – Intervening in the Judgment of Religious Courts

 

19.The religious courts, including Sharia courts, are independent judicial authorities with judicial jurisdiction in matters relating to personal status. As such, this court exercises narrow and limited judicial review to decisions of the religious courts, in accordance with that stated in Section 15 of Basic Law: The Judiciary:

 

15.       The Supreme Court

…

(c)        The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court.

(d)       Without limiting the general applicability of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be authorized –

…

(4) to order religious courts to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction; provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at its earliest opportunity; and if he had no reasonable opportunity to raise the question of jurisdiction until a decision had been given by a religious court, the Court may cancel a hearing that was held or a decision given by the religious court without authority.

…

 

It has been repeatedly said that this Court does not sit as an instance of appeal on decisions of the religious courts. As such, and in light of the authorities granted to them by law, defined causes of actions were prescribed for this Court’s intervention in decisions by religious courts (HCJ 2578/03, Pachmawi v. Pachmawi, para. 17 (May 8, 2006)). Among such causes of action is the cause of action of ultra vires – the cause of action of violating the rules of natural justice; and the cause of action enshrined in Section 15(c) of Basic Law: The Judiciary, regarding granting relief for the sake of justice (HCJ 11230/05, Muasi v. The Sharia Court of Appeals in Jerusalem, paragraph 7 (March 7, 2007) (hereinafter: the “Muasi Case”). These causes of action, and particularly the latter two, could include various matters from both sides of the coin of justice, violation of the rules of natural justice on the one hand, and relief that shall be granted for the sake of justice, on the other hand. As for this latter cause of action, it has been said:

 

“The latter cause of action for intervention – ‘for the sake of justice’ – is a blanket cause of action which can cover various different matters. The crux of all these matters is the need to grant relief for the sake of justice in the circumstances of a given case, and there is no necessary internal logical connection between them” (HCJ 5227/97, David v. The Great Rabbinical Court of Jerusalem, IsrSC 55(1) 453, 458-459 (1998)).

 

20.An additional cause of action justifying this Court’s intervention in the religious court’s decisions is the court’s deviation from the provisions of a law directed to it. The question whether this cause of action falls within the ultra vires cause of action prescribed in Section 15(d)(4) of Basic Law: The Judiciary, or rather within the cause of action justifying intervention to grant relief for the sake of justice, prescribed in Section 15(c) of Basic Law: The Judiciary, has been raised in the court’s rulings. The different classification of the causes of action implicates the determination of the scope of this Court’s intervention:

 

“This distinction between the causes of the High Court of Justice’s intervention according to the different alternatives of Section 15 of Basic Law: The Judiciary, could implicate the scope and extent of the High Court of Justice’s intervention in the relevant judicial act. If at hand is a court decision that is ultra vires since it did not follow all of the specific details of the civil partnership rule, such decision would generally be overturned. On the other hand, if the matter is classified as a case where relief must be granted for the sake of justice, then there is extensive discretion to examine the essence of the result reached by the court, from a perspective of justice, even if all of the specific details of the civil law required in the path chosen to obtain it, were not strictly implemented.” (HCJ 2222/99, Gabay v. The Great Rabbinical Court, IsrSC 54(5) 401, 426-427 (2000)).

 

In any event, the proper classification has yet to be ruled upon by courts, and it appears that we, too, are not required to rule on the matter.

 

The Matter Before Us

 

21.As emerging from the petition before us, the cause of action that merits our intervention in the Sharia court’s decisions is that relating to the religious court ignoring provisions of law directed to it. The relevant statutory provision here appears in Section 1A(a) of the Equal Rights for Women Act, which prescribes as follows:

 

“There shall be one law for a woman and a man for purposes of every legal act; any statutory provision which, for purposes of any legal act, discriminates against a woman because she is a woman shall not be followed.”

 

This statutory provision, which is also directed to the Sharia court, must be applied by the court, even if applying the religious law brings about different results:

 

“The actions of any court, which shall not act according to the law, shall be ultra vires. Because the Equal Rights for Women Act limited and restricted the authorities of the religious courts to act according to religious law, as they did before the Act’s legislation” (HCJ 187/54, Briya v. Qadi of the Muslim Sharia Court, Acre, IsrSC 9(2), 1193 (1955)).

 

Meaning, the religious court is not permitted to rule based on discriminating against the woman, at least as long as the exceptions to the application of the Equal Rights for Women Act do not apply, or as long as there is no other statute that trumps the provisions of the Equal Rights for Women Act (see HCJ 1000/92, Bavli v. The Great Rabbinical Court-Jerusalem, IsrSC 48(2), 221, 241 (1994) (hereinafter: the “Bavli Case”). It follows that should the Act apply to the case at hand, and the Sharia court reached a result that is contrary to this provision of the Law, and if there is no other law that implicitly overrides the provisions of the Equal Rights for Women Act, the petition is to be accepted and the decision of the Sharia court is to be overturned.

 

Therefore, first we shall have to examine whether the Act applies to Sharia court in the case before us, and whether the exceptions prescribed in it do not. To do so we must interpret the Act’s provisions, while elaborating on its fundamental principles and primarily on the principle of equality between the sexes. It is also necessary to elaborate on the essence of the Sharia court’s ruling in the matter before us. Should we find that the Act applies to the case at hand and that there is no other overriding statutory provision, it would be necessary to examine whether the Sharia court’s ruling violates it. Should the answer to this be in the affirmative, we shall examine the relief that should be granted to the Petitioner in this case.

 

The Principle of Equality Between the Sexes and the Equal Rights for Women Act

 

22.When the architects of the nation wrote the Declaration of Independence they promised to ensure “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. In doing so, they signed a bill for the benefit of the State, society and the women among it. A bill of promise of basic rights to life, liberty and equality. The State requested to honor the bill and in its early days legislated the Equal Rights for Women Act. The basis for the legislation of the Equal Rights for Women Act is, of course, the principle of equality between the sexes. The principle of equality constitutes one of the main foundations of our legal system and of the democratic rule, in general. The principle of equality is the soul of democracy. “Where there is no equality for a minority, there is also no democracy for the majority” (HCJ 6924/985, The Association for Civil Rights in Israel v. The Government of Israel, IsrSc 55(5) 15, 28 (2001) (hereinafter: the “Association for Civil Rights Case”)). This Court has emphasized the great importance of the principle of equality on many occasions, “setting its place in the center of the legal map and in the roots of all of the rules of law” (HCJ 6845/00, Niv v. The National Labor Court, IsrSc 56(6) 683 (2002) (hereinafter: the “Niv Case”); HCJ 2671/98, The Israel Women’s Network v. The Minister of Labor and Welfare, IsrSC 52(3) 630, 650-651 (1998) (hereinafter: the “Second Women’s Network Case”). Violating the principle of equality creates a double violation: both to the individual and to the public. Discrimination sends out a message of inferior status to the individual and to the discriminated group, and in doing so creates deep humiliation and violates the dignity of such individual or group (HCJ 4541/94, Miller v. The Minister of Defense, IsrSC 49(4) 94, 132 (1995) (hereinafter: the “Miller Case”); (HCJ 953/87, Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309, 332 (1988) (hereinafter: the “Poraz Case”). “Discrimination is an affliction that creates a sense of deprivation and frustration. It damages the sense of belonging and the positive motivation to participate in social life and contribute to it” (HCJ 104/87, Nevo v. The National Labor Court, IsrSC 44(4) 479, 760 (1990) (hereinafter: the “Nevo Case”). Equality is essential for society and for the social contract upon which it is built. Infringing the principle of equality means not only prejudicing the individual discriminated against or the group experiencing the discrimination, but also “derogating from the entire public interest, from the character of the society, the wellbeing of all those who comprise it” (HCJ 5755/08, Aren v. The Government of Israel, para. 4 of Justice E. E. Levy’s opinion (April 20, 2009) (hereinafter: the “Aren Case”)). It should be emphasized that the meaning of equality is, not relating differently to people who are not different in any relevant way. The existence of a relevant difference directly and concretely related to the purpose at hand, could, however, justify a permitted and legitimate distinction (the Miller Case, on pages 109-110; the Nevo Case, on page 754). It shall further be noted that the examination of discrimination is an objective examination which is not impacted by the existence or absence of the intent to discriminate (the Niv Case, on page 698; the Second Women’s Network Case, on page 654).

 

23.The principle of equality holds many meanings and various sub-principles. However, the core of the principle of equality, or as it is called “the principle of equality in the narrow sense”, includes a list of defined causes of action which are referred to as the classic causes of action of equality or the generic causes of action of equality. Among these causes of action is equality between the sexes. Violation of the principle of equality in the narrow sense in considered especially severe, and in many countries is even deemed a violation of a constitutional right (the Association of Civil Rights Case, on page 27). “Discrimination due to religion, race, nationality or sex is among the most severe forms of discrimination”, and “the prohibition of sex discrimination – the prohibition of discrimination against women – became one of the strongest leading principles of Israeli law” (the Niv Case, p. 683; 689). Sex discrimination is a form of discrimination with which many of the world’s countries are dealing, and which requires eradication of prejudices and perceptions that were common in human society as to the essence of the differences between the sexes:

 

“Confronting the problem of discrimination in general, and with regard to differences between the sexes in particular, is not only our concern. It concerns every free society where the principle of equality is one of its foundations. Discrimination derives from a perception that was grounded in human society as part of a perspective that for generations viewed the status of women as inferior and without rights. The granting of rights to women has developed step by step. It received impetus and strength in this century as part of the ideological and practical renaissance aimed at eradicating discrimination between people. This struggle to eradicate discrimination against women because of their sex is taking place in various arenas and with a range of weapons. It occupies a place of honor in literature, philosophy, articles, the media, political frameworks and various public arenas.” (the Miller Case, p. 122; see also Justice Dorner’s review there, p. 129).

 

24.The principle of equality, in general, and the principle of equality between the sexes, in particular, have both been recognized in the State of Israel, since the birth of the State of Israel. The declaration of independence establishes the new state’s commitment to maintain “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. Not long after the Basic Laws were enacted, the principle of equality was recognized as a constitutional principle that is encompassed within human dignity – in its narrow model – and therefore, is protected by Basic Law: Human Dignity and Liberty. The position that was voiced was that the equality that is constitutionally protected is that whose violation amounts to humiliation. Sex discrimination was recognized as humiliating discrimination, and therefore a violation of a constitutional right (the Miller Case, p. 110, 132). It shall be noted that today an interim model has been adopted in the rulings of this Court, whereby “discrimination that does not involve humiliation may also be included within the boundaries of human dignity, provided it is directly related to human dignity as an expression of personal autonomy, freedom of choice and freedom of action, and such other aspects of human dignity as a constitutional right” (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, para. 38 of President Barak’s opinion (2006); HCJ 4948/03, Elhanati v. The Minister of Finance, IsrSc 62(4) 406, para. 17 of Justice Hayut’s opinion (2008) (hereinafter: the “Elhanati Case”).

 

25.Israeli courts’ jurisprudence has, for many years, dealt with discrimination against women in various fields. The courts have constructed the roof beams upon the foundations laid by the legislature. Step by step, courts are taking strides towards eradicating discrimination against women, at least at the declarative and normative levels. The court applies the duty not to discriminate first and foremost to government authorities, “however since it derives from the fundamental principles of fairness and good faith that formulate any social contract and any jurisprudence that stem from them, the forms of the right to equality are not absent in the fields of private law” (the Elhanati Case, para. 17 of Justice Hayut’s opinion). Over the years, the legal system has played an important role in advancing the status of women in society and in realizing the aspiration towards an egalitarian society in which each individual has the opportunity for self-fulfillment, and realizing their capabilities, their desires and aspirations. The Court has not been deterred from intervening in and overturning decisions and actions that were afflicted by sex discrimination, in all walks of life, in a broad and varied list of matters: in the field of employment and wages (the Nevo Case; HCJ 1758/11, Goren v. Home Center (Do it Yourself) Ltd., (May 17, 2012); the Niv Case); in the matter of appropriate representation for women (the Aren Case; HCJ 5660/10, Itach-Women Lawyers for Social Justice Organization v. the Prime Minister of Israel, (August 22, 2010); HCJ 453/94, The Israel Women’s Network v. The Minister of Transportation, IsrSC 48(5) 501 (1994) (hereinafter: the “First Women’s Network Case”); the Second Women’s Network Case; NLC 33/3-25, Air Crew Flight Attendants Committee - Hazin, IsrLC 4 365 (1973)); in the military and security field (the Miller Case); in the family law field (developing the partnership presumption – see for example CA 1915/91, Yaacobi v. Yaacobi, IsrSC 49(3) 529 (1995); FC 4623/04, Anonymous v. Anonymous, IsrSC 62(3) 66 (2007); during pregnancy, birth and parenting (HCJ 11437/05, Kav Laoved v. The Ministry of Interior, (April 13, 2011)); and more. “The equal status of women within the principle of equality is not solely formal and it must span over all the arenas of our life in a practical and real way” (the Poraz Case, p. 342). The meaning of all of the above is that we hear the sounds of equality but still do not see it in full. There are still things to be done, improved and advanced, and the Court has an important and significant role in this matter.

 

One of the sensitive fields in which the court must deal with discrimination against women is that field which directly or indirectly relates to matters of religious law, religion and state. Indeed, the Court has, on more than one occasion, addressed the principle that prohibits discrimination against women because of their sex, in this field as well, and has overturned decisions afflicted by such discrimination. Thus, this Court intervened in the matter of training and appointing female rabbinical pleaders when it appeared that the relevant institutions were attempting to make it difficult for them in order to prevent such positions from being performed by women (HCJ 6300/93, “Hamachon Lehachsharat Toanot Beit Din” v. The Minister of Religious Affairs, IsrSC 48(4) 441 (1994) (hereinafter: the “Rabbinical Pleaders Case”); thus, a petition to order that the female petitioner be added to the Religious Council in Yerucham, after such candidate was disqualified merely because she was a woman, was accepted (HCJ 153/87, Shakdiel v. The Minister of Religious Affairs, IsrSC 42(2) 221 (1988) (hereinafter: the “Shakdiel Case”); and thus it was ruled that a local authority is not permitted to avoid selecting a woman as a representative to the meeting electing a city Rabbi, merely because she was a woman (the Poraz Case).

 

26.However, this is a field in which discrimination against women at the declarative and principle level, too, still remains. This is partly protected by legislation, and the Court must maneuver its way in a manner that respects the legislator’s decisions, but with maximum commitment to the basic principle and constitutional right of equality for women. This is particularly true when at hand are public and state institutions whose services are required by the entire public who cannot avoid such institutions’ services. The perspective regarding discrimination against women shall be different for a member of a community that chooses to belong to it and to accept its rules and the rulings of its institutions, than for a public institution which the public cannot choose whether or not to need its services (see Ruth Haplerin-Kaddari, More on Legal Pluralism in Israel, 23 559, 570 (5760)). It is clear that as every right, the right to equality between the sexes is also not absolute and at times requires balancing with additional interests and rights. However, a violation of equality between the sexes shall have to comply with the tests of the Limitation Clause prescribed in Basic Law: Human Dignity and Liberty (HCJ 11163/03, Vaadat Hamaakav Haelyona Leinyanei Haaravim Beyisrael v. the Prime Minister of Israel, IsrSC 61(1) 1, para. 22 of President Barak’s opinion (2006); the Miller Case, p. 138).

 

27.When we focus on religious courts, the difficulty is exacerbated, since discrimination is inherent to these institutions’ system. This is primarily because only men are being appointed to judicial positions, the appointment to which is allegedly protected by the Act, as we shall see below. Additionally, repeated arguments are heard that the religious law itself often creates discrimination against women, and that at the very least, in terms of results, there is often some kind of propensity against women in these institutions (see for example, Frances Raday, Religion and Equality: Through the Perspective of Jurisprudence, 341, 381, 386 (Vol B, 5760); Frances Raday, On Equality, 19 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995); Shirin Batshon, (Kayan Organization, 2012); Aharon Layish, The Status of the Muslim Women in the Sharia Court in Israel, 364 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995) (hereinafter: Layish); Pinchas Shipman, Rabbinical Courts: Where Are They Heading, 2 523 (5755); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gap between Them: Response to Yechiel Kaplan and Ronen Perry, 28 871, 875, 890 (5765)). It shall be emphasized that it is important to maintain the sense of equality and egalitarian results particularly in these institutions, which deal with most sensitive matters of family law, and already often reflect a struggle between the sexes. In any event, the principle of equality also applies in religious courts, subject to the exceptions that were prescribed in the Act (the Shakdiel Case, on page 278). Hence, the role of the state and the government systems, with the support and intervention of this court, is to try, to the extent possible, to balance the said picture, so that women who require the services of these institutions feel they are equal and that they receive the same treatment given to men. For example, one can encourage the appointment of candidates to judicial positions, who besides their professional skills, are supported by women’s organizations (see my remark in HCJ 8756/07, Amutat “Mavoi Satum” v. The Committee for the Appointment of Religious Judges (June 3, 2008)); additionally, one can promote the appointment of women to managerial and administrative positions in the religious courts themselves (see HCJ 151/11, The Ruth and Emanuel Rackman Center for the Advancement of Women's Status v. The Ministry of Justice, (December 27, 2011)); one can also enable and encourage women to fill various positions in religious courts that do not represent the court itself, such as was done with respect to female Rabbinical pleaders in the Rabbinical Courts (the Rabbinical Pleaders Case). This is also the point of departure when examining the appointment of female arbitrators in Sharia courts. Having said that, we must examine the matter in light of the provisions of the Equal Rights for Women Act.

 

The Equal Rights for Women Act, Its Exceptions and Interpretation

 

28.Along with the work done by case law in advancing equality between the sexes, the legislature did not stand still either. Over the years, commencing from shortly after the establishment of the State and until this very day, statutes have been legislated with the purpose of protecting women from sex discrimination. First on the list of these laws is the Equal Rights for Women Act, which was legislated in as early as 1951, and which we discuss in further depth below. Additionally, the Authority for the Advancement of the Status of Women Act, 5758-1998, and the Local Authorities (Advisor for the Advancement of the Status of Women) Act, 5760-2000, were legislated with the general purpose of advancing equality between men and women in Israel. In the area of employment the following statutes and provisions were legislated: section 42(a) of the Employment Service Law, 5719-1959; the Equal Employment Opportunity Act, 5748-1988; the Equal Pay for Female and Male Employees Act, 5724-1964, which was replaced by the Equal Pay for Female and Male Employees Act, 5766-1996; and the Encouragement of Advancement and Integration of Women in the Workforce and the Adjustment of Workplaces for Women Act, 5768-2008. The Women’s Employment Act, 5714-1954, which was intended to protect women in the workplace was also legislated. Sections intended to obtain appropriate representation of women in various institutions and bodies were also legislated (see Section 18A of the Government Companies Act, 5735-1975; Section 4(b) of the Senior Citizens Act, 5750-1989; Sections 8(b)(3) and 16(c) of the National Laboratories Accreditation Authority Act, 5757-1997; Section 63(a)(3) of the Sewage and Water Corporations Act, 5761-2001; Section 15A of the State Service (Appointments) Act, 5719-1959; Section 11(d) of the National Battle Against Road Accidents Act, 5757-1997; see also the Niv Case, on page 686; the Second Women's Network Case, on pages 652-654). One of the long-standing and general statutes in this matter is the Equal Rights for Women Act, which stands at the heart of this petition, and on which we shall now focus.

 

29.As stated, the Equal Rights for Women Act was legislated in as early as 1951, and its purpose was to maintain “complete and full equality for women – equality in rights and obligations, in the life of the state, society and market and in the entire network of laws” (see the Equal Rights for Women Bill, 5711-1951, on page 191). The Act was recognized by this Court as having a special status, superior to ordinary laws. As such, it was referred to by President Barak as a “royal” law (the Bavli Case, p. 240), and Justice Zilberg emphasized that “this law is not like another ordinary law! This is an ideological, revolutionary law that changes social order” (HCJ 202/57 Sides v. The President and Members of the Great Rabbinical Court, Jerusalem, IsrSc 12 1528, 1537 (1958)). The Law is directed at all of the government authorities as well as all of the judicial instances, and religious courts were explicitly obligated to act accordingly (see Section 7 of the Act and the Bavli Case, p. 240). In 2000, a purpose statement was added in the following section:

 

1.Purpose of the Act

The purpose of this Act is to set principles for the assurance of full equality between women and men, in the spirit of the principles of the Declaration of Independence of the State of Israel.

 

It shall be noted that within that same amendment from the year 2000 the exception provided in Section 7(c), upon which we shall elaborate further below, was also added (see Equal Rights for Women (Amendment no. 2) Act, 5760-2000). The Act’s center of gravity, in my opinion, is located in the general and broad provision anchored in Section 1A of the Act, pursuant to which “There shall be one law for a woman and a man for the purposes of every legal act.” This section has been interpreted broadly as anchoring women’s right to equality not only regarding any legal act, but also regarding any legal aspect whatsoever (see Civil Appeal 337/61, Lubinski v. The Assessment Officer, Tel Aviv, IsrSC 16 403, 406 (1962); the First Women’s Network Case, p. 522, the Poraz Case, p. 335). It is further important to emphasize that this is a declaratory and descriptive statue rather than one that is constitutive, since the principle of equality between the sexes existed before the Act was legislated (see the Niv Case, p. 686). An interesting question then follows – what will the impact of the principle of equality on the matter be should we determine that the Equal Rights for Women Act does not apply to the case at hand (see the Shakdiel Case, p. 277). In any event, as we shall see below, we need not rule on this issue here. However, I find it appropriate below to add a few words on it.

 

30.The Equal Rights for Women Act applies broadly. Section 7(a) provides that every governmental authority is obligated to honor the rights detailed in the Act. Section 7(b) expands this application to all courts and tribunals competent to address matters of personal status as well, unless all parties agree to litigate according to the laws of their community. However the law establishes two central exceptions to its applicability, both of which relate to religious courts. Section 5 of the Act provides that “this Act shall not infringe any legal prohibition or permission in connection with marriage and divorce”. Section 7(c), which, as mentioned, was added to the Act in the legislative amendment of 2000, provides that:

 

The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

31.In light of the Act’s objective, its unique status and the principles upon which it relies, it is my opinion that the Act should be interpreted broadly while the exceptions provided in the Act should be interpreted narrowly. This approach follows this Court’s jurisprudence that legislation that violates basic human rights should be interpreted narrowly, based on the assumption that the Act’s provisions are not intended to violate the principle of equality (the Miller Case, p. 139; the Nevo Case, p. 763; the Shakdiel Case, p. 273; the Poraz Case, p. 322). This is all the more relevant when the principle of equality under the Equal Rights for Women Act is concerned:

 

“In this case even more weight should tip the scale in favor of the Equal Rights for Women Act. This law reflects an important and central value, a principle that formulates life in our state as a civilized state. The Equal Rights for Women Act declares a value that should encompass our entire legal system. Therefore, as long as nothing explicitly contradicts this law, an interpretation that corresponds with the principle of equality between the sexes should be preferred” (the Nevo Case, p. 764).

 

This approach certainly corresponds with the general objective of the Act, as is explicitly provided in Section 1 of the Act, which addresses securing full equality between men and women, explicitly provides. It is appropriate in a democratic state that honors human rights, in general, and equality between the sexes, in particular, and is all the more relevant when an interpretation relating to state and public institutions that serve the entire public is concerned. This approach also addresses the need to interpret the provisions of the Act in light of the spirit of Basic Law: Human Dignity and Liberty, which protects women from discrimination (see the Miller Case, p. 138).

 

32.The exceptions that are relevant to the case at hand appear, as mentioned, in Section 5 and Section 7(c) of the Equal Rights for Women Act. Pursuant to Section 5 of the Act we must examine whether the appointment of a female arbitrator according to Section 130 of the Family Law violates laws permitting or prohibiting marriage or divorce in Muslim law. Pursuant to Section 7(c) of the Act, we must examine whether the appointment of arbitrators is an appointment to a religious position according to religious law or an appointment to a judicial position in a religious court. In order to examine whether or not the case before us falls under the said exceptions, we must first elaborate on the legislative framework in Sharia law that applies to the matter at hand and understand its essence.

 

Arbitrators in Sharia Law and Section 130 of the Family Law

 

33.Before turning to understanding the matter that was presented to the Sharia Court, I shall state in general that the authority of the Sharia courts stems from Section 52 of the King’s Order in Council that grants Sharia courts exclusive jurisdiction to address matters of personal status of Muslim Israeli citizens. The matters of personal status also include matters of marriage and divorce pursuant to Section 7 of the Act of Procedure of the Muslim Religious Courts 1933 (see S. D. Goitein and A. Ben Shemesh The Muslim Law in the State of Israel 42, 276 (1957) (hereinafter: “Goitein and Ben Shemesh”)). It shall be noted that the Family Matters Court Act, 5755-1995, was amended in 2001 to grant parallel jurisdiction to the family matters courts to address personal status matters of Muslims, except matters of marriage and divorce (see HCJ 2621/11, Anonymous v. The Sharia Court of Appeals in Jerusalem, para. 13 (December 27, 2011)). The matter before us, which addresses the divorce of a couple, is, indeed, still in the exclusive jurisdiction of the Sharia court.

 

34.The law that applies to this case is the Ottoman Family Law. The Family Law was legislated by the Ottoman regime and its purpose was to regulate the family laws that would apply to all citizens regardless of their religion. In 1919, the British Mandate adopted the law in the framework of the Muslim Family Law Ordinance, but limited its applicability to Muslims only. The statute’s provisions address matters of marriage and divorce, and the drafters of the law adopted various laws from various schools of Muslim thought – the Hanafi, the Shafi, the Maliki and the Hanbali – in an attempt to choose the rules most appropriate for the twentieth century (Goitein and Ben Shemesh, p. 213; Layish, p. 371).

 

35.The parties before us disagree on whether the Family Law is a religious or civil law. The Family Law was legislated by the Ottoman legislature and was even intended to apply to all citizens of different religions, allegedly indicating that the law is “civil”. The Family Law does not adopt each and every rule of the Quran. For example, there are forms of termination of marriage which appear in the Quran and which were not expressed in the Family Law (see Goitein and Ben Shemesh, p. 139). The Ottoman legislature even took the liberty to select various rules from different schools of thought in Muslim law, as a sign of the times, as it deemed fit. However, the Ottoman legislature did not create rules out of nowhere, but rather, even if in a mixed manner and as per its civil discretion, anchored rules from the various schools of thought which are ultimately based on the Sharia and the Quran (see Iyad Zahalka, The Identity of the Sharia Courts in Israel, in 75 (edited by Liat Kozma, 2011)). It follows that I am willing to assume that the Family Law is a law that is religious in its essence (however, see Moussa Abu Ramadan, The Status of the Ottoman Family Law” in 49 (edited by Liat Kozma, 2011) (hereinafter: “Abu Ramadan”).

 

36.The section the Sharia court applied in this case is Section 130 of the Family Law, which reads as follows, as translated by Goitein and Ben Shemesh:

 

“If arguments and disagreements erupt between a couple, and one of them approached a judge, the judge shall appoint two arbitrators from the couple’s families and if arbitrators from among the relatives are not found or do not have the required characteristics, the judge shall appoint appropriate arbitrators not from among the relatives. A family panel of such composition shall listen to the parties’ complaints and arguments and shall try, to the best of its ability, to reconcile them. If this is not possible because of the husband, they shall rule that the marriage be untied, and if because of the wife, they shall also revoke her right to the entire dowry or a portion thereof. If the arbitrators cannot agree among themselves, the judge shall appoint appropriate arbitrators in a different composition, or a third arbitrator not from among the relatives. The decision of such persons shall be final and non-appealable.”

 

The section anchors an additional way of dissolving the marriage in the event that disputes emerge between the couple. Each one of the couple may demand that a family “panel” or “council” be established and that it shall be comprised of one representative from the husband’s family and one representative from the wife’s family. The council must attempt to reconcile the couple, but if they do not succeed, they must rule to untie the marriage and determine the scope of the dowry to be paid (the Muasi Case, para. 9). If the first arbitrators that were appointed do not agree among themselves, additional arbitrators must be appointed or a third arbitrator must be appointed to decide (HCJ 9347/99, Hamza v. The Sharia Court of Appeals in Jerusalem, IsrSC 55(2) 592, 597 (2001) (hereinafter: the “Hamza Case”).

 

37.The different schools of thought in Sharia law viewed the role of arbitrators differently. As the Sharia court stated in its decision here, the Maliki school of thought allows arbitrators to dissolve the marriage themselves without the involvement of the Qadi, and they serve as a kind of Qadi themselves. According to this school of thought, the arbitrators must be male adults. In contrast, the Hanafi school of thought, along with other schools of thought, views the arbitrators as representatives of the parties, and therefore there is nothing preventing the Qadi from intervening in their decision. According to these schools of thought, a woman can be appointed as an arbitrator (see also Moussa Abou Ramadan, Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003), 13, 2 / (2006) (hereinafter: Abou Ramadan); Abu Ramadan, p. 61).

 

38.The matter of interpretating Section 130 of the Family Law was already brought before this Court in the Hamza Case, which addressed how to interpret the end of the section that “the decision of these people shall be final and is non-appealable.” This Court interpreted the section to mean that after the arbitrators completed their role, the matter is handed to the Sharia court to make its decision, and it has the discretion whether or not to adopt the arbitrators decision:

 

“It is my opinion that the proper interpretation of the sentence in dispute is that the finality mentioned therein means that from that stage, the matter is transferred to the decision of the Sharia court that appointed the arbitrators. At this stage, the arbitrators have completed their role, and the Sharia court is to have its say. The sentence uses the phrase “the decision of these people.” “These people”: the arbitrators, and the finality means that their decision is final, in the sense that their decision is the last decision to be given in by arbitrators before the Sharia court has its say. The arbitration proceeding pursuant to Section 130 has been exhausted and from this stage the Sharia court must rule in the dispute with the arbitrators’ decision before it. This does not mean that the Sharia court cannot return the matter to the arbitrators. But as of this stage, the arbitrators have completed their work, the decision is “final”, and the matter is transferred to the Sharia court for it to reach a decision.

This interpretation accords with the fact that in order for a separation between the couple to be valid, a Sharia court judgment is required. The arbitrators’ decision in and of itself does not dissolve the marriage. Only once a judgment by the court is handed down can the divorce be registered under the law (Section 131 of the law). It is unreasonable to interpret the sentence in dispute such that even though the court must issue a judgment, it does not have the discretion whether or not to accept the arbitrators’ decision. Only an explicit statement that the Sharia court is bound by the arbitrators’ decision and has denied the authority to rule in the matter, could bring about such an extreme result. Therefore the correct interpretation is that the arbitrators’ decision is final, on the arbitration level, but does not derogate from the regional Sharia court’s authority to consider the merits of the arbitrators’ decision and decide whether or not to adopt it” (the Hamza Case, p. 598).

 

According to this interpretation, the final authority to confirm a divorce judgment is granted to the Sharia court. The arbitrators’ decision itself does not dissolve the marriage, and the Sharia court must exercise its discretion and decide whether to adopt the arbitrators’ decision, reject it or accept it in part. The parties may raise arguments against the arbitrators’ decision before the Sharia court and the Sharia court has the authority to accept such or other arguments. It is the one that makes the final ruling in the dispute before it. It shall be noted that in its ruling, the Court also relied on the customary practice in Sharia courts, whereby the Sharia courts have consistently ruled that they have the authority to intervene in the arbitrators’ decision:

 

“One can see that the Sharia court intervenes in the arbitrators’ conclusion when it finds that it does not accord with the facts of the case or is not based on sufficiently solid evidence. It can further be seen that in certain circumstances the court sends the case back to the arbitration level. Meaning, it also emerges from the customary practice that the court has the authority to intervene in the arbitrators’ decision, and that this is how the sentence that is in dispute is interpreted." (The Hamza Case, p. 600).

 

This case law has indeed since been implemented by this Court (the Muasi Case).

 

 

 

Applying the Exceptions of the Equal Rights for Women Act on the Appointment of Arbitrators

 

39.After elaborating on the Equal Rights for Women Act, its purpose and the manner it is interpreted, as well as on the essence of the matter before us, it is now time to examine whether the exceptions in the Act apply to the appointment of arbitrators under Section 130 of the Family Law. The first exception is that in Section 5 of the Act whereby “this Act shall not infringe any legal prohibition and permission in connection with marriage and divorce.” In this matter I agree with the Attorney General’s position that this section was intended to apply to the content of the religious law itself that regulates the matters of divorce and not to the laws that apply to the persons having the authority to implement such laws. This explicitly emerges from the language of the section that deals with the prohibition and permission laws.

 

Furthermore, as mentioned, in my opinion the exceptions in the Act should be interpreted narrowly and thus the interpretation which relates only to the content of religious law, as implied by the language of the section itself, must be preferred. Section 7(c) of the Act also supports this interpretation, since it addresses the persons holding the positions that implement the religious law. The logical conclusion is that Section 5 does not address those in these positions. However, I shall leave instances where a certain appointment in and of itself results in violating laws prohibiting and permitting marriage or divorce for future consideration. In the case of the appointment of arbitrators, at hand is an appointment to a position that exercises authorities related to divorce and not to the actual law that regulates divorce. Additionally, as we saw, there are schools of thought in Sharia law which allow women to be appointed as arbitrators. So the question left for future consideration does not arise. Hence, the conclusion is that the exception in Section 5 does not apply to the case at hand.

 

40.The main exception on which the litigating parties focused, is in Section 7(c) of the Equal Rights for Women Act, and in light of its importance I found it appropriate to restate it here as well:

 

(c)        The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

The section effectively includes two exceptions, and we must explore the application of both here. The first addresses the “appointment to a religious position under religious law,” and the second addresses the “appointment of holders of judicial positions in religious courts.” On its face, according to the Act’s language the second exception is encompassed by the first exception, but we shall examine each exception separately.

 

41.Is the appointment of arbitrators an appointment to a religious position under religious law? As mentioned, I am willing to assume that the Family Law is a religious law and therefore the end part of the exception applies. This assumption is not free of challenges, because this Act was legislated by a civil legislature and was absorbed into our general system of laws (see Abu Ramadan). However, we shall leave this assumption in place, since in any event I am of the opinion that one cannot say we are concerned with a religious position. The legislature did not exclude any appointment to a position under religious law, but rather only the appointment to a religious position under religious law. This distinction by the legislature is significant. I find much logic in this distinction. There can be an appointment to an administrative position under religious law. Why should such an appointment be excluded from the provisions of the Act? I believe that the expression “religious position” must be interpreted as a position in which some level of professionalism and expertise in religious law and the exercise of such law in the course of the position are required (see the Shakdiel case, p. 274: “Indeed, there is nothing in the Religious Services Act that indicates that only religious and legal scholars should serve on religious councils, and in principle even a non-religious person is qualified to serve on the council”). The more professionalism and expertise in religious law are required for the position and the more religious law is actually exercised in the course of the position, the more we will tend to perceive the position as a religious position, and vice versa.

 

The appointment of arbitrators pursuant to Section 130 of the Family Law does not meet such definition at all. The arbitrators, as we have seen, are representatives of the disputing couple’s relatives. They are not required to have any familiarity with religious law, skills, understanding or qualification in this law. They have no professionalism or expertise in exercising the religious law. Even according to the Maliki school of thought, the characteristics are unrelated to the religious matter (for example, it is required that the arbitrators be fair, mature, adult persons who are not slaves, are not corrupt, are not wastrels and are not atheists. It is preferable that they be relatives or neighbors and in any event that they be aware of the problems between the parties. See Abou Ramadan, p. 264-265). Furthermore, the arbitrators are not required to implement religious law in the course of their position. All they are required to do is act according the provisions of the section – to try to reconcile the couple, and when unable to do so, they must rule a divorce while determining which party is at fault, and accordingly, the scope of the dowry. Once they encounter any problem they must turn to the Sharia court for instructions (see the Muasi Case, paragraph 13).

 

The conclusion is, therefore, that the appointment of the arbitrators is not a religious appointment under religious law, and therefore is not included in this exception.

 

42.Is the appointment of arbitrators an appointment to a judicial position in a religious court? I believe that the answer to this question is also in the negative. On its face, it appears that the section’s interpretation must be limited only to holders of judicial positions in actual religious courts, such as rabbinical judges or Qadis. However, even were we to assume that the exception should be interpreted more broadly, it would not cover the appointment of arbitrators pursuant to Section 130 of the Family Law. As mentioned, in the Hamza Case the Court held that the arbitrators’ decision is not final and is subject to the Sharia court’s absolute discretion. In practice, Sharia courts intervene in the arbitrators’ rulings (see Abu Ramadan, p. 61). It follows that even pursuant to Section 130 of the Family Law the judicial position to rule the divorce is granted to the Qadis in Sharia courts, and not to arbitrators. While arbitrators are important auxiliary tools for Qadis in ruling in the dispute between the couple, they do not make the final decision and they have no authority to divorce the couple without receiving material confirmation from the Sharia court of such decision. The conclusion is that arbitrators cannot be perceived as holding any judicial position whatsoever. It shall be further noted that contrary to holders of a judicial position, arbitrators are not an objective party in the dispute, but rather an involved party, that is generally appointed from among the relatives and as per the desire of the parties in dispute, and therefore, their position cannot be perceived as a judicial position.

 

Hence, Section 7(c) does not apply to the appointment of arbitrators pursuant to Section 130 of the Family Law.

 

43.It emerges from the above analysis that the exceptions provided in the Equal Rights for Women Act do not apply to the case at hand. It follows that the Sharia court should have ruled in this case according to the provisions of the Act that there shall be one law for a woman and a man. The parties before us did not, in fact, dispute the fact that the ruling of the Sharia court was contrary to this provision. None of the parties even raised an argument that there are contrary or conflicting interests in the matter. In my opinion it cannot be said that Section 130 of the Family Law intended for the provisions of the Equal Rights for Women Act not to apply. First of all, the Equal Rights for Women Act was legislated after the Family Law. Secondly, there is not even a hint in the section implying the intention of the law not to allow the appointment of female arbitrators. Furthermore, the purpose of the section supports the appointment of female arbitrators according to the parties’ desire. The arbitrators are meant to represent the parties. They are meant to try to reconcile the couple, and if this is unsuccessful, to determine fault in the dissolution of the couple’s relationship. As such, it is proper to allow the couple to choose an arbitrator who shall be acceptable to them and with whom they are comfortable. Indeed, the Sharia court, as occurred in the case at hand, approaches the couple and allows them to choose an arbitrator on their behalf who shall be approved by the court. Since we are concerned with a dispute between a couple, in a system that is generally patriarchal, it should not come as a surprise that a woman would, at times, prefer to appoint a woman, rather than a man, as arbitrator on her behalf (and of course the man may as well). Perhaps by appointing someone who is acceptable to each of the parties and with whom they are comfortable, the chances of reconciling the couple increase. Similarly, maybe the chances of reaching the correct decision regarding each party’s fault in the dissolution of the relationship and the scope of the dowry would also increase. It follows that the objective of the section also indicates the need to allow a female arbitrator to be appointed.

 

The conclusion that emerges from all of the stated above is that the decision by the Sharia court is to be overturned as it ignored the provisions of the Equal Rights for Women Act. Before I turn to examine the relief, I would like to add one additional remark beyond the necessary scope here.

 

44.It is possible that we would have reached the same result even had we assumed that the Equal Rights for Women Act does not apply to this case. Religious courts, as all judicial tribunals and government authorities, are subject to the fundamental principles of the system, including the principle of equality, which has been consistently implemented in the rulings of this Court. As I mentioned, the principle of equality between the sexes was not born of the Equal Rights for Women Act, but rather only received practical and declarative grounding. Therefore, religious law must also be exercised while taking the fundamental principles of the system, in general, and the principle of equality, in particular, into consideration, to the extent possible within the limitations of the religious law itself. As President Barak stated “There is equality in the application of the principle of equality” (the Shakdiel Case, p. 278; see also the Bavli Case, p. 248). Thus, Basic Law: Human Dignity and Liberty provides that “All governmental authorities are bound to respect the rights under this Basic Law” (Section 11). In my opinion, the implication of this provision is that if there is a customary school of thought in the religious law that conforms to the principle of equality, the religious court must prefer it over a different school of thought in the religious law that does not conform to such principle.

 

45.As I specified above, there are a number of customary schools of thought in Sharia law which religious courts as well as the Ottoman legislature applied in a mixed fashion, without any absolute commitment to one school of thought or another (see also Goitein and Ben Shemesh, p. 24). Indeed, part of the Family Law is based on the Maliki school of thought that only allows appointment of male arbitrators. However, there is also the Hanafi school of thought which is customary in the Muslim world and upon which the Mejelle is based (Goitein and Ben Shemesh, p. 4). Even most of the Family Law is based upon it (Iyad Zahalka 115 (2009)). It allows the appointment of female arbitrators (and it shall be noted that it also allows the appointment of female Qadis). In my opinion, given the principle of equality, the court should have preferred the school of thought that fits this principle over the school of thought that denies it. Especially given that in fact the Sharia courts actually conduct themselves in a manner similar to the Hanafi school of thought, since they do not relate to the arbitrators’ decision as final, but rather exercise their discretion whether or not to confirm it.

 

46.It shall be further emphasized that I do not accept the argument that should it be decided to appoint a female arbitrator similar to the Hanafi school of thought, the Sharia court will have to also adopt the causes of action for divorce of such school of thought, which are more stringent against the wife (see Goitein and Ben Shemesh, p. 141). First of all, as mentioned, the law combines laws from different schools of thought, and therefore there is nothing preventing the appointment of arbitrators under the Hanafi school of thought, meaning allowing a female arbitrator, while the causes of action of divorce shall be determined under the Maliki school of thought, which is more friendly toward women, as has been done so far. The causes of action of divorce have nothing to do with the characteristics of the arbitrators. Secondly, the causes of action of divorce have already been grounded in the Family Law, and it is impossible to derogate from those that are grounded in the law and are customary today as per the rulings of the Sharia court (see CrimAppeal 353 Al-Fakir v. the Attorney General, PD 18(4) 200, 221 (1964)).

 

Summary and Relief

 

47.As we have seen, the exceptions of the Equal Rights for Women Act specified in Sections 5 and 7(c) of the Act, do not apply to the appointment of arbitrators under the Family Law. It follows that the Sharia court should have taken the provisions of the Act into consideration and it failed to do so. Taking the provisions of the Equal Rights for Women Act into consideration would have led to the result that it is possible to appoint female arbitrators, and in turn to the approval of the arbitrator suggested by the Petitioner. The conclusion that follows is that the Sharia court’s decision is overturned. The case shall be remanded to the Sharia court for the arbitration process to continue, while granting the Petitioner the option to choose a female arbitrator on her behalf. Hopefully this may open a window to equality and prevent discrimination among officers in this field.

 

Should my opinion be heard, the petition would be accepted. The Respondent would pay the Petitioner’s costs in the amount of NIS 15,000.

 

 

 

Justice

 

 

Justice M. Naor

 

1.I agree with my colleague, Justice Arbel’s extensive judgment.

 

2.At the basis of the Sharia Court of Appeals’ reasoned decision is the approach that arbitrators are Qadis. The Sharia court summarized its approach in Section 12 of the reasoned judgment dated June 18, 2012, as follows:

 

“12.     In summary, arbitrators pursuant to Section 130 of the law are Qadis and not representatives, and the judgment regarding the dissolution of a marriage is in their hands, and the Qadi's authority is to confirm their judgment. As for the monetary rights, the dowry resulting from the dissolution, the Qadi has the authority to alter the judgment of the arbitration panel and rule that the wife receive the entire dowry in the absence of a Sharia cause of action to reduce it, and the sole purpose is to prevent prolonged litigation” (my emphasis – M.N.)

 

3.Accepting this approach that the judgment regarding the dissolution of the marriage is in the hands of the arbitrators and that the Qadis’ authority is solely to confirm the arbitrators’ ruling, could, in other cases, lead to severe results. Where Qadis conclude the facts of the case do not justify the arbitrators’ ruling that the marriage is to be dissolved, are the hands of Qadis – who were authorized by the law of the State to judge – indeed tied by arbitrators’ final judgment regarding the dissolution of a marriage? This is hard to accept. This is an approach that takes judging out of the hands of those who were appointed to judge – the Qadis. As my colleague noted, this is inconsistent with the rulings of this Court in HCJ 9347/99, Hamza v. the Sharia Court of Appeals in Jerusalem, IsrSC 55(2), 592 (2001) and in HCJ, Muasi v. The Sharia Court of Appeals in Jerusalem (March 7, 2007).

 

 

 

Deputy President

 

 

 

 

 

Justice N. Solberg

 

I agree.

 

Justice

 

 

It was decided as per Justice E. Arbel’s judgment.

 

Given today, the 19^th of Tamuz, 5773 (June 27, 2013).

 

 

Deputy President                                Justice                                     Justice

 

 

In the Supreme Court

Sitting As the High Court of Justice                                             HCJ 8638/03

 

Before:	His Honor, Vice President (Ret.) M. Cheshin Her Honor, Justice A. Procaccia His Honor, Justice S. Joubran
The Petitioner:	Sima Amir
v.
The Respondents:	1. The Great Rabbinical Court in Jerusalem
	2. The Regional Rabbinical Court in Jerusalem
	3. Yoseph Amir
On Behalf of the Petitioner:	Adv. Michael Korinaldi
On Behalf of the Third Respondent:	Adv. Nechama Segal
On Behalf Of the Rabbinical Courts System:	Adv. S. Jacoby

 

JUDGEMENT

 

Justice A. Procaccia

 

1.         This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

2.         The petition concerns the petitioner's motion to vacate the decisions of the Great Rabbinical Court in Jerusalem – the first respondent – of May 4 and June 9, 2003, which dismissed the petitioner's appeal against the judgment of the Regional Rabbinical Court of Jerusalem – the second respondent – of May 27, 2002, and its decisions of March 5, 2001 and June 18, 2002.

 

Background and Proceedings

 

3.         The petitioner and the third respondent (hereinafter: “the respondent") were married in 1980 and have three children. Their relationship became unstable and they motioned the Regional Rabbinical Court of Jerusalem in 1992 in order to arrange for divorce proceedings. As part of that proceeding, the couple requested the Regional Rabbinical Court to approve a divorce agreement that they had made. In the agreement, the couple agreed on the act of divorce, the custody and support of the children, and various financial and property arrangements, as follows: the three children would be in the custody of the wife until reaching the age of 18 (clause 3); the husband would pay child support in the sum of NIS 1,000 per month for all three of the children until they reach the age of 18; the sum of the child support as set in the agreement would not be increased, and in exchange, the husband would transfer his share of the couple’s apartment to the wife, including his share of the apartment’s contents and the gold objects, ownership of which would all be transferred to the wife (clauses 4(a) and (b)); the husband also undertook to discharge the balance of the mortgage loan each month (clause 6(c)). The agreement also included a condition whereby the wife undertook not to sue the husband in any court for an increase in child support, either directly or indirectly, and if the husband were sued, the wife would compensate him in such a way that he would receive half of the apartment, half of its contents and half of the gold (clauses 4 and 5 the agreement). Taking out a stay of exit order inhibiting the husband's departure from the country would also be deemed a breach of the agreement and lead to the same result (clause 13). In order to secure the wife's obligation in accordance with the agreement, a cautionary note would be registered against the apartment, pursuant whereto one half of the apartment would be transferred into the husband's name if he were sued to increase child support. The relevant provisions of the agreement are as follows:

 

                        "4.       Child Support

 

                                    (e)       For the avoidance of doubt and without prejudice to the generality of the aforegoing, child support under the agreement shall unequivocally cover all the children's needs without exception… until the children reach the age of 18.

 

                                    The mother undertakes not to sue the father in any legal instance for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest), and if the husband is sued, the wife shall compensate him and he shall receive one half of the apartment, one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    …

 

                        5.         Indemnification

 

                                    (a)       The mother undertakes and takes it upon herself not to sue the father in any legal instance whatsoever for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest).

 

                                    (b)       If, contrary to the abovementioned, the father is sued for an increase in child support and/or satisfaction of any of the children's needs, whether the lawsuit is brought by the mother and/or the mother in the name of the children or by an entity, authority, institution and/or anyone who now and/or in future has an interest, beyond what the father has undertaken in this agreement, then the mother undertakes to transfer one half of the apartment into the father's name and one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    (c)       To secure the wife's obligations in this agreement, a cautionary note shall be registered, pursuant whereto one half of the apartment shall be transferred into the husband's name if the husband is sued to increase child support…"

 

            The agreement also includes a provision with regard to the exclusivity of the Rabbinical Court's jurisdiction in the event of a dispute between them after the divorce, in the following terms:

 

                        "9.       Cancellation of Mutual Claims And/or Complaints

 

                        …

 

                        10.       …

 

                        11.       If after the divorce, differences arise between the couple, they undertake to file the lawsuit solely in the Rabbinical Courts.

 

                        12.       …

 

                        13.       The wife undertakes not to take out a stay of exit order preventing the husband's departure from the country, and taking out such an order shall constitute a breach of this agreement, and the husband shall be entitled to obtain one half of the value of the apartment, of the contents and of the gold.

 

                        …"

 

            The divorce agreement was given the effect of judgement by the Rabbinical Court, and on May 26, 1992 the couple was divorced.

 

4.         About five years later, in June 1997, the couple's children (through the petitioner) filed a child support motion against the respondent in the Jerusalem Family Court (FC 10330/97). The motion was mainly intended to increase the child support upon which the couple had agreed in the Rabbinical Court to NIS 6,700. This was, inter alia, due to the petitioner's claim that the respondent was not paying the mortgage payments as undertaken by him in the divorce agreement. In the answer of defense, the respondent defended the claim on its merits. According to him, he was living off a general disability pension of NIS 1,200 per month, from which he was paying child support. The Family Court (per Judge N. Mimon) held in its judgement that the children's monthly support should be increased to a total of NIS 2,000 for both minor children together, and the sum of NIS 500 for the other child until his enlistment to the IDF; with respect to the minors, it was further held that from the time they reached the age of 18 until they completed their service in the IDF, the child support for them would be reduced by NIS 700, and upon completion of their military service the liability for their support will be terminated; if they do not enlist, the liability for them would be terminated when they reach the age of 18. With regard to the other child, upon his enlistment to the IDF and until his discharge, support of NIS 300 would be payable for him.

 

            On September 20, 1997, about three months after the motion to increase child support was filed in the civil court, the respondent filed a motion in the Regional Rabbinical Court of Jerusalem "for a declaratory judgement and specific performance" of the divorce agreement. In the motion, he pleaded that the petitioner had breached the divorce agreement several times and in several different aspects, as follows:

 

                        "8        (a)       The defendant (the petitioner – AP) filed a motion to increase child support in the name of the minors before this Honorable Court on February 28, 1993 – a motion that was dismissed by the Court

 

                                    (b)       The defendant filed another motion on November 6, 1994 and at the end of that motion the wife again applied for an increase in child support.

 

                                    (c)       The defendant motioned for a stay of exit order that was cancelled on July 21, 1997.

 

                        9.         (a)       The defendant went further, and when she saw that her motions were being dismissed by the Honorable Rabbinical Court, she  filed a motion to increase the child support in the name of the minors in FC 10330/97 in the Jerusalem Family Court.…

 

                                    (b)       As part of the motion in Family Court, the wife applied for a stay of exit order that the Court approved.

 

                                    (c)       Moreover, at about the time she filed the motion, the defendant filed a motion for a stay of exit order on July 22, 1997, after the previous order inhibiting departure from the country had been set aside, and the Chief Execution Officer approved it".

 

            He pleaded that the wife had therefore breached clauses 5 and 13 of the divorce agreement. On the basis thereof, the respondent sued the wife for one half of the apartment and its contents and one half of the gold.

 

5.         After filing his motion to the Regional Rabbinical Court, the respondent traveled abroad for more than two years and abandoned his motion. After returning to Israel, he renewed the motion in the Rabbinical Court. The petitioner pleaded in her defense, that the subject of the motion was " breach of a divorce agreement" and according to the law laid down in HCJ 6103/93 Sima Levy v. The Great Rabbinical Court in Jerusalem, PD 48(4) 591 (hereinafter: "Sima Levy Case") the Rabbinical Court did not have jurisdiction to adjudicate the motion. As for the merits of the motion, the petitioner argued that the respondent had come to court with unclean hands because he had breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The Regional Rabbinical Court, in its decision of February 25, 2001, referred the issue of jurisdiction raised by the petitioner to the Rabbinical Courts' then legal counsel on rabbinical jurisdiction, Adv. E. Roth, for his opinion.

 

            During the same month (February 2001) the petitioner filed a lawsuit in the Jerusalem Family Court against the respondent for "declaratory judgement as to the revocation of the indemnity provision in the divorce agreement" (FC 10331/97). This was based, inter alia, on the argument that the respondent breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The petitioner further requested that the Court declare the revocation of clauses 11 and 13 of the divorce agreement, pleading that they were "contrary to public policy and the law". The respondent argued in his defense that the claim should be summarily dismissed due to the proceedings conducted on the same issues in the Rabbinical Court.

 

            On March 4, 2001, and before the Family Court had awarded its decision on the respondent's motion for the summary dismissal of the petitioner's claim, the opinion of the legal counsel on rabbinical jurisdiction, Adv. Roth, was filed in the Rabbinical Court. In his opinion, with reference to clause 5(b) of the divorce agreement, the Rabbinical Court did not have jurisdiction to adjudicate the respondent's motion after the divorce. Nevertheless, he believed that clause 11 of the divorce agreement could be treated as an arbitration clause in accordance with the Arbitration Law, 5728-1968 (hereinafter: "the Arbitration Law"). By virtue of the rules of arbitration, the Rabbinical Court is empowered to adjudicate the suit as an arbitrator in accordance with the rules and restraints governing an arbitrator. He further added that, in his opinion, it was unnecessary for the couple to sign an arbitration deed, since clause 11 of the divorce agreement constituted an arbitration deed in all respects.

 

            Following the opinion of the legal counsel, Adv. Roth, the Regional Rabbinical Court decided on March 5, 2001 that it was vested with jurisdiction to adjudicate the respondent's suit "since in the Court's opinion clause 11 constitutes an arbitration deed".

 

            On May 14, 2002, and before the Regional Rabbinical Court's judgement had been awarded in the respondent's suit, the Family Court awarded its decision in the respondent's motion for the summary dismissal of the petitioner's suit. It reviewed the question of the Rabbinical Court's jurisdiction to try the respondent's claim, whether as a court empowered by virtue of statute or as an arbitrator, but it decided to stay the award of its decision on jurisdiction on the ground that:

 

                        "Mutual respect of legal instances requires that after a decision has been awarded by the Rabbinical Court holding that it has jurisdiction to adjudicate the suit that has been filed with it as an arbitrator, the award of a decision on jurisdiction should be stayed until the proceedings in respect of jurisdiction have been exhausted by the plaintiff, who will perhaps wish to act by applying on appeal to the Great Rabbinical Court or by applying to the High Court of Justice to clarify whether her position with regard to jurisdiction will be allowed, or even by motioning to vacate an arbitral judgment as provided in section 24 of the Arbitration Law…"

 

            On May 27, 2002, the Regional Rabbinical Court awarded its judgement in the respondent's motion. The court was divided in its opinion between the three judges, and the decision was made, in the words of the judgement, in accordance with –

 

                        "the third opinion, which was the decisive one of the three, since there are several doubts regarding the interpretation of the agreement, and there is a doubt as to whether it constitutes a breach according to Halachic authorities and the circumstances. Therefore, the case should be decided according to the law, and if the apartment has already been transferred into the wife's name, it is not possible to take away her ownership of the apartment because of a doubt, and of course the wife is liable to comply with all of the obligations in the divorce agreement.... If the apartment has not yet been transferred, it is not possible to order the plaintiff ... to transfer his share of the apartment into the wife's name ....

If the plaintiff has already signed a power of attorney and delivered it to the wife, it would appear that the wife cannot be precluded from exercising the power of attorney in order to transfer the plaintiff's share of the apartment into the wife's name…. On the other hand, if the husband still needs to sign transfer documents and the like, he should not be made to help transfer the dwelling into the wife's name in any way whatsoever….

With regards to the gold objects that the wife has received, it would also appear that she cannot be made to return them to the husband because they are in her possession and in this way her possession is valid…"

 

            As mentioned above, according to the Rabbinical Court's decision of March 5, 2001 it decided the respondent's suit as an arbitrator, but on June 18, 2002 it awarded another decision that was headed "Clarification", according to which:

 

                        "The Rabbinical Court makes it clear that it was the Rabbinical Court that approved the agreement and that there was an undertaking that all matters involved in the agreement would be tried solely by the Rabbinical Court. Therefore, since both parties undertook in the agreement, and the Rabbinical Court also approved the agreement, the Rabbinical Court consequently has jurisdiction to hear and adjudicate the matter, and the Rabbinical Court awarded the judgement by virtue of its jurisdiction, and there was no need for the Rabbinical Court to adjudicate the same as arbitrator, and although the Rabbinical Court could also adjudicate the matter as an arbitrator, the Rabbinical Court also had jurisdiction to try the matter as an adjudicating court in accordance with the aforegoing".

 

6.         The petitioner appealed to the Great Rabbinical Court against the Regional Rabbinical Court's judgement of May 27, 2002. Her main plea in the appeal was that the Regional Rabbinical Court did not have jurisdiction to adjudicate the respondent's suit, either as a competent court by virtue of the law or as an arbitrator, and its judgement is therefore void. As to the actual merits, she argued that the Regional Rabbinical Court had made an error "of judgement" and "disregarded facts" by not giving proper weight to the fact that it was the respondent who was in breach of the divorce agreement by not making the mortgage payments as he had undertaken in the divorce agreement. Consequently, on that ground too, on the merits of the case, the Regional Rabbinical Court's judgement should be vacated. The respondent also appealed to the Great Rabbinical Court against the said judgement.

 

            The Great Rabbinical Court, in its decision of May 4, 2003, dismissed the petitioner's appeal with respect to jurisdiction and held that the interpretation of the divorce agreement indicated that it concerned the couple's agreement for "property in consideration for child support". That interpretation affects the substance of the complaint that the respondent filed to the Rabbinical Court, and it demonstrates that it is a suit to revoke the divorce agreement as opposed to a motion for the enforcement of an indemnity provision. That being the case, the Rabbinical Court had jurisdiction to adjudicate the respondent's motion by virtue of its original (primary) authority because "indemnification was not involved, but property and child support and the connection between them, and those matters of property division and child support are certainly matters of personal status that are governed by section 9 of the Rabbinical Courts Jurisdiction Law". The Rabbinical Court was also vested with original (primary) jurisdiction to adjudicate the suit in view of clause 11 of the divorce agreement, which provides that if differences arise between the petitioner and the respondent after the divorce, the two undertake to file the motion solely to the Rabbinical Courts. The Rabbinical Court mentions that at the hearing, the respondent also pleaded avoidance of the Get and the divorce because according to him the Get had been given by mistake. Consequently, on that ground too, the Rabbinical Court had original (primary) jurisdiction to adjudicate the claim. According to the Rabbinical Court, it also had jurisdiction by virtue of its "continuing" jurisdiction, because the respondent was "applying expressly for the revocation of the property arrangement as a result of a change in circumstances concerning child support". Finally, the Great Rabbinical Court held that the jurisdiction to adjudicate the respondent's suit was vested in the Regional Rabbinical Court, when "the jurisdiction is the essential jurisdiction vested in the Rabbinical Court, rather than jurisdiction by virtue of the Arbitration Law". The Great Rabbinical Court adjourned the deliberation on the appeal itself to a later date.

 

            On June 9, 2003 the Great Rabbinical Court awarded another decision, this time with regard to the respondent's appeal against the Regional Rabbinical Court's judgement. In its decision, the Great Rabbinical Court ordered the matter to be remitted to the Regional Rabbinical Court for it to try the argument, which had not been tried in the Regional Rabbinical Court, that the petitioner had breached the divorce agreement by suing for increased child support in the Regional Rabbinical Court in 1993.

 

The Petition

 

7.         In her petition before us, the petitioner seeks to set aside the decisions of the Great Rabbinical Court and the Regional Rabbinical Court, according to which the Rabbinical Court had jurisdiction to adjudicate the respondent's motion, both as original (primary) jurisdiction and by virtue of an arbitration clause.

 

            This Court issued an order nisi in the petition.

 

The Parties' Arguments

 

8.         The petitioner's essential argument in her petition herein is that the Rabbinical Court lacks jurisdiction to adjudicate the property dispute that has arisen between her and the respondent in respect of the divorce agreement that was made between them. According to her, the Rabbinical Courts are not vested with original (primary) jurisdiction to adjudicate the suit. Moreover, they do not have continuing jurisdiction to hear the respondent's suit. The respondent's motion to obtain one half of the property, which was transferred to the wife, is based on the cause of enforcing an indemnity provision in the divorce agreement. This cause is based on a plea of breach, if one occurred, after the divorce agreement was made and the judgement of the Rabbinical Court giving it force and effect was awarded, and after the couple had been duly divorced. A subsequent breach of the divorce agreement in respect of property after the parties' divorce cannot be bound in retrospect with the divorce agreement and the judgment that materialized in the past. From the divorce and onwards, motions that relate to the breach of the divorce agreement are not a part of matters of personal status. The Rabbinical Court therefore lacks jurisdiction to adjudicate them, and jurisdiction in respect of them is vested in the civil court. Moreover, it was argued that the respondent himself breached the divorce agreement by not paying the mortgage payments as he had undertaken to do in the divorce agreement. His breach of the agreement has civil-financial character, which also demonstrates that his suit after the divorce is subject to the jurisdiction of the civil, rather than religious, court. The petitioner further pleads that clause 11 of the divorce agreement does not amount to an arbitration clause and does not purport to establish an agreement for arbitration. Instead, its wording and contents merely demonstrate its determination, by agreement of the parties, to which court the couple's motions after the divorce should be filed. This agreement, per se, does not vest jurisdiction in the Rabbinical Court. In view of all of this, and based on other grounds too, upon which we shall not focus, the Rabbinical Courts' decisions on jurisdiction are void.

 

9.         The respondent's position in his petition is that the Rabbinical Court is vested with jurisdiction to adjudicate the suit he filed to it. In this respect, he relies on the provision of the divorce agreement, according to which the parties expressly agreed to vest the Rabbinical Court with jurisdiction to try any future dispute between them concerning the agreement. He pleads that, according to case law, a matter that can be bound from the outset with the divorce suit, such as property matters, and it was agreed in the divorce arrangement to vest jurisdiction in the Rabbinical Court in respect to them, is also within its jurisdiction after the divorce. He further asserted that the meaning of the cause of the action that he filed was the revocation of a conditional undertaking given under the agreement, as opposed to the enforcement of a contractual indemnification arrangement. That is to say that the respondent entered into a conditional undertaking to transfer property to the petitioner in consideration for the child support being set in a binding amount and not being increased, and for motions not to be brought in this matter. Since that condition had not been fulfilled, the property undertaking that he had given is void. A contractual indemnification provision is not to be treated in the same way as a conditional property undertaking, with regard to which the Rabbinical Court has continuing jurisdiction even after the divorce. Alternatively, it is argued, the Rabbinical Court has jurisdiction to entertain the respondent's suit according to the law of arbitration, by virtue of clause 11 of the divorce agreement, which constitutes an arbitration agreement, even if the word "arbitration" is not mentioned in it.

 

Judgment

 

10.       This Court's intervention in the decisions of religious courts is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal (sections 15(c) and (d)(4) of the Basic Law: the Judiciary; HCJ 323/81 Vilozni v. The Great Rabbinical Court, PD 36(2) 733; HCJ 1689/90 E'asi v. The Sharia Court, PD 45(5) 148, 154-155; HCJ 1842/92 Blaugrund v. The Great Rabbinical Court PD 46(3) 423, 438; HCJ 5182/93 Levy v. The Rehovot Regional Court PD 48(3) 1, 6-8).

 

            The subject matter of the petition herein justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it for the reasons explained below.

 

The Question

 

11.       The couple signed a divorce agreement containing property and child support arrangements. In the scope of the property arrangements, they agreed to limit and not increase child support. They added a condition according to which if motions to increase child support were filed by the wife, directly or indirectly, or if she took out stay of exit orders, these actions would have certain property consequences. The parties further agreed that if differences arose between the couple after the divorce, they undertook to conduct the claims solely in the Rabbinical Courts. Indeed, after the divorce, disputes did arise between the parties following motions to increase child support that were brought against the husband, and stay of exit orders were taken out. Further thereto, the husband filed a suit in the Rabbinical Court claiming a breach of the divorce agreement by the wife and requesting to receive one half of the property because of that breach. In those circumstances, after the couple's divorce, is the Rabbinical Court vested with jurisdiction to adjudicate the husband's property suit, which is based on an alleged breach of the divorce agreement by the wife? Or is the exclusive jurisdiction to deliberate and adjudicate that claim vested in the civil court?

 

            The subsidiary questions that are to be decided can be divided into two:

 

            First is whether the Rabbinical Court has jurisdiction by virtue of the law to adjudicate a property claim based on a breach of the divorce agreement after the divorce has been completed, by virtue of one of the following:

 

            (a)       Original-primary jurisdiction by virtue of statute to hear and adjudicate issues pertaining to the divorce;

 

            (b)       the Court's "ancillary" jurisdiction to adjudicate matters connected with the divorce after its completion, as interpreted and expanded by case law.

 

            The Second is whether the Rabbinical Court has jurisdiction to decide a property claim based on the breach of a divorce agreement by virtue of the parties' agreement, and what legal significance is to be given to this agreement.

 

            We shall consider these questions.

 

The Starting Point

 

12.       The starting point underlying the analysis of the Rabbinical Court's scope of jurisdiction is based on several fundamental assumptions:

 

            First, the Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom. As such a state judicial instance, the bounds of the Rabbinical Court's powers are defined and fashioned in accordance with the state law.

 

            Second, every state judicial instance, including the religious court, has merely those jurisdictions that the state law has granted it; it is the statute that established it, and it is the one that defined its powers and assigned them to it. In doing so, the statute assumed, as part of the basic concept of democratic government, that in the granting of judicial powers also lay judicial limitations. Anything that has not been granted to the judicial instance is outside and beyond its power, and it must not surpass its acknowledged boundaries and into areas that have not been entrusted to it and go beyond its responsibility. That is the principle of legality that characterises the structure of democratic government, upon which rests the perception of the status of the government authorities, including the courts. It is on the basis of this principle that the realm of jurisdiction that is vested in the state judicial instances, of which the Rabbinical Courts form part, extends.

 

            Third, the definition of the judicial powers of the various different courts, including the Rabbinical Courts, derives from statute, and statute is subject to interpretation by case law. The case law's interpretation of the extent of the powers vested in the judicial instance is intertwined with the provisions of the statute as the primary source of the power vested in the judicial instance, and it is intended to serve its purpose. In reviewing the boundaries of the religious court's power we shall therefore assume that the religious court is vested with the powers that have been granted to it by the statute, as they have been interpreted by case law, and it has only what the law has given it. As the Court stated (per Justice Landau) in HCJ 26/51 Menashe v. The Chairman and Members of the Rabbinical Court in Jerusalem, PD 5 714, 719:

 

                        "The Rabbinical Courts of our country exist in accordance with the general law, which determines their place in the state courts system, and the questions relating to the spheres of their jurisdiction should generally be resolved in accordance with the same principles as govern other courts".

 

            This is what distinguishes Rabbinical Courts from arbitrators, internal tribunals and voluntary tribunals, which are not established by virtue of statute but mainly by virtue of contract or regulations, and the scope of their jurisdiction is determined pursuant thereto. These entities are essentially governed by the principles of the private law that creates them and they are not part of the country's state judicial system.

 

            As Justice Zamir stated in HCJ 3269/95 Yosef Katz v. The Jerusalem Regional Rabbinical Court, PD 50(4) 590, 602:

 

                        "The Rabbinical Court is established by virtue of statute and its jurisdiction derives from the statute. Its budget comes from the State Treasury and its judges receive salaries like state employees; it sits in judgement beneath the symbol of the State and it writes its judgements on State paper; the orders that it issues speak in the name of the State and are enforced by the State. The Rabbinical Court is not a private entity but a state institution. It is therefore subject to public law and review by the High Court of Justice. Amongst other things, the Rabbinical Court is obliged to respect and observe the fundamental principle that governs every government agency, namely the principle of legality. According to that principle, the Rabbinical Court has nothing other than the power granted to it in accordance with the statute" (emphasis added).

 

            In this respect Justice Cheshin stated in the Sima Levy Case (ibid, p. 616):

 

                        "The legal system takes a grave view of a judicial entity acting beyond the bounds set for it by the law; hence, the case law holds that a lack of subject matter jurisdiction plea stands out and the court will consider it at any stage of the litigation, even where a party first raises it on appeal".

 

            (See also HCJ 816/98 Eminoff v. Eltalaff, PD 52(2) 769, 796-7; HCJ 512/81 The Hebrew University Archaeology Institute v. The Minister of Education, PD 35(4) 533, 543-4; HCJ 30/76, MF 150/76 Siho v. The Karaite Jewish Community Religious Court, PD 31(1) 15, 17-18.)

 

            The state judicial system, and its various different courts, both civil and religious, is built on common norms that govern all its agencies. Thus, for example, it has been held in the past that the fundamental principles that govern civil judges also apply to rabbinical judges. The rabbinical judge, like the civil judge, is part of the judicial authority and in his position he is subject to the same basic rules as obligate any judicial officer:

 

                        "He is not an arbitrator between parties who voluntarily apply to him. He operates by virtue of state law and his authority extends over the whole public with all its diversity, opinions and views. Like a civil judge, a rabbinical judge enjoys independence in matters of judgement. The laws concerning conditions of service, immunity, appointment, discipline and the like that govern the rabbinical judge are very similar to those that govern a civil judge. Like the civil judge, so too the rabbinical judge must, by his action, ensure the public's trust in his judgement. The public is not only the religious public. The rabbinical judge deals with the whole people and he must by his conduct ensure the trust of the whole people, both secular and religious". (Per Justice Barak in HCJ 732/84 MK Tzaban v. The Minister of Religious Affairs, PD 40(4) 141, para. 16.)

 

            In this context, case law has also drawn a clear distinction between a person's fitness as a rabbinical judge of the Israeli Rabbinical Court and his fitness as a community rabbi. On enactment of the Dayanim (rabbinical judges) Law a clear separation was created between judicial and rabbinic functions, and a mix between the two in judicial work is no longer consistent with the concept of state law. In the words of the Minister of Religious Affairs Warhaftig, when he presented the Dayanim Law draft on first reading in the Knesset, as cited in the Tzaban Case:

 

                        "With the establishment of the State of Israel we adopted this course. We distinguished between those functions and separated between rabbis and rabbinical judges" (Knesset Proceedings Session 5457, 1954, p. 2182).

 

 

 

            As Justice Goldberg added on this subject in the Tzaban Case:

 

                        "The main power of the Rabbinate rests in its traditional authority over those who come 'to seek God', whilst the rabbinical judges' authority when sitting in judgement does not depend on the wishes of the litigants but is enforced in the context of the judicial system prescribed for it by the legislature. In this sphere, the rabbinical judges perform the function of 'judging the people', with its varied opinions and views".

 

 

            The religious function of the rabbinical judge as rabbi is not intertwined with the judicial function that he performs as a rabbinical judge and is separate from it. The Rabbinical Court cannot therefore rely on its religious power in order to assume jurisdiction in a matter that exceeds its powers and authorities in accordance with state law (Schiffman, Family Law in Israel, 5755, Vol. I, p. 42).

 

            Against this background there is difficulty with the argument that is sometimes made that the Rabbinical Court might perform a dual function: on the one hand, a state judicial function imposed upon it by virtue of state law, and on the other hand, a religious court in monetary matters by virtue of the parties' agreement. Like any public entity that performs a function in accordance with the law, so the Rabbinical Courts, which operate by virtue of statute must also discharge the responsibility owed by them by virtue of statute and decide the matters entrusted to them. As part of the state judicial system, they possess only the jurisdiction that the statute has placed in their hands. That is the essence of the principle of legality that underlies public administration and the judicial system (Katz Case, ibid, p. 607); hence, even if Jewish law and tradition permit a Rabbinical Court to adjudicate and decide disputes in a certain manner, that does not suffice to authorize it to do so because "the Rabbinical Court, as a state institution, must act within the authority vested in it by state law" (Katz Case, ibid, p. 607). To the same extent, a civil court, which is part of the judicial authority, may not assume an authority or function that does not derive from state law (Tzaban Case, ibid, p. 152).

 

            It is against this background that we shall examine the question of the Rabbinical Court's jurisdiction to decide the respondent's property suit against the petitioner based on a breach of the divorce agreement, and the relief deriving therefrom. A comprehensive analysis of the issue of jurisdiction in a similar context can be found in the judgement of Justice Cheshin in the Sima Levy Case and it will guide and direct us.

 

The Rabbinical Court's Original – Primary Jurisdiction

 

13.       The original primary powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built on two tiers: exclusive powers by virtue of the statute; and parallel powers of the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The exclusive powers comprise matters of marriage and divorce, as well as matters that are duly bound up in the motion for divorce, including wife and child support. Parallel jurisdiction that is vested by agreement relates to matters of personal status in accordance with article 51 of the Palestine Orders in Council and the Succession Ordinance. The relevant provisions are as follows:

 

                        "1.       Jurisdiction in matters of marriage and divorce

 

                        Matters of marriage and divorce of Jews in Israel, nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

 

                        …

 

                        3.         Jurisdiction in matters incidental to divorce

 

                        Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including support for the wife and for the children of the couple.

 

                        …

 

9.         Jurisdiction by consent

 

In matters of personal status of Jews, as specified in article 51 of the Palestine Orders in Council, 1922 to 1947, or in the Succession Ordinance, in which a rabbinical court does not have exclusive jurisdiction under this Law, a rabbinical court shall have jurisdiction after all parties concerned have expressed their consent thereto."

 

The Rabbinical Court's powers – both the exclusive ones (marriage, divorce and matters bound with divorce) and the jurisdiction in accordance with the parties' agreement in matters of personal status – are original-primary powers by virtue of the statute to hear and rule on the matters that fall within the scope of those powers.

 

Power Ancillary to Original Jurisdiction

14.       The Case law has recognized the existence of a judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the statute and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past. Such is, for example, the jurisdiction of the civil and religious courts to vacate a judgement awarded by them that is based on an agreement between the parties, in the making of which there has been a defect. Such a material defect might lead to the revocation of the agreement and therefore also to revocation of the judgment that rests upon it, and the instance empowered to decide its revocation is the one that rendered the judgment (HCJ 124/59 Glaubhardt v. The Haifa Regional Rabbinical Court, PD 13 1490; CA 151/87 Artzi Investment Co. v. Rachmani PD 43(3) 489, 498-500). Additional expression of such ancillary jurisdiction occurs when there is a material change in the circumstances of the matter, that has occurred after the award of judgement by consent, which makes its continued performance unjust (Sima Levy Case, ibid, pp. 605-6; CA 442/83 Kam v. Kam PD 38(1) 767, 771; CA 116/82 Livnat v. Tolidano PD 39(2) 729, 732; CA 219/87 Rachmani v. Shemesh Hadar, Building Company Ltd et al. PD 43(3) 489, 498-500). The recognition of this ancillary jurisdiction is intended to bring about a proper balance between the judgment’s finality on the one hand, and the interest not to leave in effect a judgment, the enforcement of which has become extremely unjust due to a change in circumstances. Inherent jurisdiction is also vested in the judicial instance, including the Rabbinical Court, to retain jurisdiction in respect of a matter that is pending before it until the proceedings have been completed. So long as final judgement has not been awarded, jurisdiction continues until the judicial court has completed its work. Once a final, unconditional judgment has been awarded, the work is completed (Sima Levy Case, p. 607; CA 420/54 Ariel v. Leibovitz PD 9 1337; ALA 2919/01 Daniel Oshrovitz v. Yael Lipa (Fried) PD 55(5) 592; J. Zussman, The Civil Procedure (seventh edition, 5755) 550).

One of the expressions of ancillary jurisdiction relates to the existence of the Rabbinical Court's "continuing jurisdiction", the essence of which is that, under certain conditions, where the Rabbinical Court has in the past heard a particular matter, its continuing jurisdiction to hear it again will be recognized. The continuing jurisdiction also derives from the inherent power of the judicial instance. Its basic purpose is to give expression to the duty of mutual respect and the need for harmony between judicial instances where there is parallel jurisdiction between them, and in order to avoid parties running from one judicial instance to another. It has nevertheless already been explained that continuing jurisdiction is not intended to undermine or derogate from the original powers vested in the judicial instances in accordance with statute. Its purpose is essentially "to vest power to vacate or modify an earlier decision due to a change that has occurred in the circumstances upon which the first decision was based" (per Justice Cheshin in the Sima Levy Case, ibid, p. 608, 610). Such are matters of child support and custody, which by their nature are subject to material changes of circumstance, and the original judicial instance therefore has inherent jurisdiction to reconsider them when the appropriate conditions arise.

It should be made clear that no inherent power has been recognized for a civil or religious court to exercise its original authority again in order to interpret a judgement awarded by it. Hence, a Rabbinical Court that has granted a divorce does not have inherent jurisdiction to interpret the divorce agreement and the judgement that awarded it force and effect (Sima Levy Case, ibid, pp. 612-13).

These are the characteristics of the original jurisdiction that is vested in the Rabbinical Court in accordance with the statute, alongside its ancillary powers that are sparingly exercised in special circumstances by virtue of its inherent jurisdiction, in order to complete the judicial act and make it a complete and just deed.

We shall now examine the question of whether the Rabbinical Court has jurisdiction to adjudicate a dispute by virtue of the parties' agreement, where such jurisdiction is not set in the statute empowering the Rabbinical Courts, and is not within the scope of the ancillary jurisdiction vested in it.

The Rabbinical Court's Jurisdiction by Virtue of the Parties' Agreement

15.       The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement to grant the Court jurisdiction in a particular case, regardless of the provisions the Rabbinical Courts Jurisdiction Law; second, agreement intended to empower the Court to hear and rule on a dispute as an arbitrator. Can such agreement by the parties vest power in the Court that is not granted to it by the empowering statute or embodied in its ancillary powers?

The Israeli state judicial system and the various different judicial instances, derive their powers from statute. It is the statute that establishes them, it is what delineates the bounds of their activity and it is what defines the sphere of their subject matter and territorial jurisdiction. This is also the case in respect to the civil judicial instances; and so it is with respect to the special judicial systems, including the courts of Israel's different religious communities. These include the Rabbinical Courts in Israel.

By defining the powers of the various different judicial instances in Israel, the statute intended not only to delineate the function and responsibility of the system and its various different arms. It also sought, at the same time, to deny the power of a judicial instance to hear and adjudicate a matter which it was not charged with by the statute and which is not within its inherent jurisdiction. The definition of the judicial instances' powers has a dual dimension, both positive and negative: it constitutes a source of power and responsibility on the one hand, while denying the exercise of authority and power that have not been so conferred; the judicial instance has only what the statute that established it has vested in it, and insofar as it has been made responsible to adjudicate disputes within the scope of the power vested in it, it is under a duty that derives from the statute and the concept of democratic government not to try or adjudicate a matter that is beyond its statutory power.

A preliminary and mandatory condition for the satisfactory activity of any judicial system is a clear and exhaustive definition of the framework of powers and the apportionment of functions that rest with its various different instances. Without an exhaustive and specific definition of powers the systemic structure, built in accordance with the statute, is blurred and the stability of its functioning is not secured. The harmony necessary in the area of operation of the different judicial arms and the relationship between them is impaired; the allocation of professional, administrative and budgetary resources to the different instances is disrupted, and direct harm might occur to the efficacy of the judicial system and the level of judicial performance. The uniqueness of the responsibility owed by the judge, which requires the existence of a clear framework of authority, alongside which is the responsibility and duty to rule, becomes blurry. Thus, recognizing the power of a judicial instance to adjudicate matters, the power and responsibility for which have not been legally transferred to it, might materially disrupt the internal balance required in the structure of the judicial system and severely undermine its standing and performance.

A consequence of the aforegoing is that the power of a judicial instance, as such, be it civil or religious, is acquired by law and it has no power to be derived from the parties' agreement, except where the statute itself has seen fit to recognize such agreement in certain circumstances as a source of the power to adjudicate. Thus, for example, with regard to the effect of the parties' agreement, the law has distinguished between the apportionment of subject matter jurisdiction and territorial jurisdiction between judicial instances. It is willing to acknowledge, in certain conditions, the parties' agreement as a valid source for changing the territorial jurisdiction that has been prescribed. Section 5 of the Civil Procedure Regulations, 5744-1984 provides that when an agreement between parties as to the place of jurisdiction exists, the lawsuit will be filed to the court in that area of jurisdiction. The relative flexibility regarding territorial jurisdiction, and the willingness to recognize the parties' agreement as the source of such jurisdiction, stems solely from the statute and derives its power from its provisions. That is not the case in respect of subject matter jurisdiction. Generally, the law does not recognize that the parties' agreement has power to depart from the rules of subject matter jurisdiction, as crafted by state legislation.

A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to hear and rule a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. In general, a judicial instance is not supposed to adjudicate a matter that is referred to it as arbitrator. However, in certain circumstances, the law has expressly recognized the power of a civil instance to adjudicate a dispute in departure from the ordinary rules of procedure. Thus, for example, in the area of small claims, section 65 of the Courts Law (Consolidated Version), 5744-1984 provides that if a lawsuit has been filed in the small claims court, the judge may, with the parties’ consent, try the claim as arbitrator, and the provisions of the Arbitration Law will govern the matter, with certain restrictions; in addition, a court hearing a civil matter has been empowered, with the parties’ consent, to decide a matter before it by way of settlement (section 79A of the Courts Law) or to refer a matter, with the parties' consent, to arbitration or conciliation (sections 79B and 79C of the Courts Law). The said authorities are all vested in the court by virtue of statute. They assume that the subject of the dispute is within the subject matter jurisdiction of the court hearing the case and they give it special procedural means that are intended to facilitate and expedite the process of deciding the dispute and bringing about a just result. The various judicial instances have not been generally empowered by law to hear and decide matters that are not included in the scope of their subject matter jurisdiction by virtue of the parties' agreement, either as arbitrators or otherwise. Since such authority has not been conferred to them, it is, ipso facto, denied and does not exist.

The Rabbinical Courts are an integral part of the Israeli judicial system. They were established by virtue of the Rabbinical Courts Jurisdiction Law and they derive their power and authorities from the state statute. They have nothing other than what is vested in them by the statute, and they are subject to the set of powers of the statute in their judicial work, as interpreted over the years by case law. Along those lines, this Court has held in the Katz Case that the Rabbinical Court is not empowered to issue a Letter of Refusal in monetary matters that is intended to compel a party to submit to the Rabbinical Court's jurisdiction by ostracizing and disgracing the recalcitrant party; and in HCJ 2222/99 Gabai v The Great Rabbinical Court PD 54(5) 401, the opinion was expressed that the Rabbinical Court lacks legal authority to issue a forced settlement decision, without the parties' consent, thus forcing a judgment on the parties without determining facts on the basis of evidence, if it is unable to decide in accordance with the law.

It emerges from this that the parties' agreement as such cannot, per se, grant jurisdiction to the Rabbinical Court, unless, it has been recognized by the law as a primary source of authority. Thus, the parties' agreement has been recognized as a source of the Rabbinical Court's jurisdiction pursuant to section 9 the Rabbinical Courts Jurisdiction Law, in matters of personal status of Jews pursuant to article 51 of the Palestine Orders in Council or according to the Succession Ordinance, which are within the parallel jurisdiction of the Rabbinical Court and the civil instance. Nevertheless, the Rabbinical Court does not have power to hear and decide a matter that is not of the kind found within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their consent to its jurisdiction. Such agreement does not derive from a legally recognized source of authority in the law and it cannot, per se, vest jurisdiction in a state judicial instance.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Agreement

16.       According to the same line of reasoning, the Rabbinical Court has no power and authority to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter, which by its nature is not within its legal jurisdiction. The Court has not been vested with jurisdiction by law to decide disputes as an arbitrator and the parties' agreement cannot vest it with such power.

The issue of the Rabbinical Court's jurisdiction to arbitrate financial and other matters that go beyond the powers granted to it in accordance with the Rabbinical Courts Jurisdiction Law has caused consternation and confusion over the years. It appears that, in reality, the Rabbinical Court assumes the role of arbitrating matters that are beyond the scope of its subject matter jurisdiction (Katz Case, ibid, pp. 606-8; CA 376/62 Bachar v. Bachar, PD 17(2) 881, 882, 885; CA 688/70 Doar v. Hamami, PD 25(2) 396, 399; M. Alon, Jewish Law – History, Sources and Principles, third edition, vol. III, 5748, 1529). Justice Barak considered the inherent difficulty of a state judicial instance's need to adjudicate a dispute by arbitration where it was not empowered to do so by law, saying:

"The first possible argument is that the motion to the Rabbinical Court is like that to an arbitrator and embodied in the Arbitration Law, 5728-1968. That possibility – which has used in practice and can be encored as a year-long custom - raises serious problems in principle. Thus, for example, it can be asked whether it is proper for a judicial entity, whose powers are prescribed by law, to assume additional judicial powers, by being empowered as an arbitrator. Is it conceivable that parties would motion the magistrate’s court to try a pecuniary claim, that is outside its jurisdiction, as an arbitrator? From the state's point of view, is it justifiable to use judicial time and tools (whether of the civil or religious courts) for matters outside the jurisdiction that the law has granted the judicial authorities? Is there no fear that the public be confused as to which decisions the judicial instance has awarded as the government and those that it has awarded as arbitrator?"

(HCJ 3023/90 Jane Doe (a minor) v. The Rehovot Regional Rabbinical Court PD 45(3) 808, 813-14; see also S. Ottolenghi, Arbitration, Law and Procedure (fourth edition, 5765) 167-8; Schiffman, ibid, vol. I, 37.)

In HCJ 2174/24 Kahati v. The Great Rabbinical Court, PD 50(2) 214, this Court (per Justice Dorner) once again referred to the practice, adopted from time to time by the Rabbinical Courts, of deciding disputes as arbitrators in matters that are not within their jurisdiction. It expressed skepticism with respect to the validity of the practice. However, as in the previous case, it again left this question open without making any conclusive ruling, since such a ruling was not necessary in that case (cf. Aminoff, ibid, pp. 792-3).

17.       There is indeed an inherent difficulty in recognizing the Rabbinical Court's power to decide a dispute in a matter on which it has not been given jurisdiction by law (cf. Ottolenghi, Dispute Resolution by Alternative Means, Israeli Law Yearbook, 5752-5753, p. 535, 550-1). In the past, the Mandate government empowered the Rabbinical Courts to act as arbitrators by means of section 10(d) of the Israel Knesset Regulations of 1927, but upon the establishment of the State, the “Israel Knesset”, within its meaning under the Mandate, ceased to exist and it was held that those Regulations no longer had any force or effect (Crim. App. 427/64 Yair v. The State of Israel PD 19(3) 402; HCJ 3269/95, ibid, p. 622-3; Schiffman, ibid, p. 39). It cannot therefore be argued that the said section might serve as the source of the Rabbinical Courts' power as arbitrators. Moreover, upon enactment of the Arbitration Law, it was proposed that an arbitration decision made by a religious court when ruling as an arbitrator would in all respects, except with regard to the appeal, be treated as a judgement of the court sitting in accordance with its jurisdiction prescribed by statute, and that the award would not require confirmation under the Arbitration Law. That proposal was not accepted (Knesset Proceedings 5728, pp. 2966-7).

It is indeed difficult to settle the governing perception that views the judicial system as an arm of government, which derives its power and authority from statute, while acknowledging the possibility that the selfsame system can acquire other subject matter authorities deriving merely from the parties' agreement that do not originate from the empowering law. The Israeli Rabbinical Courts, that are part of the Israeli judicial system, integrate with the said perception and, like the other judicial instances, operate in accordance with the principle of legality of the arms of government (see the dissenting opinion of Justice Tal in the Katz Case, distinguishing between the power of religious courts as a state authority and the power they have, in his opinion, by virtue of Jewish law, which is not connected with state law).

18.       Apart from the essential difficulty inherent in the judicial decision of the Rabbinical Court as an arbitrator, which is not consistent with the principle of legality of the government authorities, other difficulties arise from the said procedural practice. The practice blurs the spheres of the Court's own activity in respect of the procedural basis upon which its decision rests: is it a decision within the scope of the Court's state power that is subject to review by the High Court of Justice in accordance with section 15 of the Basic Law: the Judiciary, or is it an extra-statutory power that is built on a different foundation originating from the parties' agreement and subject to review by a different judicial instance, like the District Court, in accordance with the Arbitration Law (cf. Jane Doe Case, ibid, para. 7)? In more than a few cases the parties might misunderstand the nature of their agreement to vest jurisdiction in the Rabbinical Court as they do not always understand the meaning and implications of their consent. Moreover, usually, in the course of such adjudication, strict attention is not paid to enquiring into the existence of an arbitration agreement or the application of the Arbitration Law and the rules pursuant thereto, such, for example, the mechanism for the confirmation and revocation of an arbitral award and the role of the District Court as the competent instance in accordance with the Arbitration Law (Ottolenghi, ibid, p. 168; Dichovski, The Standing of a Rabbinical Court Dealing with Property Law As Arbitrator, The Jewish Law Yearbook 16-17 (5750-5751) 527; MF 268/88 Delrahim v. Delrahim, DCJ 49(3) 428; SC 2329/99 Kfir v. Kfir, PD 55(2) 518, para. 5). An arbitral judgment made by the Rabbinical Court frequently does not undergo confirmation or revocation proceedings in the District Court as required by the Arbitration Law for the purpose of its execution, and the Rabbinical Court has no power to confirm an arbitral judgment (Kahati, ibid, p. 220; HCJ 5289/00 Mograbi v. The Great Rabbinical Court, Takdin Elyon 2000(2) 581; Kfir Case, ibid, para. 5). Furthermore, a situation in which the District Court, by virtue of the Arbitration Law, might oversee the Rabbinical Court's decisions as an arbitrator might harm the proper balance between the instances and aggravate the tension between the civil and religious judicial arms (A. Porat, The Rabbinical Court As Arbitrator, Kiriat Mishpat II (5762) 503, 521-4; Dichovski Case, ibid, p. 529).

The Rabbinical Court, purporting to act as an arbitrator between the parties, still operates under cover, and with the characteristics, of its state role. To that end it makes use of the court's physical and organizational system, which is financed by the state; it adjudicates disputes as an arbitrator in the scope of the court calendar, as part of its ordinary work; the overall services, the organizational and professional arrangement and the government budget are also used by it in that function, which by its nature does not have a state character. The time that it should devote to matters of personal status in its official capacity is partly assigned by it to a different judicial function that is not for the state, despite appearing to carry the state seal in the eyes of the public at large, who finds it difficult to distinguish between the judicial function and the extra-statutory function performed by the Court. This intermingling of functions is inconsistent with the principle of legality and a correct definition of the functions and powers of a state judicial instance (Katz Case, ibid, p. 608; Schiffman, ibid, pp. 37-8).

19.       Mention ought to be made to the approach of Prof. Shochatman in his paper entitled The Rabbinical Courts' Jurisdiction in Matters Other Than Personal Status (Bar Ilan University Yearbook on Humanities and Judaism, vols. 28-29 (5761) p. 437, p. 449 et seq.). As he sees it, the Rabbinical Court might acquire jurisdiction by virtue of the parties' agreement in matters outside its jurisdiction in accordance with the Rabbinical Courts Jurisdiction Law by virtue of section 15(d)(4) of the Basic Law: the Judiciary, thereby acquiring jurisdiction as an arbitrator. According to that Law, which defines the High Court of Justice's power to review religious courts, the question of a religious court's jurisdiction can only be referred to this instance when it was raised at the first opportunity. The author infers from this that where there is prior agreement between the parties to vest subject matter jurisdiction in the religious court, a party who has so agreed may not later dispute jurisdiction. By virtue of that preclusion the religious court acquires subject matter jurisdiction, and the High Court of Justice is itself precluded from intervening therein. According to this approach, such an agreement vests subject matter jurisdiction and is not limited solely to matters of personal status. It might encompass numerous spheres that are beyond the subject matter jurisdiction of the religious court, as defined in the Rabbinical Courts Jurisdiction Law.

I cannot agree with this position. The interpretation expressed by Prof. Shochatman assumes that it is possible to recognize the existence of subject matter jurisdiction of an Israel state judicial instance by means of the parties' consent, combined with the doctrine of preclusion and estoppel that prevents someone who has agreed to jurisdiction from later disputing it. That approach is fundamentally inconsistent with the principle of legality that obligates judicial instances, including the religious courts. It is not consistent with the starting point whereby subject matter jurisdiction is vested in a judicial instance by a positive arrangement, and its existence is not to be inferred by an indirect interpretation of provisions of law concerning estoppel and preclusion. The Rabbinical Court's powers are granted to it by virtue of the Rabbinical Courts Jurisdiction Law and they cannot be added to by an indirect interpretation of statutory provisions, the purpose of which is not the vesting of power. Moreover, it has already been held (in Sima Levy Case, ibid, p. 618-19) that the element of preclusion emerging from section 15(d)(4) of the Basic Law: the Judiciary was not intended to vest in the Rabbinical Court subject matter jurisdiction that is not vested in it by virtue of the Rabbinical Courts Jurisdiction Law. The said preclusion is based on the assumption that the matter being adjudicated by the Rabbinical Court is of the type that are within the parallel jurisdiction of the civil court and Rabbinical Court, and regarding the latter, jurisdiction is conclusively consummated if both parties have agreed to it. In those circumstances, and only in them, a party's prior agreement or silence, or subsequent denial of jurisdiction, might lead to preclusion with respect to a lack of jurisdiction argument in the High Court of Justice - that and nothing more. An interpretation that takes the doctrine of preclusion out of context, and assumes the existence of a potentially unlimited Rabbinical Court subject matter jurisdiction, the final consummation of which is dependent only upon the parties' agreement, is directly opposed to the principle of legality, upon which the concept of democratic government is based. It is inconsistent with the subject matter jurisdictions vested by statute in the arms of government, including the judicial system.

Alternative Decision-Making Systems

20.       The need of various different circles in the religious world to entertain alternative systems for the resolution of disputes is proper and recognized. Indeed, alternative rabbinical judicial systems that are not associated with the state rabbinical judicial system, which decide disputes between litigants in the community, are recognized. They can be granted powers to act as arbitrators by agreement of the parties. The need of different communities for alternative dispute resolution systems specific to them can be met by reference to internal arbitration frameworks that are not part of the state judicial system, within which disputes can be settled by virtue of the parties' agreement. This alternative course to litigation in the state judicial instances can be developed and strengthened in accordance with the different needs and preferences of the communities. This was considered by Justice Zamir in the Katz Case (ibid, p. 606), who stated:

"As is known, there are still observant Jews who prefer to litigate in matters of property according to religious law before a religious court rather than the state court. The state's law does not preclude that, if both parties to the dispute so desire, and it is even willing to give the force of arbitration to such litigation, if the litigants fulfil the provisions of the Arbitration Law. Indeed, in practice, such courts exist in various communities around Israel, not by virtue of state law or as official institutions but as private entities. That is, for example, the case of the rabbinical court of the Edah Chareidis [the Haredi Community] in Jerusalem. However… in these cases we are not dealing with a private entity but a state court, and the law applies to it just as any other of the state's courts. Like any court, in fact, like any government agency, the Rabbinical Court is also subject to the principle of legality, meaning that it has nothing other than what was granted to it by the law… In this respect, the Rabbinical Court in Jerusalem is distinguished from the rabbinical court of the Edah Chareidis in Jerusalem. The Israeli Rabbinical Court, which has jurisdiction in accordance with the Basic Law: the Judiciary, is not like one of the rabbinical courts of the Jewish communities in the Diaspora. Unlike them, it has the power and authority of a government institution. So too, unlike them, it is also subject to the restrictions that apply to any government institution".

Consensual Resolution – Looking to the Future and to the Past

21.       The scope of the Rabbinical Courts' subject matter jurisdiction to decide a dispute by virtue of the parties' agreement outside the framework of the law looks to the past and the future. It calls into question the validity of the Court's rulings based on the parties' agreement outside the scope of the statute, not merely henceforth, looking to the future, but also with respect to the past. The outlook to the future seeks to find a binding definition of the limits of the Rabbinical Court's jurisdiction and to strictly observe those limits hereafter. However, the outlook to the past calls into question the binding legal validity of the Rabbinical Court's decisions that have been made over the years by virtue of the parties' agreement as aforesaid. That issue is far from simple; there is no need to decide it here, and it will wait until its time comes.

From the General to the Particular

22.       Let us return to the respondent's suit against the petitioner in the Rabbinical Court and examine whether it is within the subject matter jurisdiction of the Rabbinical Court; the test of jurisdiction depends on the nature of the cause of action, and whether the cause falls within the jurisdiction of the Rabbinical Court.

The Cause of Action – Enforcement of a Contractual Indemnity Clause

23.       The respondent's cause of action in the Rabbinical Court is the enforcement of a contractual clause concerning property, which is contained in the divorce agreement that was made between the couple for the purpose of the divorce proceedings. It provided that if the respondent were sued for an increase in child support and the satisfaction of any of the children's needs or if a stay of exit order was granted at the initiative of the wife, then the petitioner would compensate him, in the language of clause 4(e) of the agreement, with half the property. That provision is also mentioned in clause 5 of the agreement, which is headed "Indemnification", and according to the substance of the provision, and also its location and wording, it is an indemnity clause. The respondent sues for the enforcement of a property condition for his indemnification due to a breach of contract by the wife, and he gave expression thereto by heading his claim as one for "specific performance". That is to say, we have here a property claim for the enforcement of the contractual indemnity clause in a divorce agreement that received the effect of a judgement of the Rabbinical Court and further to which the parties' divorce was completed.

The Rabbinical Court's Jurisdiction to Adjudicate a Property Claim for the Breach of a Contractual Indemnity Clause in a Divorce Agreement after the Parties' Divorce

Does the respondent's suit, according to its cause, fall within the scope of one of the sources of the Rabbinical Court's jurisdiction? Because of the great similarity between the instant matter and the case of Sima Levy, we shall draw guidance and direction from that case.

 

 

Original – Primary Jurisdiction

24.       The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce, as provided in section 1 of the Rabbinical Courts Jurisdiction Law, does not apply in the instant case because the subject of the suit is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is, no longer involved. Nor is it a matter "connected with a divorce suit", including support for the wife and children, within the meaning of section 3 of the Law. After divorce, a property claim in respect of the breach of an indemnity clause is not connected with the divorce suit, which has ended and no longer exists. The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce judgment, based on a divorce agreement. The cause is based on the breach of a divorce agreement after the award of the divorce and completion of the couple's divorce, and such a new cause is naturally not to be bound up with the matters that were in the past connected with the divorce suit.

With regard to the property cause of action, which surrounds the breach of an indemnity clause of a divorce agreement, the Rabbinical Court does not have jurisdiction by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council and the Succession Ordinance. Section 9 of the Rabbinical Courts Jurisdiction Law raises the question of whether jurisdiction can be vested in the Rabbinical Court by consent in a matter included in its parallel jurisdiction after completion of the divorce, or whether its jurisdiction pursuant to that provision is limited solely to matters within its parallel subject matter jurisdiction that arise in connection with, and until, the divorce and its completion, but not afterwards. Whatever the answer to this question, it is in any event clear that the subject matter jurisdiction pursuant to section 9 is limited solely to the matters mentioned therein, that is, matters of "personal status" as defined in the Palestine Orders in Council and the Succession Ordinance. In a dispute that is not within the bounds of those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court (Schiffman, ibid, vol. I, p. 37; Jane Doe Case, ibid, p. 812). The power of the parties' stipulation is restricted solely to the matters defined by the statute (MF 358/89 Zalotti v. Zalotti PD 43(4) 41, 42; Porat, ibid, p. 510).

Clause 11 of the divorce agreement in this matter looks to the future, and provides that if differences arise between the couple after the divorce, then they undertake to bring their claims solely in the Rabbinical Courts. That agreement is effective only to vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law in respect of matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. A property claim for the enforcement of a contractual indemnity clause in a divorce agreement is not a matter of personal status within the meaning of the Palestine Orders in Council or the Succession Ordinance, and thus, the parties' contractual agreement in respect of such a dispute cannot vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law.

The Rabbinical Court therefore does not have original jurisdiction to adjudicate the respondent's claim.

"Ancillary" Inherent Jurisdiction

25.       Does the Rabbinical Court have "ancillary" inherent jurisdiction to adjudicate the respondent's claim? The answer is in the negative.

            In the instant case, the Rabbinical Court's ancillary jurisdiction is irrelevant insofar as it relates to the revocation of a divorce award because of a defect in the making of the divorce agreement. It is not a defect of fraud, mistake, deceit, duress or similar that occurred in the making of the agreement and that might have given the Rabbinical Court ancillary jurisdiction to consider its revocation.

            Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after granting the divorce judgment that allegedly justifies revoking the divorce agreement and the divorce judgment in order to achieve a just result. On the contrary, the respondent's suit is for the specific performance and enforcement of the divorce agreement, not its revocation. Although, in the Great Rabbinical Court, the respondent pleaded that his suit was to revoke the divorce agreement because, according to him, the Get had been given by mistake (the Great Rabbinical Court's decision of May 4, 2003). These arguments were made as an "embellishment" at a late stage of the trial and do not reflect the real cause of action; the motion to revoke the divorce agreement and the act of divorce is inconsistent with the respondent's claim in his suit to compensate him with half the property (the apartment, the contents and the gold), which is nothing other than a claim for the enforcement of the divorce agreement (cf. CA 105/83 Menashe v. Menashe PD 38(4) 635; Yadin, The Contracts (Remedies for Breach of Contract) Law 5731-1970, Second Edition, 5739, p. 44).

            Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction in this case. The Regional Rabbinical Court had granted a final and unconditional judgment and awarded the effect of judgement to the divorce agreement. Indeed, the divorce agreement does contain an indemnification provision, which by its nature looks to the future, but this fact cannot transform a judgement that gave effect to a divorce agreement into a judgment that is not final, leaving the Rabbinical Court with jurisdiction that has not yet been exhausted to continue adjudicating with respect to the divorce agreement's future performance in this property matter. A financial-property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law (see Sima Levy Case, pp. 607-608; CA 468/85 Dondushanski v. Don PD 40(2) 609; D. Bar Ofir, Execution - Proceedings and Law (Sixth Edition, 2005, pp. 164-5)).

            Nor has the Rabbinical Court acquired jurisdiction to hear this matter by virtue of the doctrine of "continuing jurisdiction". It should be kept in mind, that continuing jurisdiction is vested where an instance has tried a particular matter in the past and, in special circumstances, a need has arisen to vacate or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based such, for example, in matters of child support and custody. The instant case is fundamentally different. The motion does not seek to modify or revoke the divorce agreement made between the parties. On the contrary, it seeks to enforce the agreement, and such a claim has no place within the continuing jurisdiction vested in the Rabbinical Court. A decision on property matters is a final one and not a matter for continuing jurisdiction, as the Court stated in Sima Levy (Justice Cheshin, ibid, p. 611):

                        "As distinct from decisions concerning the payment of support or child custody – which by their nature are not final and the doctrine of continuing jurisdiction applies to them – a decision on a property matter is in principle a final one" (emphasis added).

            The property aspect of the divorce agreement, including the indemnification clause, and the divorce judgment that gave it effect, are therefore not within the Rabbinical Court's continuing jurisdiction.

            And finally, the Rabbinical Court does not have ancillary jurisdiction to adjudicate the new cause that arose following the divorce agreement in order to interpret the agreement. Firstly, the Rabbinical Court, having completed and exhausted its power to rule on the matter of divorce, no longer has ancillary power to interpret the divorce agreement or the divorce judgment (cf. HCJ 897/78 Yigal v. The National Labour Court, PD 33(2) 6, 7; CA 5403/90 The State of Israel v. RAM Revhiat Ibrahim PD 46(3) 459). Moreover, in the instant case, the question of the agreement’s interpretation hasn’t risen as such, but a claim for its enforcement has been brought instead. Hence, the Rabbinical Court does not have ancillary jurisdiction in this respect either.

            In conclusion: the Rabbinical Court does not have primary original jurisdiction, or ancillary inherent jurisdiction, to adjudicate a property claim for enforcement of a contractual indemnification clause in a divorce agreement that has given the effect of judgement, once the couple's divorce has been completed.

The Rabbinical Court's Jurisdiction by Virtue of Consent

26.       As can be recalled, clause 11 of the divorce agreement provides that differences between the couple after the divorce are to be adjudicated solely in the Rabbinical Courts. The couple's agreement as such cannot vest the Rabbinical Court with jurisdiction where there is no legal source for it. The agreement in this case concerns something that is not a matter of personal status according to section 9 of the Rabbinical Courts Jurisdiction Law, and it was therefore given for this purpose outside the scope of the law, and is ineffective.

            Indeed,

                        "where the subject of the litigation is not within the jurisdiction of a particular judicial entity, no agreement in the world has power to grant the entity jurisdiction that the statute has not given it; it is the statute that gives and it is the statute that takes away" (Sima Levy, p. 617).

            The Regional Rabbinical Court's decision of June 18, 2002 and the Great Rabbinical Court's decision of May 4, 2003, according to which the Rabbinical Courts have jurisdiction in principle to try the claim by virtue of the law, are inconsistent with its provisions.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Arrangement

27.       It was further argued that clause 11 of the divorce agreement is an arbitration provision that vests the Rabbinical Court with power as an arbitrator to adjudicate the respondent's claim of a breach of the agreement's indemnification provision. Although not strictly necessary, we have considered the question in principle of whether a Rabbinical Court can be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. We have answered that question in the negative and the answer is applicable to the case herein.

            In the instant case, the conclusion that the Rabbinical Court lacks jurisdiction to try the matter as an arbitrator is also reinforced by another reason. Studying the contents of clause 11 of the divorce agreement shows that it cannot be construed as an arbitration clause, equal to an "arbitration agreement" between the parties. It is well known that the power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. Without an arbitration agreement, no arbitration arises. An "arbitration agreement", according to the Arbitration Law, is "a written agreement (between parties) to refer to arbitration a dispute that arises between them in the future, whether an arbitrator is named in the agreement or not" (section 1 of the Arbitration Law). The condition precedent for arbitration is therefore the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement (ALA 4928/92 Aziz Ezra Haj v. Tel Mond Local Council PD 47(5) 94; Ottolenghi, ibid, pp 9-41).

            In this case, the parties undertook to refer any disputes arising between them after the divorce solely to the Rabbinical Courts. No intention can be inferred from that agreement to refer such disputes to the Rabbinical Court qua arbitrator. In Jane Doe (para. 6 of Justice Barak's opinion), as in the case herein, the couple mistakenly believed that their consent to the Rabbinical Court's adjudicating disputes connected with the divorce agreement could vest it with power to decide as a state judicial instance, rather than as an arbitrator. Indeed, the wording and contents of clause 11 of the divorce agreement do not demonstrate the parties' intention to treat it as an arbitration clause purporting to empower the Rabbinical Court to act as arbitrator. Consequently, even if we assumed that the Rabbinical Court could be empowered to act as an arbitrator in matters in which it has no original or ancillary jurisdiction by virtue of the law, there is still no effective arbitration agreement, as pleaded.

A Note before Closing

28.       The issue of the Rabbinical Court's power to adjudicate by virtue of the parties' agreement, outside the scope of the law, has arisen in earlier contexts in the past, and although different opinions have been expressed in such respect by the courts, no binding decision has been necessary in connection therewith. This absence of a ruling has permitted the continuation of a procedural practice that is inconsistent with the organizational structure of the courts and the division of powers between them in accordance with state law. This custom has enabled a judicial practice that is inconsistent with the principle of the administration's legality and the legality of the judicial system. The time has come to move from the stage of expressing an opinion to the stage of making a ruling, which is necessary to ensure the proper function of the judicial system within the scope of its powers, and thereby to protect the basic foundation that defines the boundaries of its activity based on the principle of legality and the rule of law. This will not harm, in a any way, the need and ability of various social groups to entertain alternative resolution systems outside the state judicial instances, based on the principles of arbitration regulated by law or on the basis of other agreed and recognized rules of procedure. However, at the same time, it is necessary to safeguard, and protect against blurring the boundaries between the state judicial systems and alternative resolution systems that are built on the parties' agreement, in order to protect the proper operation of the different arms of the judicial system and the public's confidence in the way in which its powers are exercised and its judgments.

Conclusion

29.       By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification clause in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the Regional Rabbinical Court and the Great Rabbinical Court in the respondent's claim are void. The result is that the order nisi that has been awarded should be made absolute. The respondent shall bear the petitioner's professional fees in the sum of NIS 12,000.

 

Vice President (Ret.) M. Cheshin

 

            I concur.

 

Justice S. Joubran

            I concur.

Therefore, held as stated in the opinion of Justice Procaccia.

Awarded today, this eighth day of Nissan, 5766 (April 6, 2006).

 

___________________	___________________	___________________
Vice President (Ret.)	Justice	Justice

 

 

 

 

 

 

7.     But after having said all this, in order to strike down the Basic Law (Temporary Provision) a stronger juridical entrenchment than that which exists would be required, even though I would not padlock the door with a view to the future; in the circumstances there is not the critical mass which would entail its nullification. My colleague Justice Naor (in para. 3 of her opinion) stated that “indeed creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of a temporary provision.” I would leave this pending future investigation; for example, in the United States an amendment to the Constitution (under art. 5 thereof) necessitates an extensive, drawn-out procedure, that combines Congressional decisions with the consent of the States. But I certainly can agree with Justice Naor, that if the thing is done and the temporary provision is passed, it must be done sparingly, and as far as I am concerned, exceedingly sparingly. In any case at the present time and in the present case and in the existing juridical situation, we cannot dignify the Knesset more than it dignifies itself, and therefore we cannot grant the petition.

I will conclude by concurring in the words of my colleague the President with respect to the need for completing the constitutional enterprise. I will say clearly and somewhat stridently: the main reason for it not having been completed until now, so it seems to me – and let us recall that for nearly two decades, not even one basic law has been passed, despite efforts having been made – is not because of what will be written in the Constitution, but apparently because of the question of who will interpret it. The last basic laws came into being in 1992, but in 1995 a ruling was handed down in the case of Bank Mizrahi v Migdal [1] which determined the constitutional authority, and since then there has been a “silence of the constitution” in the operative sense, as opposed to various proposals. It seems that parts of the Knesset are not happy with the constitutional authority of this Court, and are afraid that additional constitutional texts will add to its power. I will merely say that not only is the power of judicial review exercised by this Court cautiously and sparingly, but whoever looks into the matter will find that when it has been exercised, it has always been in areas that for the most part are not the areas that worry those who are concerned. We live in a world of appearances and public and media-related perceptions that feed off themselves. It would be good if the scrutiny would sometimes be directed at the substance of issue, if one may make this modest request, even though criticism is of course legitimate, and also in the court itself there are majority and minority decisions. But scrutiny is always a good thing, so that the criticism can follow and not come before. Why do I believe in the importance of completing the constitution, although we in fact live in a quasi-constitutional regime? For educational reasons, to perpetuate the values of Israel as a Jewish and democratic state, as a text that will teach and will constitute a historical fountain spouting the values of the nation and the individual as one. The Declaration of Independence, which constitutes a major source of interpretation by virtue of s.1 of Basic Law: Freedom of Occupation and s.1 of Basic Law: Human Dignity and Liberty, can fill some of these roles (see the article by myself and N. Solberg, “The Declaration of  Independence of the State of Israel – After it has (Almost) Waxed Old, Shall It  Have Pleasure”, Netivei Mimshal Umisphat 179, 191-195 (Hebrew)). But a complete constitution would be an upgrade and an empowerment on the educational plane and for the long term, and for this reason it ought to come into being.

9.     As stated, in the circumstances I concur in the ruling of my colleague, the President.

 Justice E. Arbel

I concur in the judgment of my colleague, the President.

Vice President E. Rivlin

I concur.

 

Justice A. Grunis

I concur.

 

The petition was denied as stated in the ruling of the President D. Beinisch. There is no order for costs.

 

3 Nissan 5771.

7 April 2011.

 

 

The Supreme Court sitting as a Court of Civil Appeals

CA 4926/08

 

Before:                                                The Honorable Justice E. Rubinstein                                                                                                 

The Honorable Justice S. Joubran                                                      

The Honorable Justice N. Hendel

 

The Appellants:                      1.    Nashef Wael & Co.

                                               2.    Abd Elkader Nashef

                                               3.    Tibi Muneer

                                               4.    Munder Haj Yichye

                                               5.    Hadran Ltd.

 

v.

 

The Respondent:                    The National Water and Sewage Authority

 

An appeal against the judgment of the Haifa District Court sitting as a Court of Water Affairs dated March 13, 2008, in Appeals Committee 111/01 and in Appeals Committee 620/05, given by the Honorable Judge R. Shapira, and Representatives of the Public Mr. S. Shtreit and Mr. G. Hermelin.

 

On behalf of Appellants 1-4:      Adv. Tibi Taufik

 

On behalf of Appellant 5:           Adv. Eyal Sternberg; Adv. Ortal Mor

 

On behalf of the Respondent:    Adv. Limor Peled

 

JUDGMENT

 

Justice S. Joubran:

 

1.The appeal presented before us addresses the Water (Extraction Levy) Regulations, 5760-2000 (hereinafter: the "Water Regulations" or the "Regulations"), the legality thereof and the validity of the process of promulgation thereof. I shall present the matters hereinbelow in an orderly manner.

 

Normative and Factual Background

 

2.On February 4, 1999, the Knesset adopted the State's Economy Arrangements (Legislative Amendments to Attain the 1999 Tax Year Economic Policy and Budget Goals) Law, 5759-1999. In the framework thereof, the legislator indirectly introduced amendments to the Water Law, 5719-1959 (hereinafter: the "Water Law"). The amendment to the Water Law resulted in significant changes in the regulation of water extraction, motivated by the desire to create a network of incentives, both positive and negative, for the extraction of water from a wide range of sources, in order to optimize the level of water utilization,  in light of the regional and national water shortage. Since, the historical background of Israel's water economy, which created the need for legislative amendments, was elaborately described in HCJ 9461/00 The Jordan Valley Water Association, Collective Agricultural Association Ltd. v. The Minister of National Infrastructures (not published, December 12, 2006), it is not necessary to elaborately address it again here (for elaboration, see: ibid, paragraphs 5-14), or to address all of the aspects of the said amendment. Suffice it to say that the amendment of the Water Law focused on Sections 116-124. The dispute in this appeal revolves around Section 116 which, in its previous wording, is relevant to the case at hand, prescribed as follows:

 

Extraction 116. Levy

(a)The Minister of National Infrastructures, with the consent of the Minister of Finance, upon consultation with the Water Council, and with the approval of the Knesset's Finance Committee, shall determine a levy to be paid by water extractors to the State's Treasury (hereinafter – an Extraction Levy) (b)The Extraction Levy shall be imposed on all extractors of water from a specific water source and shall be calculated in accordance with the units of the volume of the extracted water; the extent of the levy shall reflect the regional and national shortage of water, and may be different for each water source and with respect to each of the purposes of the water and the uses thereof. (c)The Extraction Levies shall be updated in the same manner the water tariffs are updated pursuant to Section 112(a), mutatis mutandis. (d)The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being determined.

 

In 2007, Section 116 was re-amended and extensive changes were made in the framework thereof, however the wording that is relevant to the case at hand is the wording quoted above. By virtue of this section, and in accordance with the authority vested therein in sub-section (a), the Minister of National Infrastructures promulgated the Water Regulations, in which the extent of the extraction levies was determined. A distinction was made between consumption and extraction purposes (residential, agricultural and industrial consumption) in the case of the Coastal Aquifer, while a uniform levy was prescribed for all of the consumption and extraction purposes in the case of all the other sources.

 

3.In the case before us, the contents of the Regulations do not bear any special significance, but the significance lies in the manner in which they were adopted and the extent to which the secondary legislator abided by the terms and conditions prescribed in Section 116(d) of the Water Law. The section provides that the water extractors and consumers must be given an opportunity to voice their arguments prior to the determination of the extraction of levies. Meaning, Section 116(d) requires the secondary legislator to grant the water extractors and consumers an opportunity to voice their arguments before determining the extent of the extraction levy with respect to a certain water source. In the case before us, such an opportunity was indeed granted, after a notice, regarding the extraction levy that was about to be determined, was published in Hebrew in the national printed press. The Appellants, however, who possess extraction licenses, did not voice their arguments regarding the extraction levies that were determined in the Regulations, at the designated time. The Water Regulations were published on July 30, 2000, and annual bills, based on the extent of the levies determined therein, were sent to the Appellants for the volume of water approved in the extraction licenses they possess. The said charges related to the years 2000-2005.

 

The Dispute between the Parties and the Litigation To Date

 

4.The Appellants filed two appeals to the Haifa District Court, sitting as a Court of Water Affairs (Appeal Committee 111/01 and Appeal Committee 620/05), which were heard together, and in which they argued against being charged water levies during 2000-2005, pursuant to the new Water Regulations.

 

The Appellants argued, inter alia, that the Water Regulations are ab initio null and void and lack any validity towards them since they were not published in the Arabic press. As such, Appellants argue they were de facto denied their right to voice their arguments regarding the contemplated levies prior to the promulgation of the Regulations. They argue that since notice of the Regulations was not published in the Arabic press, arguments unique to the Arab population were not presented to the drafters of the Regulations, and therefore the Regulations are ultimately flawed in that they ignore considerations that are unique to the Arab population of extracters and consumers, in general, and to the Appellants, in particular. It is alleged that the importance of the right to be heard (audi alteram partem) is elevated in this case, due to the severe impairment to property rights entailed in the adoption the Regulations. The Appellants wished to convince the District Court that the lack of publication in Arabic, amounts to prohibited discrimination. The Appellants further argued against the legality of the extraction levy charges in their case, because they were imposed via a flawed process, since the charges for 2002-2004 were retroactively imposed in 2005, contrary, so they claim, to the annual charging procedure. Additionally, Appellants complained that they continued to be charged after the suspension of the extraction licenses in their possession, since, so they claim, upon the suspension of their licenses, they cease being extractors for the purpose of the extraction levy. In this matter, the Appellants added that once the collection processes were stayed and the licenses were suspended, they should not have been charged with a special levy for extracting water without a license. Furthermore, according to the Appellants, the Respondent should have considered the water loss, i.e., the amount of water that is lost during the extraction process, as a result of the archaic extraction system in their possession. The Appellants stated, in this context, that the Respondent should assist them in renovating and maintaining that system, rather than charging expensive levies. The Appellants further claimed in this matter that, due to the state of the agricultural sector, they had not managed to exhaust the license's quota, while the Respondent charges as per the amount approved in the extraction license.

 

5.The Respondent, on the other hand, claimed that the Appellants had extracted water for many years without paying the levy and the ancillary payments. According to the Respondent, the imposition of the levies upon all of the extractors was done by law and not by the Regulations. The Regulations only prescribe the rate of the levy. The Respondent further claimed that there is no obligation in the law to publish the adoption of the Regulations in Arabic and that the Appellants did not demonstrate that publishing in the national and Hebrew press is insufficient or that it prejudices the Arabic speaking population. The Respondent further claims that the Appellants did not establish a factual basis which could support their claim regarding prohibited discrimination. Finally, the Respondent claims that if the Appellants were of the opinion that the records of the actual extractions were mistaken, they should have taken care of that immediately, informed the Respondent, and disputed the amounts specified in the bills when they were prescribed or charged, and they cannot raise such a claim at this stage.

 

6.On March 13, 2008, the Court of Water Affairs (the Honorable Judge R. Shapira and Representatives of the Public S. Shtreit and G. Hermelin) denied the appeals, after ruling that the authority's act of publishing the invitation regarding the Regulations only in Hebrew, does not deviate from the zone of reasonableness. The Court reviewed the case law that addresses the status of the Arabic language and reached the conclusion that in the case presented before it, there is no obligation to publish the invitation in the Arabic language press. Appellants' claim regarding prohibited discrimination was also denied, since it was not proven that publishing only in the national press prejudices the Arab population. The Court stated, in this context, the purpose of the publication is to reach the broad public, and just as there are Hebrew speakers who do not read Hebrew newspapers, there are Arabic speakers who do read Hebrew newspapers, and therefore, so it was ruled, one cannot accept the argument that the publication in the national press, prejudices the entire Arab population. The Court additionally ruled, after hearing the merits of their arguments and determining that they are irrelevant to the matter of prescribing the extracting levies, that even had the invitation been published in the Arabic press and the Appellants would have consequently voiced their arguments against the Regulations, this would not have changed the Regulations that were promulgated or the water levy charges that were imposed thereon.

 

The Appellants' claims regarding the amounts of extracted water and the water loss were also denied, as it was ruled that they were irrelevant to the matter at hand. The Court ruled that to the extent that the Appellants extract less water than that stated in the extracting license, it is presumed that they shall update the Respondent so that it shall update the charges in accordance with the actual consumption. The same applies with respect to the alleged loss, as it was ruled that the levy is calculated based on the amount of water extracted, and if the system is inefficient, it is the Appellants', not the Respondent's, duty to improve the system and take action to repair it. As for the Appellants' argument regarding the delayed arrival of the bills, the Court ruled that it is incumbent on the Appellants to update the authority of their current address. It was further ruled that the Appellants know that they possess water extraction licenses and that they are required to pay for the extraction of water, and therefore, if and to the extent the notices did not arrive on time or to the correct location, they should have approached the authority, inquired about the delay, and updated their mailing address. Additionally, the Court was convinced that the bills were sent to the Appellants each year.

 

And now, to the appeal before us.

 

The Parties' Arguments

 

7.In the framework of the appeal, the Appellants reiterate some of the arguments they raised before the Court of Water Affairs. Additionally, they claim to an error in the judgment, as the legal analysis therein relies on the current wording of Section 116(d), while the Regulations were promulgated by virtue of the authority vested by the previous wording of Section 116(d), and they emphasize that the law obligates granting a right to be heard, and that this is not a right granted to the general public, but rather to the limited public of water extractors and consumers of a relevant water source, who could be adversely affected by the levy.

 

8.The Respondent, on the other hand, claims that the Court's reliance on the new wording of the section is irrelevant to the rulings in the judgment, since both wordings essentially address the same matter, i.e., granting the water extractors and consumers the right to be heard, and the two wordings differ in the entity responsible for determining the extent of the levy and which is obligated to grant the opportunity to voice the arguments. The Respondent also claims that there is no duty to publish in Arabic, and that in cases where the legislator wished to impose such a duty, it did so explicitly. It was further argued that that even if there is such a duty, non-compliance therewith does not result in the revocation of the Regulations. The Respondent further argues that the Regulations apply to the broad public of water extractors and consumers, and not, as the Appellants argue, to a limited public. It was argued, in this matter, that the right to be heard in the case of a general change is not the same as the right to be heard in the case where the change’s effects are personal and direct. Furthermore, the Respondent claims that even were it to be ruled that the Appellants' right to be heard was violated, application of the relative voidness doctrine to the case at hand leads to the result that the Regulations should not be revoked, since, as ruled by the Court of Water Affairs, the Appellants' arguments against the Regulations would not have changed them. The Respondent also mentions in this context, that, if and to the extent the Appellants' principled argument were to be accepted, there is yet an additional consideration against the revocation of the Regulations – the Appellants' indirect attack of the Regulations. The Respondent also draws attention to the severe damage that shall be caused to the water economy if the Regulations are revoked.

 

9.During the hearing before us, we suggested that the parties communicate and reach a settlement regarding the extent of the Appellants' accumulated debt. On April 24, 2012, the parties' attorneys informed us that Appellant 4 reached an agreement with the Respondent regarding payment of his debt, and his specific matter, therefore, is no longer before us. The discussions between Appellants 1-3 and Appellant 5 and the Respondent did not bear fruit, and therefore we must rule in the matters raised in the parties' arguments that were presented above.

 

Discussion

 

10.The main question underlying the appeal before us relates to whether or not there was a duty, pursuant to Section 116(d), as worded at the time of the publication of the Regulations, to also publish the invitation to voice arguments against them, in Arabic. The answer to this question is divided into two. First we shall rule whether or not there is a principled obligation to publish the invitation in Arabic. If and to the extent our conclusion shall be that there is indeed such an obligation, we shall examine the consequence of the violation thereof in the case before us, in terms of the relief.

 

Prior to discussing the central issue, I shall note that I do not find merit in the Appellants' other arguments and I agree with the Court's conclusions in its judgment on those matters. As for the wording of the section upon which the Court relied, I find that there is no material difference between the two wordings in terms of the question of principle that the Appellants raise, and in my opinion the outcome that flows from one wording, is also relevant to the other, and vice versa.

 

The Duty to Hear the Water Extractors and Consumers

 

11.The rules of natural justice, including the right to be heard (audi alteram partem rule), were, as most fields of administrative law, developed through case law. In the framework of these rules, it is a known rule that the administrative authority is obligated to grant an individual the opportunity to voice his arguments prior to reaching a decision that may prejudice him (see: HCJ 4112/90 The Association for Civil Rights in Israel v. GOC Southern Command, PD 44(4) 626, 637-638 (1990); HCJ 654/78 Gingold v. National Labor Court, PD 35(2) 649, 655 (1979); HCJ 113/52 Zachs v. The Minister of Trade and Industry, PD 6(1) 696, 703 (1952)). The right to voice arguments, however, is not an absolute right, but rather, is a right that is subject to exceptions that were outlined and formulated over the years (see, for example, HCJ 7610/03 Yanuh-Jat Local Council v. The Minister of Interior, PD 58(5) 709 (2004); HCJ 598/77 Deri v. The Parole Board, PD 32(3) 161, 165 (1978); HCJ 185/64 Anonymous v. The Minister of Health, PD 19(1) 122, 127 (1965); HCJ 3/58 Berman v. The Minister of Interior, PD 12(2) 1493 (1958) (hereinafter: "Berman")). In Berman, it was ruled that the right shall be applied according to the criterion of adverse affect. According to the criterion, the right to voice arguments exists de facto for whoever is or may be adversely affected by the authority's actions (see: Berman, page 1508; Baruch Bracha "The Right to be Heard: In Regulation Promulgation Procedures As Well? Following HCJ 1661/05 Hof Azza Regional Council v. The Knesset" Moznei Mishpat 6 428 (2006) (hereinafter: "Bracha, The Right to be Heard"). This is the rule, and it has its exceptions. One of the exceptions relates to the proceedings of secondary legislation. As early as in Berman, it was ruled that the duty to hear arguments "does not apply to legislative actions, or to actions of a governing-sovereign nature, in the proper sense of this term" (Berman, 1509; in this context, see also: HCJ 335/68 The Israel Consumer Council v. Chairperson of the Commission of Inquiry for the Supply of Gas, PD 23(1), 324, 334 (1969); Baruch Bracha Administrative Law 223 (Volume A, 1987); Yoav Dotan Administrative Guidelines 125-126 (1996); Raanan Har-Zahav The Israeli Administrative Law 292 (1996)).

 

12.The ruling in Berman, pursuant to which the right to be heard does not apply in legislative procedures, in general, and in secondary legislative procedures, in particular, has been reinforced over and over again, and has recently been addressed again in the framework of the petition filed by the Gush Katif evacuees against the Disengagement Plan Implementation Law, 5765-2005, in which, inter alia, the argument regarding not granting an opportunity to voice arguments against the Disengagement Plan Implementation (Gaza Strip) Order, 5765-2005, and the Disengagement Plan Implementation (Northern Samaria) Order 5765-2005, was discussed again (see HCJ 1661/05 Hof Azza Regional Council v. The Knesset of Israel PD 59(2) 481, 719-728 (2005)). In that judgment it was ruled that the evacuation orders have legislative effect, and as such are not subject to the duty of a hearing prior to being promulgated. In this context it was emphasized that:

 

"With regard to the hearing obligation in the case of secondary legislation, the longstanding ruling in Berman is the law currently presiding in Israel, and while there are some who have expressed reservation - and there is merit to the criticism, at least in certain types of secondary legislation – the operative rule has never been changed. The Petitioners are of the opinion that it is time for a change; however we do not find, that the matter before us warrants such a change." (ibid, paragraph 427).

 

13.The essence of the matter is that according to Israel's common law, in the framework of which the rules of administrative law, including the rules of natural justice, are prescribed through case law, the authority's obligation to grant any party who could be adversely affected by its actions an opportunity to voice arguments, does not apply in a procedure of promulgating regulations of legislative effect. This exception has been subject to much criticism both in case law and in legal literature (see: LCA 3577/93 The Israeli Phoenix v. Moriano, PD 48(4) 70, 86 (1994); Aharon Barak Judicial Discretion 487 (1987); Yitzhak Zamir The Administrative Authority Volume B 1047-1048 (Second Edition, 2011); Bracha, The Right to be Heard, on page 429), and it has even been presented as an issue of principle that has not yet been ruled upon (see: HCJ 6437/03 Tavori v. The Ministry of Education and Culture, PD 58(6) 369, 378 (2004)). However, the exception still stands (see: Bracha, The Right to be Heard, page 431). Hence, only in cases in which there is an explicit statutory provision which imposes upon the authority an obligation to allow the voicing of arguments in a secondary legislating procedure, or that grants the said right to voice arguments, will the individual, who is adversely affected by the regulations, be entitled to voice his arguments, all in accordance with the terms and conditions appearing in the law. This is also the case in the case before us: The origin of the duty to allow voicing arguments in the framework of the promulgation of the Water Regulations – the right the Appellants are claiming – is not under the purview of the common law right, which, as mentioned, excludes secondary legislation procedures, but rather is under the provisions of Section 116(d) itself, which is not merely declaratory, in the sense that it declares a right that already exists, but is rather constitutive, in the sense that it creates a right, which otherwise would not exist.

 

14.In light of the above, there is no doubt that in the case at hand, the promulgation of the Water Regulations pursuant to Section 116(a), as was previously worded, is subject to the Minister of Infrastructures' obligation to give the public that may be adversely affected by the regulations that prescribe the extent of the water levy, a proper opportunity to voice its arguments. The said Section 116(d) prescribes as follows:

 

(d)       The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being prescribed.

 

As can be seen, all that the section prescribed is the duty to grant the opportunity to voice arguments. The section does not regulate the manner in which the authority shall fulfill its duty. Questions as to the scope of the duty and as to what derivative duties derive therefrom also arise in this context. An extensive answer to the said questions is not required in order to resolve the principled and practical dispute in the case at hand. All we are required to rule on is whether the duty to grant an opportunity to voice arguments includes the duty to inform the relevant public of the anticipated promulgation of the Regulations and to invite them to voice their arguments with respect thereto; and if the answer is affirmative, we also shall address the question of the language of notification.

 

The Duty of Informing and its Manner of Performance

 

15.There is no dispute that there is no real substance to the right to voice arguments or to the duty to grant an opportunity to voice arguments, if the individual is not informed, at the relevant time, of the administrative procedure which may adversely affect or impact him. The realization of the right is intertwined with knowledge of its existence, and of the occurrence of the event that creates the circumstances upon which its realization depends. In the case at hand, in order to be able to voice arguments regarding the Water Regulations, the extractors and the consumers must be aware of their said right and of the fact that the minister is contemplating the promulgation of regulations with respect to which they are entitled, pursuant to the law, to voice their arguments, prior to their promulgation. However, the procedure in the case at hand is not the same as the procedure in cases in which the right to voice arguments is only granted to individuals. Contrary to a private hearing that is conducted due to the authority taking an action which could adversely affect or impact a known or limited number of individuals, a public hearing takes place when the action with respect to which the hearing is required adversely affects an undefined public or a large number of persons. As clarified above, according to Israeli law, in the case of the latter category of administrative actions, the right to voice arguments is granted, in general, only if the law explicitly provided therefor.

 

16.In any event, the nature of the hearing, whether private or public, along with other parameters, prescribes the manner in which it is conducted. In the context of our case, the means by which the existence of the hearing is brought to the attention of the interested parties – be it an individual to whom the authority's decision is personally addressed or, as in our case, a large group of individuals – also varies accordingly. For example, while it can be expected that the authority take action to locate a person whose license it wishes to invalidate and invite him to voice his arguments prior to a decision being reached, the same effort is not to be expected with respect to an administrative action by which potentially all of the citizens or an undefined public of persons could be adversely affected. In such cases, general publication might be sufficient. It is clear that if it were possible to personally inform each and every person who could potentially be adversely affected that would be ideal, however, this is not feasible when dealing with a broad public. It follows that publishing the matter via popular media channels, or by any other means to which the majority of the relevant public is likely to be exposed, could be sufficient.

 

17.Indeed, other than personally contacting each person who potentially could be adversely affected, every method entails certain inadequacies, yet it is clear that a publication inviting the public to voice arguments, which reaches the majority of the public, will result in a situation in which the arguments, or at least the majority of the arguments, that are relevant to the individuals who were not exposed to the publication, and did have the opportunity to voice their arguments, are voiced by others. One of the purposes of conducting a public hearing is to ensure that the authority has the information required to reach an informed and balanced decision based on the broadest possible relevant data available at that point in time. Therefore, in matters in which there is a duty to hear arguments, it is likely that most of the data relevant to reaching the decision, which the competent authority had not seen, will appear in the arguments raised by part of the public that wishes to exercise the right to be heard that was granted thereto, and thus the purpose of imposing the duty is realized.

 

18.In light of the above, it is my opinion that even if the manner in which the authority chose to inform the public, regarding the public hearing that is being conducted, does not ensure fully informing all of the individuals who may be adversely affected by the administrative action, this does not constitute a deviation from the scope of reasonableness, and does not sacrifice the purpose of the right to be heard. This is so, since, as mentioned above, in the absolute majority of cases, excluding a few exceptions, most of the claims that relate to the matter will be argued, and consequently, the data, or at least the majority of the data, necessary for reaching a reasonable and proportional decision that is based on a broad factual basis, will be brought to the authority's attention. This is also in the case at hand. The Respondent was not required to send each water extractor and consumer a personal invitation to voice arguments in order to fulfill its duty to inform. Therefore, Respondent's decision to publish the invitation to voice arguments in the press, in and of itself, does not, in principle, deviate from the scope of reasonableness.

 

Duty to Inform in Arabic

 

19.I have expressed the position that the duty to inform, in the context of publishing the invitation to voice arguments, does not require taking measures that would ensure perfectly universal notification. Obviously, it is desirable that the information, which is the subject of the publication, reach the entire public related to the matter, so that it can exercise its legally granted right to be heard. However, as was explained, the reasonableness principle does not demand this; there is no doubt that publication that can be assumed to reach the entire public related to the matter, shall be deemed reasonable. Another question in this context is whether the duty to inform includes the duty to adjust the content of the invitation to the Arabic speaking public, by means of publishing the invitation also in the Arabic press and in the Arabic language. In my opinion this question should be answered in the affirmative. I shall specify my reasons below. But beforehand, I shall briefly address the principled case law regarding the status of the Arabic language in Israel.

 

The Arabic Language in Israel

 

20.The Arabic language is, alongside the Hebrew language, an official language in Israel, by virtue of Section 82 of the Palestine Order in Council, 1922 (hereinafter: "Section 82"), a Mandate statute that provides as follows:

 

Official 82. Languages

All the ordinances, official notices and official forms of the government and all official notices of local authorities and municipalities in areas to be prescribed by order of the High Commissioner, shall be published in English, Arabic and Hebrew. Subject to any regulations the High Commissioner may promulgate, the three languages may be used in the Government offices and the courts. In the case of any contradiction between the English version of any ordinance or official notice or official form and the Arabic version or the Hebrew version, the English version shall prevail.

21.Section 82 was adopted into Israeli law in the Law and Administration Ordinance, 5708-1948 (hereinafter: the "Ordinance"). However, the requirement to use the English language was repealed in the framework of Section 15(b) of the Ordinance, and it was provided that "any provision in the law that requires using the English language is repealed," while the obligation to use Hebrew and Arabic was maintained, so that the official status of both languages as official languages was maintained. The ramifications of this status has not yet been fully clarified and in cases previously presented to this Court concerning the practical significance of Arabic’s status as an official language, the justices have differed in their opinions (see for example: HCJ 4112/99 Adalah -- Legal Center for Arab Minority Rights in Israel v. Tel Aviv Municipality, PD 56(5) 393 (2002) (hereinafter: "Adalah"); Justice Cheshin's judgment in LCA 12/99 Mar'ei v. Sabek, PD 53(2) 128 (1999) (hereinafter: "Mar'ei")). For example, in Adalah, which dealt with the use of the Arabic language on municipal signs, Justice D. Dorner was of the opinion that "the official status of the Arabic language is not expressed only in the uses specified in Section 82. The specification in the section is not an exhaustive list. The essence of the provision is the determination of the status of the Arabic language as an official language of the State of Israel" (on page 478). On the other hand, Justice (as was his title at the time) M. Cheshin was of the opinion that the status of the Arabic language as an official language does not, in and of itself, impose a duty upon the authorities to use it other than within the boundaries drafted in the section itself. President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs and ruled that the solution to the issue lies in the proper interpretation of the section authorizing the local authorities to post municipal signs, while striking a balance between the various purposes. Therefore, President A. Barak found that when interpreting the authority to post municipal signs, the balance between the special purposes of the Section (making the city and its streets accessible to the public, warning about traffic dangers, and the need for clear and legible signs), and the general purposes (the right to equality, the freedom of language and the uniqueness of the Arabic language compared to other minority languages, on the one hand; and the preferred status of the Hebrew language, and the importance of uniformity and national solidarity, on the other hand) "leads to the conclusion that Arabic writing should be added, alongside the Hebrew writing, on the municipal signs in the responding cities" (on page 419).

 

22.It appears that it will be difficult to infer from Adalah a general duty to use the Arabic language alongside Hebrew. Adalah does not extend beyond the boundaries of the narrower issue addressed therein, regarding the duty to add Arabic writing to municipal signs in mixed cities (see: HCJFH 7260/02 The Ramla Municipality v. Adalah, The Legal Center for Arab Minority Rights in Israel (not published, August 14, 2003)). It follows that the question regarding the ramifications of the status of Arabic as an official language remained unresolved and in the case at hand it requires our attention. The question at hand is whether the Respondent's duty to inform also includes the duty to inform in Arabic. While, as written above, Adalah does not have direct implications for this case, in my opinion, the issue presented before us is to be examined in accordance with one of the frameworks presented to resolve the issue in Adalah, as shall be specified below. I shall note, in this context, that I do not share the opinion expressed by the honorable Justice (as was his title at the time) M. Cheshin, in Adalah, that the status of the Arabic language and the ramifications thereof is a matter best left to the political system. The courts are the authorized interpreters of the law, and the case before us raises a question regarding the interpretation of a statute. Therefore, this is not a political matter that the court must refrain from addressing. Therefore, in the case at hand, we must ask whether to prefer President A. Barak's position and rule in the case at hand by interpreting Section 116 purposively, or rather to follow the path paved by Justice D. Dorner and analyze the implications of Section 82 on the case at hand? A third option is to cling to the language of Section 82 and examine whether the publication of the invitation to voice arguments falls within the boundaries of one of the alternatives therein, i.e. "ordinances, official notices and official forms".

 

23.It is my opinion that, in the circumstances of this case, all three options lead to the same outcome, and therefore we do not have to determine which is preferred, even though, in my opinion, the three are not necessarily mutually exclusive, as I shall clarify below. Indeed, theoretically there could be cases in which the results from applying the above methods will be different, and in such cases this Court would have to rule on this question. However, as mentioned, in my opinion, in the case at hand we shall leave this matter for further discussion. I shall now specifically discuss each of the three courses separately and elaborate on the outcome of their application.

 

Interpreting Section 82

 

A.Interpreting Section 82 – the Meaning of the Term "Official Notices"

 

24.As mentioned, Section 82, entitled "Official Languages", imposes a duty to use Hebrew and Arabic in all "the ordinances, official notices and official forms of the government". This raises the question whether the Minister of Infrastructures was, in virtue of the said duty, also obligated to publish the invitation in Arabic. It is my position that this question must be answered in the affirmative. It appears that it is not difficult to classify the invitation to voice arguments, published in the newspaper by the relevant governmental authority, as an official notice. The dictionary definition of the term "notice" is: "Information published to the public, a written notification, an announcement. Examples: Notice boards in the streets, a notice in the newspaper announcing an upcoming performance, an obituary notice. (See: Avraham Even-Shoshan, The New Dictionary – Third Volume 1252 (5727)). It follows, that textually speaking, the invitation to voice arguments that was published in the press falls within the meaning of the term "notice", and the question which remains is whether this is an official notice. In my view the criteria for classification of a notice by a given authority as an official notice should be the identity of the publishing party and the linkage between the publication and the governmental function. If a governmental authority or a party serving a governmental function publishes a notice that has a linkage to the governmental function or the work of the authority, in the framework of the function it serves, the notice is most likely an official one. On the other hand, if, for example, a city resident wishes to publish a notice on the municipal billboard (without addressing the other terms and conditions related to local government), this would be a private notice that does not fall within the definition of the term "official notice", notwithstanding the official platform on which it was published, and is therefore not subject to the duty imposed by Section 82 (see for example: CA 105/92 Re'em Engineers Contractors Ltd. v. The Nazareth Illit Municipality, PD 47 189 (1993) (hereinafter: "In Re Re'em Engineers ").

 

25.In the case before us, the invitation to the public to voice arguments was published via the national press, on behalf of parties in the Ministry of Infrastructures, and has a tight linkage to the Minister of Infrastructures' function as a secondary legislator. It would appear then that this is an official notice on behalf of a governmental ministry. Accordingly, based on the literal interpretation of the text of Section 82, there is a duty to publish the invitation, which, as mentioned, is an official notice, both in Hebrew and in Arabic.

 

While, we could stop here, I shall also analyze the matter before us in accordance with the frameworks presented by the majority justices in Adalah, in order to reinforce the outcome reached according to the approach presented in this section.

 

B.Interpreting Section 82 with Reference to the Historical Background (Justice D. Dorner's Approach)

 

26.In my opinion, even if we refrain from searching for the meaning of the term "official notice" and from answering the question whether an invitation in the press falls within its scope, thus adopting Justice D. Dorner’s interpretative technique in Adalah, we would reach the same outcome. In this context, suffice it to say that in resolving the issue, Justice D. Dorner does not ignore the historical background of Section 82, rather she establishes her interpretation of the Section upon it, and concludes that the fact that the duty to publish in English was repealed while the obligation regarding Hebrew and Arabic remained, ratifies the "status of the Arabic language as an official language of the Jewish and democratic State of Israel" (paragraph 4 of her opinion). In this matter, Justice D. Dorner summarizes as follows: "the official status of the Arabic language is not expressed only in the uses specified in Section 82. The specification in the section is not an exhaustive list. The essence of the provision is the determination of the status of the Arabic language as an official language of the State of Israel" (paragraph 5 of her opinion). Therefore, even if, as mentioned, we take this path and abandon the attempt to interpret the term "official notice", it is clear, so I believe, that a publication addressed to the entire population of extractors and consumers calling them to come and voice their arguments, is subject to the duty prescribed in Section 82, even were we to reject the approach that the publication which is the subject of this appeal falls within the definition of an "official notice". In this context the positive facet of the rights that derive from Arabic's official status and the value of equality are interconnected, as was expressed in Adalah:

 

"The conclusion, then, is that while Hebrew is the primary official language of the State of Israel, being the national language of the majority, the Arabic language's status as an official language pursuant to the amended Section 82 is meant to realize the Arab minority's freedom of language, religion and culture. […] The realization of this freedom is not limited to protecting the Arab population from a prohibition to use its language, but rather it obligates the authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language. The assumption is that Arab citizens in Israel may only know Arabic, or in any event, may only be fluent in this language. […] This purpose derives from the value of equality" (Paragraph 7 of Justice D. Dorner's opinion).

 

There can be no dispute that the intensity of the positive facet of the right deriving from the Arabic language's status as an official language and by virtue of which an individual has a claim against the authority, changes in accordance with the purpose and importance of the publication. For this matter, the right of the Arab minority "to live its life in the State of Israel in its own language" and to "only know Arabic" (from Justice D. Dorner's above words), imposes upon the authority a duty to make the information and its relevant publications accessible to the group to which the members of the Arab population belong. Otherwise, what would remain of the duty of the "authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language" other than fine words devoid of content? It follows, that in the case at hand, based on the interpretative approach adopted by Justice D. Dorner, I find that there was a duty to also publish the invitation in Arabic, by virtue of the duty in Section 82 of the Palestine Order in Council.

 

Interpreting the Duty Pursuant to Section 116(d) (President A. Barak's Approach)

 

27.As mentioned, President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs, so the course he adopted in that case can provide guidance were the two above interpretation approaches to be rejected. President A. Barak turned, in this context, to the section appearing in the Municipalities Ordinance [New Version], empowering and authorizing the local authorities to post municipal signs. In this context it was noted that: "This power is a discretionary power. This discretion is never absolute […]. This is limited discretion. It is limited by the special purposes that underlie the authorizing legislation; it is limited by the fundamental values and fundamental principles of the legal system, which constitutes the general purpose of any legislative act" (paragraph 14 of his opinion).

 

28.Section 116, as worded at the time relevant to this appeal, granted the Minister of Infrastructures the power and authority (the result of the exercise of which is contingent upon the consent of the Minister of Finance, in consultation with the Water Council and with the approval of the Knesset Finance Committee), to prescribe the water levy to be paid by the water extractors to the State's treasury (Section 116(a)). Section 116(d) imposes a duty upon the Minister of Infrastructures to allow the voicing of arguments from the extractor and consumer publics, prior to prescribing new water levies. It follows that the power and authority to prescribe the water levies is already limited by a number of provisions within the section itself: The section, inter alia, limits the minister's discretion by requiring approval by additional parties and by requiring hearing the arguments of the parties which could potentially be adversely affected by the prescription of the new levy. Hence, the section imposes upon the minister a mandatory power and authority (see: Yitzhak Zamir, The Administrative Authority – Volume A 319-325 (2010)), instructing him to grant an opportunity to voice arguments, but it does not determine the terms and conditions governing the manner of exercising this power and authority. This does not imply that the Minister of Infrastructures' discretion with respect to the manner of exercising the mandatory power and authority pursuant to Section 116(d), regarding those parts not regulated by the law, is unlimited. To the contrary, the exercise of the mandatory power and authority that is defined in Section 116(d) is limited, both by the special purposes that underlie it, and by the general purposes, which, as mentioned, constitute the fundamental values and principles of the legal system. Therefore, we must consider the special purposes that underlie the duty prescribed in Section 116(d) and the general purposes, in order to examine the boundaries of the discretion granted to the Minister of Infrastructures, and the conclusion regarding the reasonableness of the decision only to publish the invitation to voice arguments in Hebrew and in the national press will naturally follow.

 

A.The Special Purposes

 

29.The duty to grant an opportunity to voice arguments in the framework of secondary legislation procedures is uncommon; one can even say, quite rare. I mentioned hereinabove the case laws that outlined the rule and the exception regarding the right to be heard (see paragraphs 11-13 above), and there is no need to repeat them. However, as mentioned above, one of the exceptions that was ruled in Berman, and was reaffirmed in the rulings of this Court, provides that, in general, the right to be heard is not applicable in legislation procedures, including secondary legislation procedures. It follows that when, in a certain matter, the legislator does impose the duty upon a minister to enable the public, which may be adversely affected, to voice arguments in secondary legislation procedures, this imposition should be viewed as an indication of the great importance of the issue at hand. Therefore, it can be said that Section 116(d) is intended to serve an purpose viewed by the legislator to be particularly important: the presentation of all of the data before the secondary legislator so that it can make an informed, proportional, and reasonable decision, based on as extensive a factual basis as possible. The flip side of this coin is granting the potentially adversely affected party the opportunity to present the minister – directly or indirectly – with relevant information for making the decision regarding the extent of the water levy, and which serves the purpose of involving a defined public in proceedings that impact it as well as signaling to that public that the authority is speaking with it rather than at it.

 

B.The General Purposes

 

30.Due to the great similarity between this case and Adalah, it seems that some of the general purposes listed by President A. Barak there (see: his opinion in paragraphs 16-21) are also relevant to the case at hand. Whereas, as mentioned, these purposes are external to the specific norm and constitute the fundamental values and principles of the legal system in Israel. It follows that it is unnecessary to further elaborate beyond that which was presented in President A. Barak's opinion, and it will suffice to list those purposes briefly.

 

31.The first general purpose, relevant to the case at hand, is the protection of a person's right to his language; the second general purpose is ensuring equality; in this context President A. Barak states that:

 

"The meaning of the matter in the case at hand is that the (local) authority must ensure equal use of its services […]. If part of the public cannot understand the municipal signs, their right to equally benefit from the municipality's services is prejudiced. Indeed, once language has a significant importance to an individual and his development, it is necessary to ensure that his opportunities as an individual are not limited due to his language" (paragraph 19 of his opinion).

 

Meaning, the purpose of making the authority's services equally accessible to individuals can be included under the general purpose of ensuring equality. In this context, President A. Barak drew attention to two additional purposes: the status of the Hebrew language and the recognition of the importance of language as an element of national solidarity and of defining the sovereign state. It does not appear that these purposes are substantial in the case at hand. The purpose of protecting the status of the Hebrew language does indeed impact the question regarding the language of signs in general, and municipal signs, in particular, since the signs are not just functional, but also bear some symbolism. One could even say that the language of municipal signage is the face of the city, and that therefore there is good reason to examine the question whether or not it is appropriate to add an additional language to the municipal signs, also in terms of the status of the Hebrew language. In the case at hand, however, the purpose regarding the status of the Hebrew language does not have much impact, since it would be difficult to say that one of the purposes of the mandatory power and authority to grant an opportunity to voice arguments is to protect the status of the Hebrew language or to promote the value of "the existence, development and flourishing of the Hebrew Language…" (In Re Re'em Engineers, 208). The same logic applies with respect to the purpose of recognizing the importance of the language as an element of national solidarity and of defining the sovereign state. On the other hand, one can think of an additional general purpose which did not appear in Adalah - the purpose of the efficiency of the administrative authority's action, and in our context this could support refraining from publishing in Arabic.

 

C.Striking a Balance between the Purposes

 

32.It is known that any purpose, when examined individually, could lead to a different conclusion. However, under the Israeli legal system, there are no absolute values and principles, rather, the view that they are relative, is predominant. It follows that after identifying both the special and the general purposes that vie for priority, each must be granted its relative weight and must be weighed against the others in order to discover the point of equilibrium (see for example, HCJ 6163/92 Eisenberg v. The Minister of Building and Housing, PD 47(2) 299, 264 (1992); HCJ 935/89 Ganor v. The Attorney General, PD 44(2) 485, 513 (1990)). It should be emphasized, in this context, that there may be cases in which balancing might lead to several points of equilibrium, any of which, if chosen when exercising discretion, would be reasonable (see: HCJ 5016/96 Chorev v. The Minister of Transportation, PD 51(4) 1 (1997)). I believe that in the case of the duty to publish the invitation to voice arguments in Arabic, the balance between the purposes of protecting an individual's right to his language and ensuring equality, including making the authority's services accessible to a language minority group, on the one hand, and the purpose of the efficiency of administrative authority's actions, on the other, leads to the conclusion that there was a duty to publish the invitation to voice arguments in Arabic. It follows that the decision in the case at hand was made by the deciding entity without having considered all of the relevant considerations – the status of the Arabic language, making the publication accessible, equality, etc. – and it can be said, on these grounds alone, that the decision is unreasonable. However, in light of the above discussed balance, it emerges that the decision deviates from the scope of reasonableness, on its merits as well.

 

33.I shall mention that Section 116(d) prescribes a duty, which can be fulfilled in a number of ways in other words, there is a scope of reasonableness, within which there are several options which the Minister of Infrastructures could have selected. For example, the Ministry of Infrastructures could have personally approached the potentially adversely affected parties and invited them to voice their arguments; however the option chosen was that of publishing in the press, an option, which, in and of itself, like its predecessor, is certainly reasonable. One can think of other reasonable means of publishing means, which the Ministry of Infrastructures could have taken to fulfill the duty to inform. The platform of publication, however, is not the only matter that should be examined; so, too, should the matter of the language of publication, which was discussed above and which the Minister of Infrastructures should have weighed and considered in his final decision.

 

34.I note that the assumption that most, even if not all, of the Hebrew reading and speaking public will encounter the publication in the Hebrew press, is definitely a reasonable one. This assumption is incorrect, however, with respect to the Arab public. Indeed, one can say that the publication in the press, in general, is a reasonable means of fulfilling the duty imposed in the framework of Section 116(d). This is even the manner adopted to inform the public regarding the deposit of a plan in the framework of the Planning and Building Law, 5725-1965 (hereinafter: the "Planning and Building Law") (see: Section 89). As clarified above, in the case of the duty to inform, the scope of reasonableness includes the possibility that the information which is the subject of the publication will not actually reach the entire relevant public. Publishing only in the Hebrew press, however, while refraining from publishing in Arabic, through a platform that is widespread among the group of Arabic speakers, is unreasonable. The reasonableness principle could not sanction a situation in which the authority published only via a platform to which the majority of the water extractors and consumers are not exposed. Similarly, a situation in which the majority of a distinct group among the extractor and consumer public is not exposed to the publication, is unreasonable as well. Yet, that is what publication in the Hebrew press is for Arab extractors and consumers, the majority of whom are likely to not be exposed to such publications, and, at the very least, whose exposure to the Arab press is significantly greater. It follows that with respect to such a public, by refraining from publishing via a platform to which the majority of such a public is exposed, and which is in their language, the authority deviated from the scope of reasonableness.

 

35.It is necessary to clarify that while different languages are spoken in the State of Israel, due to Jewish immigration from various countries around the world, this differs from the Arab population, in terms of the purpose of protecting an individual's right to his language. In Adalah, President A. Barak expressed the following, relevant to the case at hand:

 

“Does our approach not imply that residents of different towns in which there are minority groups of speakers of various languages, will now be able to demand that the signs in their towns will be in their language as well? My response is negative, since none of those languages is the same as Arabic. The uniqueness of the Arabic language is twofold. First, Arabic is the language of the largest minority in Israel, which has lived in Israel since far far in time. This is a language that is linked to cultural, historical, and religious attributes of the Arab minority group in Israel. This is the language of citizens who, notwithstanding the Arab-Israeli conflict, wish to live in Israel as loyal citizens with equal rights, amid respect for their language and culture. The desire to ensure dignified coexistence between the descendants of our forefather Abraham, in mutual tolerance and equality, justifies recognizing the use of the Arabic language in urban signs-in those cities in which there is a substantial Arab minority (6%- 19% of the population)-alongside its senior sister, Hebrew . . . […]. Secondly, Arabic is an official language in Israel (see paragraph 12 above). Many languages are spoken by Israelis, but only Arabic – alongside Hebrew – is an official language in Israel. Arabic has, then, been granted a special status in Israel. This status does not have a direct application in the case at hand, but does have an indirect application. […] the fact that the Arabic language is "official" "has surplus and unique value" (Adalah, paragraph 25).

 

These two explanations – the fact that Arabic is the language of the largest minority in Israel and an official language – justify, in our case as well, granting the Arabic language special treatment compared to the languages of other minorities. In this matter, it is clear that there is an interest that the Arab minority learn the language of the majority, which is the dominant language in the country. However, due the unique status of the Arabic language, a situation in which an individual belonging to the Arab minority in Israel is adversely affected due to only being fluent in his language, cannot be allowed.

 

Interim Summary

 

36.As presented above, I posit that the decision not to publish the invitation in Arabic and via a platform to which the Arab speaking public is exposed, is unreasonable, based upon the three above mentioned approaches: the interpretation of Section 82, both as per the term "official notice" and in accordance with Justice D. Dorner's approach in Adalah, and the interpretation of the obligation prescribed in Section 116(d), as per President A. Barak's approach. I note, in this context, that although I discussed each approach separately, this should not imply that they are mutually exclusive. While President A. Barak rejected Justice D. Dorner's interpretative approach in Adalah, his approach of interpreting power and authority, in light of their (special) underlying and (general) overarching purposes can indeed coexist with Justice D. Dorner's broad interpretation of Section 82. This is also true with respect to the interpretation of the term "official notices", which can coexist alongside President A. Barak's approach and alongside Justice D. Dorner's approach. While it may appear prima facie that in the latter matter there is an inherent contradiction, de facto, nothing stands in the way of accepting the proposed interpretation of the term "official notices" and agreeing to the approach that the overall interpretation of Section 82 must be applied based on the historical circumstances that encompassed its legislation during the Mandate period and its adoption by the Israeli legislator. This matter, however, goes beyond what is necessary in the case at hand, such that I am not required to rule on this matter here.

 

Be the preferred approach of the interpreter as it may, the conclusion that emerges is that the decision to publish the invitation to voice arguments exclusively in Hebrew and in the Hebrew press is not a reasonable decision, and, at the very least, is a decision made in violation of a statutory obligation, all as per the interpretative approach applied. It follows that the question we must now ask is: what is the consequence in the case before us? In other words, what is the warranted relief under the circumstances? I shall now turn to this question.

 

The Relief

 

37.The case before us raises two interrelated flaws. First, the lack of concurrent publication in Arabic of the invitation to voice arguments, and second the result thereof, i.e., the denial of the Appellants' right to actually voice their arguments. As for the consequence of the lack of publication in Arabic, I do not believe the appropriate relief, by virtue of this flaw per se, is to invalidate the Water Regulations. It would be sufficient to order that when the water extraction levies are updated it shall be mandatory to also publish the invitation to voice arguments in Arabic (this obligation is currently imposed on the Water Council pursuant to Section 116(d) of the Water Law).

 

38.Appellants' matter also relates to their inability to exercise their right to be heard, which was indeed violated in the case before us. This raises the question: How is such violation to be treated? Prima facie, the results of an action that deviates from the scope of reasonableness or that is tainted by illegality, should be null and void. However, it is known that according to the relative voidness doctrine or the relative consequence theory, which have been accepted in our system, one must distinguish between the flaw and the consequence thereof (see: CrimA 1523/05 Anonymous v. The State of Israel (not published, March 2, 2006)). In this matter, it has been said that:

 

"Case law regarding relative voidness (which, for the sake of accuracy, should be referred to as “relative legality”), provides that one must distinguish, in the framework of judicial review of an administrative decision, between two levels: the first level – the flaw in the decision; and the second level – the consequence of the flaw. With respect to the first level, the Court must examine and determine if there was a flaw in the decision such as: ultra vires, violation of the right to be heard, conflict of interests, irrelevant considerations, and the like. If the Court ruled, on the first level, that there was a flaw in the decision, then it must, on the second level, consider the consequence of the flaw, i.e. the appropriate relief. The Court's considerations differ greatly at the two levels: at each level the Court has different objectives and uses different tools" (LCrimA 4398/99 Harel v. The State of Israel, PD 54(3) 637, 643 (2000)).

 

This is the case when dealing with an administrative flaw (see: AAA 3518/02 Rajby v. Chairperson of the Local Planning and Building Committee, Jerusalem, PD 57(1) 196 (2002); HCJ 10455/02 Amir v. Israel Bar Association, PD 57(2) 729 (2003)). This is also the case regarding a void contract to which the administrative authority is a party (see: CA 6705/04 Beit Harechav Ltd. v. Jerusalem Municipality (yet to be published, January 22, 2009)), and is also the case in judicial review of secondary legislation of the legislative authority (see: EA 92/03 Mofaz v. Central Elections Committee Chairman for the Sixteenth Knesset, PD 57(3) 793 (2003)).

 

39.The right to be heard is an important right in Israeli law, and, as mentioned above, is grounded in the rules of natural justice. In the case before us, the Appellants were entitled to voice their arguments, or, at the very least, to an opportunity to voice them, which was not made possible, due to the Minister of Infrastructures’ not complying with his obligation to publish the invitation to voice arguments in Arabic. The violation of the rules of natural justice, including the right to be heard, is deemed ultra vires (see: CA 183/69 Petach Tikva Municipality v. Avraham Tachan of "Amishav" Laboratory, PD 23(2) 398, 404-406 (1969)), and constitutes a cause to invalidate an administrative decision. However, all this is still subject to the relative voidness doctrine. When examining the consequence of the violation of the right to be heard, the considerations are as follows:

 

"… the question is, what is the consequence of the violation of the mandatory hearing. Does the violation revoke the decision ab initio? Not necessarily. […] According to the relative voidness theory, it is appropriate to adapt the consequence of the violation (including the relief granted by the Court) to the circumstances. In each case, the matter is placed at the Court's discretion. The Court may, inter alia, consider: the severity of the violation; whether at hand is a direct or indirect attack of the decision; whether the decision is being attacked by a person directly adversely affected by the decision or by someone else; the timing of the attack on the decision; the damage caused to the person, due to having been denied a prior hearing, the damage that could be caused to the public, were the decision to be invalidated and the chances to cure the wrong by means of a later hearing". (HCJ 2911/94 Backi v. Kalaji – General Manager of the Ministry of Interior PD 48(5) 291, 305-306 (1994)).

 

40.The question, then, is how the flaw in the case at hand should be treated. In my opinion, vacating the Water Regulations, only due to the fact that the Appellants did not have the opportunity to voice their arguments at the time relevant to the promulgation, is unwarranted. Additionally, I find it unwarranted to order the vacating of the notices of debt sent to the Appellants due to the water extraction bills they had to pay pursuant to the extraction licenses in their possession. One can, indeed, find a causal connection between the lack of publication of the invitation to voice arguments in Arabic, and via platforms widespread among the Arab population, and the Appellants not knowing, as emerges from their affidavits, about the amendment of the Water Regulations. However, Appellants did nothing, or at least it was not proven to us that they took any action, related to the notices of debt issued in the Appellants' matters, related to a period spanning over five to six years, concerning these debts, of which they should have been aware. The Appellants did not, during said period, ask the authority about the extent of their debt for water they extracted nor did they demonstrate any effort to discuss the authority's conduct (which they are now criticizing) at the time of the promulgation of the Regulations. Passively waiting until the authority acted to collect the debt, which, in the interim, had accumulated to large amounts, is inappropriate. Furthermore, Appellants chose to attack the lack of publication of the invitation to voice arguments, and the amount they were charged, by means of an indirect attack, notwithstanding the fact that, as mentioned above, the debts accumulated over a number of years. An indirect attack is not the standard course in matters such as these, which serves as an additional consideration supporting my conclusion that neither the Regulations nor the debt notices should be voided.

 

41.I shall further note that I agree with the District Court's rulings regarding the potential impact of the arguments that the Appellants raised before it (and before us) regarding the contents of the Water Regulations and the consequence of the arguments on the wording of the Regulations, had the Appellants been granted the opportunity to voice them before the secondary legislator. The general purpose of Section 116 of the Water Law, which the promulgation of the Water Regulations was meant to realize, is to prescribe the water extraction levies with the goal of incentivizing extractors to make the extraction process more efficient and to conserve the limited resource, in light of the difficulties faced by the Israel water economy. If, and to the extent that, the Appellants have reservations regarding their physical ability to use their allocated extraction quota, these are arguments that relate to the terms and conditions of the water license, which are inappropriate to raise in the framework of determining the extent of the levies. Additionally, the lack of alternative water sources in the vicinity of the aquifers from which the Appellants extract water is irrelevant to the purpose of treating the shortage in the various reservoirs in accordance with their condition, as is reflected from time to time. Similarly, questions regarding the socio-economic condition of the water extractors and consumers are irrelevant in the framework of determining the water levies.

 

42.Thus, in light of the fact that Appellants' arguments, even had they been presented before the Minister of Infrastructures, would probably not have changed the Regulations' wording that became binding; in light of the manner in which Appellants chose to attack the violation of the obligation to conduct a hearing in their matter – by means of an indirect attack; in light of the extensive damage to the public interest and the public funds which would be caused by a invalidating the Regulations; and in light of the associated damage of the cancellation of the Appellants' debt, I have been convinced, based on the relative voidness doctrine, that, despite the flaw of not publishing the invitation to voice arguments in Arabic, it is inappropriate to invalidate the Regulations or the notices of debt in the Appellants' matter.

 

Before Summation

 

43.In the framework of its arguments, Respondent claimed that, contrary to other laws, such as the Planning and Building Law (Section 1A(a)(2)), the Mandatory Tenders Regulations, 5753-1993 (Regulation 15(a)), and the Freedom of Information Regulations (Availability of Environmental Information to the Public), 5769-2009, the legislator did not prescribe anything in Section 116(d) of the Water Law regarding the manner of publication, nor did it include a duty to publish in Arabic. Meaning, it can be understood from its argument that the Respondent wishes to infer from the legislator's silence that it, and, similarly, the Minister of Infrastructures before it, are exempt from the obligation to also publish in Arabic. I cannot accept this argument. As is known, in Adalah too there was no express obligation to include Arabic writing on the municipal signs in the Municipalities Ordinance itself, yet the Court did not deduce from this that there was no duty, since one cannot infer that the legislator's silence in the matter at hand was deliberate, as that inference is not necessary in order to properly realize the purpose of the law (see: BAA 6045/02 Binstock v. Tel Aviv District Committee of the Israel Bar Association, PD 58(2) 1, 5 (2003); HCJ 212/03  Herut – The National Jewish Movement v. Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset, PD 57(1) 750, 758-759 (2003)). As I have ruled above, the balancing of the purposes of Section 116(d), in accordance with the framework outlined by President A. Barak in Adalah, leads to the conclusion that there is also an obligation to publish the invitation to voice arguments in Arabic.

 

44.I shall further wish to note that while the Water Council is currently responsible for updating the water levies pursuant to Section 116, at the time relevant to this appeal, it was the Minister of Infrastructures who was responsible. Therefore, it would have been desirable had the Appellants added the Minister of Infrastructures as a respondent. I have been convinced, however, that we can rule on the matter before us without hearing the minister's position, given that the Respondent chose not to raise claims on this level and itself defended the path taken by the minister at the time of the publication of the invitation to voice arguments.

 

Summary

 

45.The appeal before us raises questions regarding the manner of exercising the discretion granted to the Minister of Infrastructures (which is currently in the hands of the Water Council), whilst fulfilling the duty, as defined in the Section 116(d), to allow arguments to be voiced before promulgating the Water Regulations that determine the extent of the levies for extracting water in Israel. The aforementioned voicing of arguments constitute a type of public hearing, distinguished from a personal hearing on several levels, primarily with regard to the right to be informed and to the extent of informing deemed reasonable. Clearly, the authority must ensure broad exposure of the invitation to voice arguments, in order to enable the majority of the relevant public to exercise their granted right to be heard. This does not mean, however, that in order to reasonably fulfill this duty, the authority must see to it that notification is universal. Equally important to the matter at hand is the question whether there was an obligation, concurrently with the publication in Hebrew in the national press, to also publish the invitation to voice arguments in Arabic and in the Arab press. I have answered this question in the affirmative, following three interpretative theories, two of which focus on the interpretation of Section 82, while the third is based on interpreting the mandatory power and authority grounded in Section 116(d) of the Water Law. Finally, and in light of the unique circumstances of this case, I have reached the conclusion that despite the flaw of refraining from publishing the invitation in Arabic and in the Arab press, and pursuant to the relative voidness doctrine, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof.

 

46.Therefore, subject to that which is presented in my opinion, I recommend to my colleagues to deny the appeal.

 

Given the circumstances of the matter, each party shall bear its own expenses.

 

Justice

 

Justice E. Rubinstein:

 

A.I concur with the outcome reached by my colleague Justice Joubran and with the core of his reasoning. My colleague, however, deemed it appropriate to elaborate on the matter of the status of the Arabic language in Israel, in connection with the matter of the publication of the notices pursuant to Section 116 of the Water Law, 5719-1959 (prior to its amendment) in Arabic. My colleague embarked on a principled discussion of this matter, even though Respondent already declared in the court of lower instance (the Court of Water Affairs) that future notices will also be published in Arabic. Respondent’s attorney even reiterated this worthy commitment in the hearing before us, in response to our questions. Yet, since my colleague has discussed the principle, I shall add a few remarks of my own. I shall note at the outset, that in my opinion this is among the matters to which the saying of our sages, spoken by Shammai, "Say little, do much" (Ethics of the Fathers [Pirkei Avot] 1:15) applies, since the more one studies the Arabic language and applies a broad approach to its use, the better; while the more one treads on questions that impinge upon the sensitive sphere of political debate, even when they are presented as legal questions, the more complicated matters get. Fair-mindedness and pragmatic common sense is good counsel for such matters.

 

B.I shall emphasize that, beyond the legal question, I am of the opinion that the study of the Arabic language by the Jewish public in Israel should be promoted. Regrettably, despite extended efforts in the educational system, this remains far from being sufficiently developed. Arabic speakers are a large minority in Israel. The majority of these speakers today do indeed know Hebrew, which is the dominant language in the country, the language of the majority, and the primary official language. Given the fact that native Arabic speakers are a large minority among us, as well as the fact that Israel is surrounded by neighbors who are all Arabic speakers, with some of whom we even have peaceful relations, the knowledge of Arabic among Jews in Israel, except for the older generation of Jews who originated from certain Arab countries, is, in my opinion, far from satisfactory. Not to mention the fact that the Arabic language is a fundamental part of a rich and ancient culture. I shall take the liberty, at this opportunity, to add my voice to those calling for enhancing the study and knowledge of Arabic and the culture related thereto; this could only bring benefit to the relationship between the State of Israel and its domestic minorities as well as with its surrounding neighbors. I shall quote, in this matter, from a speech I gave, while serving as Attorney General, in Tishrei 5760 (October, 1999) at Givat Haviva, which was published in Kiryat Hamishpat A (5761), 17, and in my book Netivei Mimshal Umishpat (5763), 278.:

 

"As is known, the Arabic language has the status of an official language in the State of Israel. However, knowledge and use of Arabic in Israel falls short, both in terms of convenience for Arab citizens, residents, and visitors, and for use by the Jewish public. Incidentally, this would be an appropriate place to mention that in my opinion more should be done in terms of teaching Arabic grammar in schools in Israel. I myself am a graduate of the Middle-Eastern studies department, in its format, which preceded the Six Day War, when peace seemed a far and unreachable goal. At a time when the circle of peace is opening and extending, I would be all the more happy if Arabic was taught more. There is nothing quite like familiarity with the Israeli Arabs that live among us and the surrounding Arab world. That familiarity is lacking. Language is one the best means for familiarity."

 

It was further said (page 281) that "The Ministry of Transportation was instructed to add Arabic inscription to new license plates on Israeli vehicles. This... taking the peace process into consideration and the possibility that vehicles with Israeli plates will be able to travel in the neighbors' territories". It was further said (ibid) that "Including the Arabic language in official publications of the State of Israel is not only in order to grant it its proper standing, but that at times the very use of the language, in and of itself, grants the opportunity to attain equality". This is true also in the matter of the obligation to publish tenders in Arabic: "There is no proper meaning to equality through participation, if there is no language accessibility, inter alia, due to language barriers" (page 282). See also my paper "The State and Israeli Arabs: The Struggle for Equality in the Framework of a Jewish, Democratic and Tormented State" (ibid, 293, published in its essence in Kiryat Hamishpat, C, 107)

 

In my recent capacity as Chairman of the Central Elections Committee for the Nineteenth Knesset, I felt it necessary, inter alia, to give the Arabic language proper standing by including a segment in Arabic in my address to the citizens of Israel in the traditionally broadcasted Central Elections Committee Chairman’s call to participate in the elections.

 

C.Indeed, much of the matter before us addresses, beyond the legal aspects, questions of respecting the minorities among us (see, on this matter, my paper "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (2013) 140, 142-144); I expressed my opinion (page 145) that "The study of Arabic is one area in need of repair. The majority of Israeli Arabs today know Hebrew, because they live with the majority, Jewish society. Among the Jewish population – other than among immigrants of earlier generations who immigrated from Arab countries and whose mother tongue is Arabic – the situation is vastly different. Lack of knowledge of Arabic is most regrettable…" He who respects – is to be respected. I am of the view that the promotion of the Arabic language should be kept as distanced as possible from the political debate concerning the Arab-Israeli conflict, and should be strongly encouraged in practice. The more the focus is on the practical sphere, on promoting studying the language and using it, the better; it must not be perceived by the public as part of a struggle to alter the Jewish and democratic essence of the state, i.e., to remove the Jewish label from the state, so as not to create unnecessary antagonism. This is what common sense demands: proper respect, proper study, proper use – but not, heaven forbid, a tool for harming the State's Jewish, Jewish and democratic identity. In my opinion, the more we remove this matter from the principled struggles and focus on establishing appropriate practical arrangements, the more the effort will bear fruit. "The essence is not study, but deed", as spoken by Rabbi Shimon Ben Gamliel (Ethics of the Fathers [Pirkei Avot] 1:17). Of course, I shall not claim that there is no point in legal deliberation, in appropriate cases, as demonstrated by those petitions that were accepted. However, in my opinion, ultimately, legal rulings are most appropriate when a worthy request, which, with a little bit of goodwill, could have been met, is not satisfied.

 

D.As mentioned, too much talk can often be counter-productive. I shall illustrate this from the highly-informative book by historian Dr. Nathan Efrati, Hebrew and the State – Hebrew's Public Status since the Establishment of the State (5770 - 2010), which extensively reviews the evolution of both the parliamentary and public discussion, related to the issue of the Hebrew language and its status, and consequently, to the issue of the Arabic language, going back to the establishment of the state. A summary of the remarks with respect to Arabic are presented below in order to draw attention to the inherent sensitivity of the matter. The author mentions (on page 9), that in the United Nations resolution of the 29th of November, 1947 (the Partition Resolution), it was stated with respect to Arabic that "In the Jewish State adequate facilities shall be given to Arab-speaking citizens for the use of their language, either orally or in writing, in the legislature, before the Courts and in the administration". When the matter of the Arabic language was raised in the People's Council, by Meir Grabovski (Argov), a signer of the Declaration of Independence and eventually a member of Knesset, in an argument regarding the wording of the Declaration of Independence and assuming equal rights to both languages in Israel, David Ben-Gurion replied that "No-one will object to there also being freedom of language", however "the language of the state is Hebrew. This does not prevent other residents from using their language anywhere" (pages 9-10); Eventually, Section 15(b) of the Administration of Rule and Justice Ordinance, 5708-1948, was adopted, which repealed the requirement to use English – but did not change the status of Arabic (see also the notes at ibid, page 10). See also ibid, pages 36, 127-128, 131-134 regarding various bills proposed over the years regarding the Arabic language and its relation with Hebrew. The author summarizes the failed attempts for special legislation regarding the status of Hebrew (page 134) "The bills always failed due to the implications of such legislation on the status of the Arabic language"; this occurred, for example, in the discussions of a private bill regarding Hebrew by MK Ora Namir in 1982, "despite the fact that Namir explicitly provided that the law was intended to protect the Hebrew language without in any way derogating from the existing status of the Arabic language" (ibid, page 230). Similarly, see page 243 with respect to the position of both left and right wing governments and the great sensitivity they demonstrated in this matter. On a personal note, I shall mention that the author discusses (page 230-231) remarks of mine from a meeting of the Education and Culture Committee (dated 23^rd of Cheshvan, 5743 - November 9, 1982), in a discussion regarding MK Namir's bill, when I served as legal counsel of the Ministry of Foreign Affairs (page 230-231), "On behalf of the Ministry of Foreign Affairs, [he] praised Namir for the third section of her bill that provided that the rights of the Arabs shall not be prejudiced, as stated in Section 82 of the Palestine Order-in-Council, of 1922, i.e. the status of the Arabic language shall be preserved. He expressed his hope that this law would be publicized so that this fact shall also become known abroad, and not be interpreted as an offensive change". For a review of Supreme Court rulings on the matter, see ibid 231-232. The author further mentions that, when faced with private bills regarding the Hebrew language, which frequently declared that they do not intend to prejudice the Arabic language, the government's position was to consistently oppose any change in the status of the Arabic language (ibid, page 236); and inter alia, ministers also expressed the spirit of this position; while, as opposed to them, "No appeal was heard from the Arab members of Knesset with respect to the preferred status of the Hebrew language in the State of Israel" (page 236), and MK Raleb Majadele, the Minister of Culture and Sport, when submitting a bill to establish an Academy for the Arabic Language (Knesset Education and Culture Committee Hearing, February 19, 2007; ibid page 236), spoke of enhancing Arabic’s prestige as the "second official language".

 

The result is that the attempt to formally anchor the status of Hebrew in a law, beyond that which exists in Section 82, did not succeed, due to the sensitivity of the Arabic issue. On the other hand, the author reviews "Adalah"'s efforts to, in his words, "undermine the preferred status of the Hebrew language", and challenge the Jewish character of the State – as appears in a document of constitutional nature published on its behalf in 2007, (pages 246-247), while defining Israel as a "democratic bilingual and multi-cultural state, as opposed to its current definition as a Jewish and democratic state"; see also footnotes on page 246.

 

E.Furthermore, it is known that the legal status of the Arabic language is complex, as demonstrated by the case law presented by my colleague Justice Joubran. It is clear that, on the one hand, the Hebrew language is in fact the main language of the State, a Jewish state, as per the Declaration of Independence, and democratic in its essence, and a Jewish and democratic state, as per its definition in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation. That an overwhelming majority of this country’s citizens are Jewish, and that the various governmental institutions conduct themselves first and foremost in Hebrew are well known facts that do not require evidence. It is undisputable that the revival of the Hebrew language, from Eliezer Ben Yehuda and his friends and onwards – a revival, which, without resorting to excess mysticism, can be deemed miraculous – and the unimaginable success of transforming Hebrew from a sacred tongue to a living language, spoken by the multitudes of immigrants and ingathered exiles, is an enormous part, of the Jewish national revival in Israel, and whose importance cannot be overstated. As Ephraim Kishon said ("This is the Country", in The Knitted Kipa and Some More Pro-Israel Satires (5753 – 1993) 5) "This is a country where a mother learns the mother tongue from her children". Having said that, the Arabic language has legal status as an official language by virtue of Section 82 of the Palestine Order-in-Council, 1922; see Y. Zamir The Administrative Authority (2010) (2^nd Edition) on page 66, where Arabic is described, in the framework of the rights of the Arab public, as a "second official language". It is not superfluous to note that a few years back the Knesset adopted the Law for the Supreme Institute for the Arabic Language, 5767-2007, the drafting of which parallels the language of the Law for the Supreme Institute for the Hebrew Language, 5713-1953 (the law that establishes the Academy of the Hebrew Language); see also Efrati, ibid, 233. "In the Supreme Institute for the Arabic Language Law, the institute was charged, inter alia, with 'Research of the eras and branches of the Arabic language' (Section 391), and with 'Conducting relations and exchange of information with the Hebrew Language Academy and with Arabic and Hebrew research institutions in Israel and around the world." (Section 3(5)).

 

Over the years, the legal issue has been discussed in the case law, in scholarly publications and in the opinion pages of the press. As far back as 1967, Advocate (and eventually Judge) Avigdor Salton published his article "The Official Languages in Israel" (Hapraklit 22 (5727 - 1967) 387), in which he reviewed the then current legal status of the Arabic language (page 391 and onwards), concluding on page 397 with the opinion that "legally speaking, there is no duty for government ministries or courts to respond in Arabic", and that is rather " only a license" (emphases original) granted to the authorities, subject to preventing a miscarriage of justice; see page 395. Furthermore, "As for the question of the official languages in Israel, in general, it appears to me that in this field more is concealed than in revealed, and the Knesset should address this important question" (p. 397). The matter arose later on in HCJ 527/74 Khalef v. The District Planning and Building Committee, Northern District, PD 29(2) 319 (1975) in a matter similar to the case at hand, and there was no dispute that a plan that was deposited should have also been published in Arabic, as per Section 89(a) of the Planning and Building Law, 5725-1965 (as was amended in 5733 - 1973).

 

F.In LCA 12/99 Jamal v. Sabek (1999), Justice (as was his title at the time) M. Cheshin noted (paragraph 18), regarding the right to vote and the use of Arabic, that Arabic has – in the provision of Section 82 of the Palestine Order in Council – an "especially exalted status, and there are even those who believe that it is an official language (whatever the interpretation of the term "official" may be) … the main point being that the Arabic language is the language of a fifth of the State's population – the language of the public, language of the culture, language of the religion, and that this portion of the population is a significant minority whom, and whose language, we must respect"; see also CA 8837/05 Marshud v. Shorty (2009) (paragraph 21). The matter was extensively addressed in HCJ 4112/99 Adalah v. The Tel Aviv - Jaffa Municipality, PD 56(5) 393 (2002). My colleague reviewed the three opinions that were presented therein regarding signs in mixed cities where the Petitioner requested that it be applied universally. My position there as the Attorney General was, as President Barak summarized (paragraph 3 on page 405):

 

"In a notice on his behalf (on behalf of the Attorney General – E.R.) it was noted that in his opinion the respondent municipalities do not have an obligation to post signs in Arabic. Such an obligation does not stem from Section 82 of the Palestine Order-in-Council, 1922. Arabic, however, is an official language of a large and respected minority in the State. This status that it has - alongside the Hebrew language, which has a primary status - creates an obligation that the governmental authorities consider the use of the Arabic language in accordance with the matter in question. In terms of the respondent municipalities, it follows that certain criteria are expected of them when exercising their discretion in those cities in which there is a significant Arab minority. First of all, a distinction can be drawn between main arteries and side streets. The obligation to also post signs in Arabic applies primarily to signs on the main streets and central roads. Secondly, the obligation to post signs in Arabic applies mainly in areas in which there is a large Arabic-speaking population. Thirdly, signs directing to public institutions, as well as directional signs within the public institutions themselves must also be in Arabic. Fourthly, updating the signs in all such places where adding Arabic writing shall be required, shall be made within a reasonable time frame. The Attorney General added that consideration must be given to the general interest of readers' comprehension, i.e., the public interest that everyone understand the signs. The main importance of this interest is readers' comprehension of safety and warning signs. It is of lesser importance in other signs (directing signs, including road and roundabout signs and signs in public squares, as well as other public signs). The Attorney General added that some of the Arab public is able to read and understand Hebrew and English signage".

 

Further on (in paragraph 6 on pages 406-407) the President quoted from my complementary position that in the case of localities with a significant Arab minority "practical considerations, as well as considerations of respecting the language of the Arab public, could justify expanding the scope of the signs in Arabic beyond the main streets and central roads, and beyond those areas in the local authority’s jurisdiction which include a large Arabic-speaking population", with the details being determined by the local authorities.

 

The majority opinion, with President Barak and Justice Dorner applying different normative interpretations, was that it is appropriate for an obligation of Arabic writing to be applied in its entirety. President Barak did not see this through the prism of Section 82, although he was of the opinion (paragraph 13 on page 411) that consideration should be given to the official status of the language, and therefore viewed the source to be in the mere authority to post municipal signs in the language of the largest minority in Israel (paragraph 25 on pages 417-418). Justice Dorner was of the opinion that the matters derive from Section 82, since (paragraph 7 on page 478) "…while Hebrew is the primary official language of the State of Israel, being the national language of the majority, the Arabic language’s status as an official language pursuant to the amended Section 82, is meant to realize the Arab minority’s freedom of language, religion and culture …", in accordance with the principle of equality. Justice (as was his title at the time) Cheshin (paragraph 16 on page 429) emphasized that the fact that the Arabic language is referred to as "official" "grants the language an exalted status, but one should not infer an operative legal conclusion from such status other than in circumstances in which this is required and in subordination to the law. The material is sensitive and delicate, … and therefore we must be guarded: we shall be cautious and refrain from reaching operative legal conclusions from the fact that the language is "official", unless this is required in consequence of applying another fundamental principle of law…" Freedom of language – yes, but without being dragged into politics. Justice Cheshin added (paragraph 61 on page 460) that "The real matter of the petition before us is not the street signs of the respondent municipalities. The matter – in its essence: from its beginning through to its end, is the cultural and national rights of the Arabs in Israel… The matter of granting these - or such - rights - is, first and foremost, a political one, which, in any event, is to be decided upon by the political authorities. The question is delicate and complicated, with far-reaching implications for both the image and character of Israel as a Jewish and democratic state…".

 

G.See also I. Saban "The Collective Rights of the Arab-Palestinian Minority, Do They or Do They Not Exist and the Extent of the Taboo" Iyunei Mishpat 26(1) (2003) 241, 260 and onwards, regarding Arabic's status and for a critical overtone regarding the matter of the practical realization of the language's official status; I. Saban "A Sole (Bilingual) Voice in the Dark", following HCJ 4112/99 Adalah v. The Tel-Aviv Municipality" Iyunei Mishpat 27(1) (2003) 109, and particularly 130-133; I. Saban and M. Amara "The Status of Arabic in Israel: Law, Reality and Borders: Using the Law to Change Reality", Medina Vechevra 4 (5765 - 2004) 885; A. Hacohen "Multiplicity of Opinions and a Human's Right to Speak his Language" Parashat Hashavua Bereshit 32 (5772); A. Harel-Shalev "The Status of the Arabic Language in Israel - Comparative Perspective" Adalah's Electronic Newsletter 14 (2005); Alaa Mahajna "The Arabic Language and its Indigenous Status in Israel" Adalah (2008); Dr. A. Bakshi "The Status of Arabic in the State of Israel,” The Zionist Strategy Institute (5772-2011). This collection of articles, reflecting different legal, public, and political directions, indicates the sensitivity, not to mention the volatility, of the matter, and the conflicts therein. In any event, more than a few of the authors emphasize the practical aspect, the gap between the legal analysis and the facts on the ground. There is no dispute, including among those of the opinion that the status of an official language should be reserved exclusively for Hebrew, that "also as a matter of values, one must protect the linguistic autonomy of the Arab minority and its rights of freedom of expression and linguistic accessibility to government services" (Bakshi, ibid 36). I have not addressed the various proposals for enacting a constitution in Israel and the references therein to the matter of language; that matter lies outside the purview of this case. Therefore, prima facie, as opposed to the sharpened legal and political disputes, in all that relates to the practical level, the gap is not really that wide.

 

H.I shall return to my opening remarks. The essence is not study, but deed, and, with it, common sense. There is a proper place for legal disputations and from every possible angle. They are part of the dialog, and at times the debate, in the political, public, academic and legal arena, which probably will not end in the near future. Perhaps we will see this debate concluded if the State of Israel completes its constitutional project, a goal to which I personally aspire. In the meantime, however, my advice, as stated above, is “say little and do much”, both in terms of studying the Arabic language and in terms of using it, out of respect towards the minorities among us. This does not prejudice the Hebrew language or Israel's essence as a Jewish and democratic state. On the contrary, in the very honor it bestows upon its minorities, the majority society shall gain honor for itself.

 

Justice

 

Justice N. Hendel:

 

I concur with my colleague Justice S. Joubran's extensive and thought provoking judgment and with Justice E. Rubinstein's important remarks.

 

 

Justice

 

 

Now, therefore, it was ruled as per Justice S. Joubran's judgment.

 

Given today, the 5^th of Cheshvan, 5774 (October 9, 2013)

 

 

Justice                                     Justice                                     Justice