Contracts

 

 

 

President D. Beinisch

I concur with the judgment of my colleague, Justice E. Hayut, and would like to briefly add my own comments in support of the conclusions elucidated in her opinion.

1.    First, it should be mentioned that in the initial stages of these judicial proceedings, the respondents were not opposed to handing over the protocols of the Investigation Committee and additional documents submitted to the Committee, without revealing the names of the witnesses or other identifying details (see e.g. the letter of Adv. Lin of 25 May 2004 to the University's attorneys, at the beginning of which she suggested the non-disclosure of the witnesses' names, as opposed to the contents of their testimony or their letters – Appendix 16 of Rs/1 of the respondents' response to the application for an interim order; see further, para. 17 of the Regional Labour Court's judgment and para. 9 of the  National Labour Court's judgment, from which it emerges that the respondents proposed deleting the names of witnesses from the material requested in order "to prevent prejudice to the interests of the parties").  In their response to the petition in this Court, the attorneys for the respondents similarly "agreed to the deletion of the names in the interest of striking a balance as is customary in this kind of case", despite their observation that the identity of the witnesses might be relevant in assessing the reasonability of the conclusions reached by the Investigation Committee (response to petition, paras. 303-304). At all events, it is undisputed that the respondents did not appeal against the National Labour Court's ruling that the names of the speakers and any other identifying detail were to be deleted from any protocols that had not yet been submitted for examination, and that the other documents would be submitted to the Regional Labour Court, which would decide on the deletion of details "liable to be prejudicial to persons who had no interest in the proceedings". Under these circumstances the question for us to decide is whether the University was entitled to refuse to disclose the contents of the protocols that had yet to be submitted for the respondents' inspection and the contents of the additional documents that were presented to the Investigation Committee, subject to the deletion of the witnesses’ names and other identifying details.

In this context it should also be mentioned that the University is not a "public authority" for purposes of the Freedom of Information Law, 5758-1998, and as such the provisions of that Law are not directly applicable to it, other than with respect to its financial management (see O.G 5766, 1050; also cf. per President Barak in Technion – Israeli Technological Institute v. Datz [36], p. 433, para. 15). Under these circumstances I concur with the finding of Justice Hayut, which was also accepted by Justice Naor, to the effect that we were not presented with a suitable factual-legal background for the purpose of determining whether the University is a hybrid body with the characteristics of a public body.  Bearing this in mind, the guiding assumption exclusively for purposes of this litigation, and without ruling on the matter, must be that the voluntary Investigation Committee established by the University does not have public characteristics for purposes of the respondents' application for the disclosure of documents, and therefore, the norms of public law should not be applied (see para. 17 of the judgment of Justice Hayut and para. 7 of Justice Naor's judgment).

2     For the reasons set out at length in the judgment of my colleague, Justice Hayut, I too am of the view that the protocols and other documents under discussion are relevant to the dispute between the parties in the Regional Labour Court, and that the University has not demonstrated any privilege that could prevent the disclosure of the material requested.

There is no real disagreement between the parties that no actual statutory privilege exists that is applicable under the circumstances of this case. The University's central argument was that a new case-law privilege should be recognized in order to protect the constitutional right to privacy of the witnesses who appeared before the Investigation Committee, and in view of the public interest in protecting the proper functioning of voluntary investigation committees in academic institutions.  On this matter, we have already held in previous cases that "[i]n civil litigation the rule is that the disclosure of any material relevant to the dispute being adjudicated by the court should be as broad as possible", and [therefore], "…only in special and exceptional cases will a privilege be recognized" (per Justice D. Dorner, Shimshon v. HaPoalim Bank Ltd. [25], at p. 193; per President A. Barak in Hadassah Medical Association v. Gilead [5], at para. 5). In the current circumstances, I share the view of my colleagues, Justice Hayut and Justice Naor, that the gravity of the damage to the occupation and dignity of the respondents, and the need to ensure a fair proceeding which enables them to effectively defend themselves from the allegations, mandates the disclosure of the contents of the protocols and other documents that were before the Investigation Committee.  This conclusion stands even under the assumption that the disclosure may cause damage – the extent of which is unclear - to the privacy of the witnesses and to the activities of voluntary, internal university investigation committees.

       Here it should be noted that we have not examined the requested documents, and we therefore agree that one cannot categorically rule out the possibility of the witnesses' privacy having been infringed as a result of the disclosure. Justice Hayut stated that "Prima facie… any disclosure of the information in a proceeding between the petitioner and the respondents in the Regional Labour Court infringes the privacy of the complainants and the witnesses to the extent that they received a promise of confidentiality restricting the scope of disclosure of information…". According to Justice Hayut, however, the extent of the damage is relatively limited, and it is not equivalent to the respondents’ right to a due process, a right which would be impaired without the disclosure of the protocols and the other requested documents (para. 21 of her judgment).  Justice Naor too noted that “since these testimonies are not before us, I am prepared to assume, for argument’s sake, that there was an infringement of privacy with respect to some of the complaints or testimony… Even assuming that there was a certain infringement of privacy, when balanced against the harm to the respondents, the respondents would seem to have the upper hand" (para. 4 of her judgment; emphasis at source – D.B).  In support of the above we would emphasize that in the current case the respondents do not oppose receiving material from which the names of witnesses and other identifying details have been deleted. This detracts from the force of the University’s claims concerning the infringement of the witnesses’ privacy resulting from the submission of the material, and its subsequent “chilling effect” on the activities of voluntary investigation committees. As such, in my view, even without having examined the material that the respondents wish to see, it may be said that the severity of the infringement to the witnesses’ privacy is mild, even if only because of the agreement not to reveal the witnesses’ names and other identifying details. Considering all the above, I too am of the opinion that the circumstances of this case do not warrant the non-disclosure of the requested material.

Further to the above, and without ruling on the matter, I would note that in my view one cannot rule out the possibility that in exceptional cases, the public interest might justify recognition of a case-law based privilege which would prevent the divulging of sources who testified before voluntary investigation committees, for example - committees charged with the investigation of matters in which there is a major public interest in receiving information, the non-disclosure of which is a condition for its submission, or the revealing of which may jeopardize the possibility of its continued receipt (see and compare to the arrangement prescribed in s. 9 (b)(7) of the Freedom of Information Law, 5758-1998).  Exceptional circumstances of this kind do not exist in the case before us. The University set up a voluntary Investigation Committee in order to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Without detracting from the importance of this kind of committee as a tool for enhancing the quality of teaching and the streamlining of the support systems in academic institutions, it cannot be said that there is a critical public interest that supersedes the broad principle of disclosure, the reasons for which lie in the public welfare and the aspiration to expose the truth and do justice in the judicial process, and in the respondents’ personal interest in properly defending themselves against the damage to their occupation and their dignity.

3.    As to the contractual promise of confidentiality – the differences between Justice Hayut and Justice Naor in this respect do not appear to be substantive.  The assumption is that the Investigation Committee ought to have anticipated the possibility of its conclusions serving as the basis for measures taken against the respondents, and even that legal action may ensue. Bearing that in mind, both of my colleagues agree that the Investigation Committee was unauthorized to give the witnesses any absolute promise regarding the confidentiality of their testimonies which in the nature and scope would contradict the law governing the disclosure of documents; this is also the case in the absence of a critical, weighty public interest which could justify the recognition of a privilege by force of the very existence of a contractual promise of confidentiality,

As noted in para. 21 of Justice Hayut’s judgment, the University’s central argument against the disclosure of the requested material is based on the concern that the respondents would settle accounts with those who had testified against them.  Without expressing a view as to whether this concern is substantiated and justified on its own merits, it appears that from the University’s perspective the solution lies in the non-disclosure of the names and other identifying details of the witnesses, as distinct from the disclosure of the details of the testimony itself.   My view is that in the absence of any recognized privilege, as explained above, the most that the Investigation Committee could have promised the witnesses and complainants would have been to attempt  to avoid disclosure of their names or of any other identifying details – as distinct from the contents of their testimony.  This could be regarded as a promise of sorts to endeavor not to divulge the identities of the witnesses in the event of a legal proceeding, so as to encourage the cooperation of those giving information with the Committee, in accordance with the applicable statutory provisions (on the "obligation to make an effort” see and compare: CA 444/94 Orot Artists Representation  v. Atari [59], at para. 7).

In the circumstances of this case, the effort not to disclose the identity of the witnesses who appeared before the Committee bore fruit, because as stated, it was agreed, or at least the respondents were not opposed, that the material requested be examined without disclosure of the witnesses’ names. Absent that consent, the promise to “make the effort” may have been translated into an argument  on  the University’s part that it was initially necessary to ascertain whether the disclosure of the witnesses’ identity was essential to the respondents’ defense, in view of the infringement of the privacy of witnesses who were not party to the proceeding, and whose position on the disclosure of the material had not been heard (see and compare, in another context, AP 3542/04 Salas v. Salas [60], per Justice Proccaccia at para. 14, hearing an application for the disclosure of private material in the possession of a third party who was not a litigant in the proceeding). Either way, the University would have been left with the option of deciding whether to refrain from disclosing the witnesses’ identity by agreeing to accept the suit in the Labour Court (on this matter, see para. 6 of Justice Naor’s judgment).

Thus, as opposed to the ruling of the National Labour Court, my view is that the absence of privilege does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it. At the same time, the nature and extent of such a promise must derive from the statutory conditions applicable to the matter. On the face of it, I think that in these specific circumstances the promise given by the Investigation Committee was not, in essence, violated, in view of the decision that the material would be given to the respondents without revealing the witnesses’ names. However, the contractual relationship between the Investigation Committee and the witnesses who appeared before it is not the subject of this case, and I therefore see no reason to decide on the matter.

I therefore concur in the judgment of Justice Hayut. I would add that any disputes arising between the parties relating to the practicalities of the deletion of witnesses names and other identifying details from the protocols before their submission to the respondents - should be resolved before the Regional Labour Court.

Petition denied.

9 Iyyar 5768.

14 May 2008.

 

CA 3798/94

A

v.                            

1. B

2. Attorney-General

3. Child Welfare Service

 

The Supreme Court sitting as the Court of Civil Appeals

[3 October 1996]

Before Vice-President S. Levin and Justices G. Bach, M. Cheshin,

I. Zamir, D. Dorner

 

Appeal on the judgment of the Jerusalem District Court (Justice S. Brenner) dated 16 June 1994 in AC 64/93.

 

Facts: The appellant and his wife were married for many years but remained childless. The appellant began a relationship with a 15 year-old girl, the first respondent, in order to have a child by her, and she did indeed become pregnant and bear his child. When the child was born, the girl wanted the child to be adopted by a third party, but the appellant wanted to raise the child with his wife.

The main witness in the trial court was Mr Rami Bar-Giora, an expert psychologist, who testified that if the child were raised by the appellant and the appellant’s wife, he foresaw major risks to the emotional health of the child because of the circumstances of the child’s birth, whether these were revealed to the child or concealed from him.

The trial court held that the child was adoptable for two reasons: under section 13(7) of the Adoption Children Law, the appellant was ‘incapable of looking after the child properly because of his behaviour or situation’, and under section 13(8) of the Law, his refusal to give his consent to the adoption derived ‘from an immoral motive’ or was ‘for an unlawful purpose’.

 

Held: (Justices D. Dorner, I. Zamir, G. Bach) The case fell within the scope of section 13(7) of the Adoption of Children Law. The appellant was incapable of looking after the child properly because of the unique circumstances of the case, as described by the expert in his opinion. Section 13(8) of the law was not applicable, since the refusal to consent to adoption was in itself not immoral or unlawful.

(Vice-President S. Levin) The case did not fall within the scope of any of the grounds in section 13 of the Law that allow a child to be declared adoptable. Nonetheless, the law should be read to include an additional rule, which provides that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy with respect to acts which led to the birth of the child.

(Justice M. Cheshin) The case did not fall within the scope of any of the grounds in section 13 of the Law that allow a child to be declared adoptable. Nonetheless, a fundamental and independent principle of Israeli law is the principle: ‘Have you committed murder and also taken the inheritance? (I Kings 21, 19). Under this principle, which has the same status as statute, a person may not be allowed to benefit from his misdeeds.

 

Appeal denied.

 

Basic Laws cited:

Basic Law: Administration of Justice, s. 6.

Basic Law: Freedom of Occupation.

Basic Law: Human Dignity and Liberty.

 

Statutes cited:

Adoption of Children Law, 5720-1960, s. 11(3).

Adoption of Children Law, 5741-1981, ss. 1(b), 8, 8(a), 13, 13(2), 13(4), 13(5), 13(6), 13(7), 13(8).

Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, s. 1.

Foundations of Justice Law, 5740-1980, s. 1.

Inheritance Law, 5725-1965.

Judges Law, 5713-1953, s. 11.

Legal Capacity and Guardianship Law, 5722-1962, s. 15.

Penal Law (Amendment no. 39) (Preliminary Part and General Part), 5754-1994.

Penal Law, 5737-1977, s. 1.

Registrars Ordinance, 1936, ss, 8, 8(a).

 

Israeli Supreme Court cases cited:

[1]           CA 549/75 A v. Attorney-General [1976] IsrSC 30(1) 459.

[2]           CFH 7015/94 Attorney-General v. A [1996] IsrSC 50(1) 48.

[3]           CA 436/76 A v. State of Israel [1977] IsrSC 31(2) 239.

[4]           CA 577/83 Attorney-General v. A [1984] IsrSC 38(1) 461.

[5]           CA 212/85 A v. B [1985] IsrSC 39(4) 309.

[6]           CA 301/82 A v. Attorney-General [1983] IsrSC 37(4) 421.

[7]           CA 623/80 A v. Attorney-General [1981] IsrSC 35(2) 72.

[8]           CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[9]           CA 211/89 A v. Attorney-General [1989] IsrSC 43(2) 777.

[10]         CA 418/88 A v. Attorney-General [1990] IsrSC 44(3) 1.

[11]         CA 437/85 A v. Attorney-General [1990] IsrSC 44(3) 18.

[12]         CA 604/89 A v. Attorney-General [1991] IsrSC 45(1) 156.

[13]         CA 50/55 Hershkovitz v. Greenberger [1955] IsrSC 9 791; IsrSJ 2 411.

[14]         CA 493/88 Attorney-General v. A [1988] IsrSC 42(4) 860.

[15]         CA 3199/90 A v. Attorney-General [1991] IsrSC 45(3) 488.

[16]         CA 228/62 Tzemach v. Attorney-General [1963] IsrSC 17 306.

[17]         CA 339/71 Kommemi v. Attorney-General [1971] IsrSC 25(2) 795.

[18]         EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

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

[20]         Mot 337/68 Malloyds v. Yaakov Yeffet & Co. Ltd [1968] IsrSC 22(2) 470.

[21]         CA 6106/92 A v. Attorney-General [1994] IsrSC 48(4) 221.

[22]         CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [1994] IsrSC 48(3) 705; [1992-4] IsrLR 369.

[23]         CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[24]         CrimApp 1986/94 State of Israel v. Amar [1984] IsrSC 38(3) 133.

[25]         CA 3077/90 A v. B [1995] IsrSC 49(2) 578.

[26]         CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[27]         CA 4628/93 State of Israel v. Apropim Housing and Promotions (1991) Ltd [1995] IsrSC 49(2) 265; [1995-6] IsrLR 63.

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

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

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

[31]         LCA 7504/95 Yasin v. Parties Registrar [1996] IsrSC 50(2) 45.

[32]         LCA 2316/96 Isaacson v. Parties Registrar [1996] IsrSC 50(2) 529.

[33]         CA 522/87 A v. Attorney-General [1987] IsrSC 41(4) 436.

 

Israeli District Court cases cited:

[34]         AC (Hf) 9/70 A.B. v. Attorney-General IsrDC 71 326.

 

American cases cited:

[35]         Riggs v. Palmer 22 N.E. 188 (1889).

[36]         Craig v. Mia W 500 N.Y. Supp. 2d 568 (1986).

[37]         LaCroix v. Deyo 437 N.Y. Supp. 2d 517 (1981).

[38]         Hines v. Sullivan 431 N.Y. Supp. 2d 868 (1980).

 

English cases cited :

[39]         In re F. (T.) (An Infant) [1970] 1 W.L.R. 192 (C.A.).

 

Jewish Law sources cited:

[40]         Ezekiel 18, 2.

[41]         Jeremiah 31, 28.

[42]         II Samuel 13, 11-13.

[43]         Babylonian Talmud, Tractate Baba Metzia, 38b.

[44]         Psalms 16, 7; 103, 13.

[45]         Isaiah 49, 15.

[46]         Deuteronomy 32, 11.

[47]         Lamentations 4, 3.

[48]         Jerusalem Talmud, Tractate Berachot, 1, 5.

[49]         Babylonian Talmud, Tractate Yoma, 85a-b.

[50]         I Kings 21, 17-19, 23-24; 22, 37-38.

[51]         II Kings 9, 30-37.

[52]         M. Silberg, Kach Darko Shel Talmud (2nd ed., 1964).

[53]         Babylonian Talmud, Tractate Sukkah, 45b.

 

For the appellant — A. Yemini.

For the first respondent — I. Cahan.

For the second and third respondents — O. Reuveni, Senior Assistant to the State Attorney and Director of Civil Matters at the State Attorney’s Office.

 

 

JUDGMENT

 

 

Justice D. Dorner

1.             On 22 June 1995 we decided to deny the appellant’s appeal on the judgment of the Jerusalem District Court, in which his son was declared adoptable. The following are our reasons for denying the appeal.

2.             The appellant, who has been married for many years, had no children. The prolonged medical treatments that the appellant and his wife underwent did not help. The desire for a child became the centre of the couple’s lives and caused tension between them. In her statement to the police, the appellant’s wife said that after the doctors — who had despaired of treating her — raised the possibility that the appellant was the infertile one and suggested using a donor’s sperm, the appellant said to her on several occasions that he ‘will try with someone else to find out if he is alright, and should that girl becoming pregnant, then we will take the child away from her and raise it’.

He did exactly that. The appellant began to court a 15 year-old girl (hereafter — the girl), a daughter of a neighbouring family with whom he was friendly. The girl, whose mother had died of cancer shortly before, found in the appellant, who was twenty years older than her, the warmth and love that she needed. The girl was responsive to the appellant and had sexual relations with him; as a result, she became pregnant. When she told the appellant about her pregnancy, he did not inform her of the possibility of terminating the pregnancy, but he calmed her with conflicting promises. On one occasion he promised her that he would divorce his wife and marry her; on another occasion he told her that he and his wife would raise the baby. When the girl’s family found out, from an anonymous telephone call, about the intimate relations between her and the appellant, she was sent for a medical examination, and then it transpired that she was in the twenty-ninth week of her pregnancy and it was not possible at this late stage to terminate the pregnancy.

The family made a complaint to the police, and a month after the complaint was made, the appellant informed the Child Welfare Service that he intended, together with his wife, to raise the child that was about to be born. Meanwhile, criminal proceedings were begun against the appellant. He pleaded guilty and was convicted of the offence of having intercourse with a minor, and on 14 April 1993 he was sentenced to eighteen months’ imprisonment, of which six were a custodial sentence and the remainder was a suspended sentence.

3.             The child was born on 4 September 1993. Three days after the birth, on 7 September 1993, the girl signed a form consenting to adoption. She further said that she opposed giving the child to the appellant and his wife. The child was therefore placed with a foster family.

4.             The appellant filed an application in the Jerusalem District Court, in which he asked that the child be given to him. The Attorney-General, for his part, petitioned to have the child declared adoptable. The two applications were heard together. The parties agreed that the parenting skills of the appellant and his wife should be examined by a court-appointed expert. For this purpose the court appointed the psychologist Rami Bar-Giora. Mr Bar-Giora found that, in the circumstances, both the appellant and his wife were unable to act as parents, and that if they raised the child they would cause him serious damage. His conclusion was that the child should be placed for adoption. He wrote, inter alia, that:

‘… the intensive campaign of the [appellant] and [his wife] to “get a baby” does not necessarily imply, in my opinion, a guarantee of the parental skills required for the baby to be raised by [the appellant] — he will grow up deformed by two major scars: that he is the child of his father only, and that he is the product of a relationship marred by accusations and bitterness: the mental health of this child, should he be raised by his biological father, will not allow him to live under a veil of secrecy, while the scars that he bears are known to everyone around him but are hidden from him…

With regard to the mental health considerations, I therefore regard all these potential dangers as a cause of probable disaster which should in no way be encouraged…

…

… I foresee many problems with regard to the ability [of the appellant’s wife] to tell the child, if she is indeed allowed to raise him, the truth about his mother and his father and the circumstances of his birth; ¬I foresee many difficulties for the child if as stated she is allowed to raise him… It will be far more difficult for her [the appellant’s wife] if she is forced to leave the supportive environment of her family, if the family moves away. Should the baby be placed for adoption, he will be able to confront the circumstances of his birth when he is an adult and not dependent on those who gave birth to him: dealing with these circumstances when he is a child seems to me too complex and too hard a challenge [for the appellant and his wife] who want to raise him.

…

Therefore I recommend that the baby not be given to his biological father, despite his strong desire to raise him, because of the many serious potential dangers arising from this; these should certainly not be imposed on a newborn child whose future — which will not be easy — is still before him, and we should search for the least dangerous and most promising option for his healthy development: there is no alternative other than closed and anonymous adoption’ (parentheses and emphasis supplied).

The District Court (Justice S. Brenner) found, on the basis of the evidence brought before it, that the appellant planned to father a child for himself and his wife by having intercourse with the girl. Its conclusion was that this fact in itself showed — as a matter of law —that the appellant was incapable of raising the child, and that in the circumstances his refusal to allow the child to be adopted derived from an immoral motive. In relying also on the psychologist’s opinion and the welfare officers’ report, the Court decided to deny the appellant’s application to give him the child, and it declared the child adoptable under sections 13(7) and 13(8) of the Adoption of Children Law, 5741-1981. In his judgment, Justice Brenner wrote, inter alia, the following:

‘The case is exceptional and unique in its nature and circumstances. According to the expert’s opinion — which is strengthened by the report and testimony of the welfare officers for adoption (and even by the various answers given by the petitioner and his wife) — the inability of the appellant [and his wife] to raise the child has been clearly proved… The possibility of the respondent submitting an opinion (additional to, and different from, that of Mr Rami Bar-Giora) was raised by the respondent, during the trial, more than once. But no such opinion was actually submitted… I will add that I believe, from a legal viewpoint, that anyone capable of planning and fathering a child for himself and his wife by means of a girl who is a minor, as happened in this case, shows prima facie that he and his wife are both unfit to be parents. For… there is sufficient evidence to find that the pregnancy and birth of the child were planned (by the respondent and his wife) and I do not accept their explanations, in cross-examination, about the reply [of the appellant’s wife] at the police station, which was quoted above’ (square parentheses supplied).

An appeal was filed against this judgment

5.             The main argument of counsel for the appellant, Advocate Yemini, was that the Adoption of Children Law does not recognize immoral behaviour of a parent resulting in the birth of the child as a ground for adoption. The Law contains an exhaustive list of eight grounds for adoption, and the behaviour of the parent prior to the birth of the child is not one of them. He argues that the psychologist’s opinion does not rely on an objective lack of parenting ability on the part of the appellant and his wife, but merely on the best interests of the child, and the best interests of the child in themselves do not constitute a ground for adoption.

In the reply to the appeal, counsel for the Attorney-General, Advocate Reuveni, argued that the finding of the District Court that the appellant is not fit to raise the child is founded on the report of the welfare officers and the expert’s opinion, and there is no reason to set this finding aside. Alternatively it was argued that the Adoption of Children Law contains a lacuna, which the court may fill by relying on the basis of the fundamental principle — which reflects the purpose of the law — that a person cannot acquire a right by carrying out a criminal act. The appellant, who planned to father for himself a child by means of intercourse with a minor, lost his natural right to raise the child that was born from this forbidden intercourse.

6.             As stated, the District Court considered both applications together: the appellant’s petition to deliver the child into his custody and the Attorney-General’s application to declare the child adoptable. The Attorney-General’s argument regarding the filling of a lacuna in the Adoption Law, although argued in the alternative, is an independent argument. According to this argument, the appellant lost his right to raise the child in any case, even if the child is not given over for adoption — for example if the mother raises him herself — and even if being brought up by the appellant does not harm his best interests.

I cannot accept this argument.

7.             In my opinion, the moral principle underlying the argument does not apply to parental relationships and it is applicable only to property rights. For this reason, in comparative law and our case-law the principle has been applied only to such rights.

In the famous judgment of the Court of Appeal of the State of New York in Riggs v. Palmer (1889) [35], at p. 190, it was held that, in the absence of a statutory provision, a beneficiary under a will, who murdered the testator to prevent him from changing it, cannot inherit from him. Justice Earl wrote as follows:

‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are directed by public policy, have their foundations in universal law administered in all civilized countries, and have nowhere been superseded by statutes.’

In our law, the rule ex turpi causa non oritur actio (no action can be based on a disreputable cause) is applied only with regard to property rights and is accepted in the laws of contracts and torts (G. Shalev, The Laws of Contracts, Din, 2nd edition (1995), 355; A. Barak, ‘Denying the claim of an injured person for reasons of the Public Interest’, The Law of Torts — General Principles of Torts, Magnes, second edition, G. Tedeschi ed. (1977), 340).

8.             The law is different when we are concerned with the rights of a parent to raise his child. The rule established in American case-law is that the principle laid down in Riggs v. Palmer [35] should not be applied to this right of a parent. This was explained by Justice Weiss in Craig v. Mia W (1986) [36], at pp. 569-570:

‘… the rule delineated in Riggs v. Palmer… should not apply here. Rather, that rule should be limited to situations involving property rights, or economic or monetary gains, obtained as a result of wrongdoing… The commission of the crime of statutory rape does not preclude petitioner’s rights to maintain the paternity and custody proceedings. That conduct is to be considered only as it relates to the child’s best interest at the custody hearing…’

See also LaCroix v. Deyo (1981) [37], at p. 522.

It is possible that the case before us, in which the appellant committed the offence with the intention of fathering the child, could have been distinguished from the cases considered in American case-law, and that the rule that a person may not benefit from the fruits of his forbidden act could have been applied. But the right of the natural parent that he, rather than someone unrelated, should raise his child is also a duty. See the remarks of Justice H. Cohn in CA 549/75 A v. Attorney-General [1] and my remarks in CFH 7015/94 Attorney-General v. A [2], at pp. 65-66.

This duty of the parent must be weighed against the right of the child that his natural parents should provide for his emotional and material needs. See section 15 of the Legal Capacity and Guardianship Law, 5722-1962; CA 436/76 A v. State of Israel [3], at p. 243; CA 577/83 Attorney-General v. A [4], at pp. 467-468; and CA 212/85 A v. B [5], at p. 312).

The right of the child takes precedence. This priority is also reflected in the Adoption of Children Law, in which the best interests of the child are of prime importance. See section 1(b) of the Adoption of Children Law; CA 301/82 A by her guardian v. Attorney-General [6], at p. 424; Attorney-General v. A [2], at pp. 65-66). This right of the child is independent. It does not derive from the parent’s right. The child is not the property of the parent. He is an independent entity, and he has interests of his own (CFH 7015/94 Attorney-General v. A [2], ibid.). Where the best interests of the child so demand, he should not be denied his right to be raised by his natural parent — even if that parent acted wrongly in the way in which he fathered him. The criminal behaviour of the parent in the manner of fathering his child cannot affect the right of the child to be raised by the parent when being raised by the parent is in the best interests of the child. Of this the Bible literally says: ‘Shall fathers eat unripe fruit and their sons’ teeth be blunted?’ (Ezekiel 18, 2 [40]; see also Jeremiah 31, 28 [41]).

9.             Of course, the best interests of the child are not in themselves a ground for adoption. See, for example, CA 623/80 A v. Attorney-General [7], at p. 75. Notwithstanding, there is a correlation between the grounds set out in section 13 of the Adoption Law and the best interests of the child, since these grounds are merely a list of cases in which the best interests of the child are harmed because the parent does not carry out his duty towards him or is incapable of doing so.

It is indeed true that the eight grounds for adoption set out in section 13 are an exhaustive list; in other words, any case not included in section 13 cannot be a ground for adoption. See CA 235/85 A v. Attorney-General [8], at p. 13; CA 211/89 A v. Attorney-General [9], at p. 779.

Nonetheless, we should note that one of the grounds for adoption is a catch-all provision — namely the ground under section 13(7) which concerns a parent who is incapable, because of his situation or behaviour, of taking proper care of his child, i.e., of ensuring his welfare. The ‘situation’ or ‘behaviour’ that constitute a ground for adoption under section 13(7) are therefore determined according to the result they create, which is harm to the welfare of the child. This was discussed by Justice Cheshin (in CFH 7015/94 Attorney-General v. A [2], at pp. 108-109):

‘Knowing all of this, we can also know that the ground of parental incapacity derives solely from the duties of the parent to his child; the rights of the child vis-à-vis the parent; the recognised interest of the child; the best interests of the child. Can we honestly and wholeheartedly say that section 13(7) is not concerned with the “best interests” of the child? Admittedly, section 13(7) of the Adoption Law does not speak of a ground for adoption that is based on the “best interests of the child” per se — the best interests of the child on their own, the best interests of the child in vacuo. But I believe that if we examine more carefully the “incapacity” of a parent to “care properly for his child”, this will lead us to the best interests of the child and the welfare of the child in their purest sense...

…

We can therefore see that the best interests of the child and the welfare of the child are not expressly mentioned in section 13(7) of the Adoption Law, but they are the heart and soul of this ground for adoption: without these, the ground will not exist, and these are the essence of the ground from beginning to end.’

Indeed, whenever the best interests of the child are likely to be seriously harmed as a result of the situation or behaviour of the parent, to an extent that it can be said that the parent is incapable of looking after the child properly because of his situation or his behaviour, a ground for adoption comes into being.

10. A child is likely to be seriously harmed by being raised by a father who fathered him by means of illicit intercourse with his mother, and, what is more, did so in pursuit of a preconceived plan, in order to acquire a child for himself and his infertile wife. A child born in such circumstances is likely — because of the situation created thereby — to suffer serious harm.

11. In our case, the court appointed its own expert, with the appellant’s consent, to examine the appellant’s parental capacity. As stated, the expert found that, in the special circumstances of the case, the appellant did not have parental capacity, because of his situation that he created by fathering the child by means of a criminal offence. The appellant did not present a contrary opinion; consequently the opinion of the court expert is currently the only one before us. This opinion is logical and persuasive, and I see no reason not to accept it.

12. Even so, I can conceive of cases of illicit intercourse where the best interests of the child will require us to leave him with his parent. Indeed, the existence of a ground for adoption is not the final word on the subject, and the decision whether to declare a child adoptable after a ground of adoption has been proved depends on whether such a declaration is in his best interests.

In our case, I am persuaded, on the basis of the aforementioned opinion of the psychologist and because of the special circumstances of the case, that the best interests of the child require him to be placed for adoption. Once it has been proved that a ground for adoption exists, and that the best interests of the child are that he should be declared adoptable, I believe that the appeal should be denied.

 

 

Vice-President S. Levin

1. The appellant and his wife, who have been married for many years, had no children. Therefore the appellant decided to seduce the daughter of his neighbours (a girl who was fifteen years old), whose mother had recently died of cancer, so that she would bear him a child, who would be raised by himself and by his wife. The girl found in the appellant, who was twenty years older than her, support and love. She became pregnant from the appellant. He did not appraise her of the possibility of terminating the pregnancy, and when her family found out, it was already too late to terminate the pregnancy. On 4 September 1993, the joint child of the appellant and the girl was born. The girl signed a consent form for adoption. The appellant asked for the child to be given to him. The girl said that she was completely opposed to the appellant and his wife being given the child. The Jerusalem District Court declared the child adoptable, on the basis of paragraphs (7) and (8) of section 13 of the Adoption of Children Law (hereafter — the Law). This led to the appeal before us, which we denied. These are my reasons for denying the appeal.

2. It is hard to find words to describe the deeds of the appellant, who unashamedly made use of the body of a young girl in order to exploit her as an instrument for gratifying his desire for a child, while humiliating her feelings, her innocence, her dignity and the dignity of her family. The case is unparalleled throughout the world, and the parties could not find a similar case in all the vast literature in this field, and even my own research found nothing. Does the case fall within the scope of paragraphs (7) and (8) of section 13 of the Law?

The rule set out in section 8 of the Law is that an adoption order may not be given without the consent of the parents of the child under discussion. Under the aforementioned section 13, the court may declare a child adoptable even without parental consent, if it finds that one of the following exists:

‘(7) The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation;

(8) The refusal to give the consent derives from an immoral motive or is for an unlawful purpose.’

3.             As was stated in the Report of the Commission for Examining the Adoption of Children Law (1979), headed by Justice Etzioni (at p. 20), a report that served as the basis for the Law, the duties of natural parents to their children were defined on two levels: the first duty — the material one — to feed, maintain and take care of the material needs of the child, and the second duty — the spiritual one — to give the child the affection and love that cannot be bought with money, and to satisfy his psychological and emotional needs. A plain reading of the aforeaid section 13(7) shows that the court may declare a child adoptable if there is no parent that is able to take care of the child in both of the aforesaid two meanings, subject to the last part of the said paragraph. It is established case-law that this section should be used only with extreme caution: (CA 418/88 A v. Attorney-General [10]; CA 437/85 A v. Attorney-General [11]; CA 604/89 A v. Attorney-General [12]). Only in rare cases will the court declare a child adoptable merely because of the possibility that leaving him with his natural parents may cause the child harm as a result of a severe, serious and dangerous disability of his parents, and the best interests of the child are not usually taken into account, on their own, as a factor for declaring the child adoptable. It has been further held that the list of grounds set out in section 13 of the Law is a closed list: CA 235/85 A v. Attorney-General [8]). All these rulings, which justify a narrow interpretation of section 13(7), indicate that a heavy onus of proof rests with the party requesting that a minor be declared adoptable, in order to override the ‘blood ties’, within the meaning of this expression in the remarks of the late Vice-President S. Z. Cheshin in CA 50/55 Hershkovitz v. Greenberger [13], at p. 800 {420}; in other words, the presumption is that a child’s proper place is with his natural parents.

As stated in CA 232/85 A v. Attorney-General [8], the court must examine, in the first stage, whether the parent is indeed incapable of taking proper care of his child because of his behaviour or situation, both in the present and in the future, and, in the second stage, whether the child should be declared adoptable (see also CA 493/88 Attorney-General v. A [14]); note that we are concerned with the behaviour of the parent in the present and the future and not with behaviour in the past. In my opinion, it cannot be doubted that the appellant’s behaviour in the present or in the foreseeable future does not justify denying him his natural paternal right. Nor does it seem to me that the appellant’s ‘situation’ justifies this either. No-one questions the ability of the appellant to feed and support the child and to provide for his physical needs, and in my opinion it has not been proved that the appellant, who took such ‘pains’ to obtain a child by illicit methods, is incapable of giving the child the love and affection that a father normally gives his child.

4.             The learned judge relied on an obiter dictum of Vice-President Elon in CA 3199/90 A v. Attorney-General [15], at p. 491, that in especially serious cases — and this case is one of these — the court may declare a child adoptable even if there is no evidence that the parent has de facto been unable to look after his children improperly (cf. also CA 604/89 A v. Attorney-General [12], at pp. 161-162); I do not dispute this ruling, and if the condition of parental incapacity in the aforementioned sense existed, I would not disagree with the District Court’s reasoning. In this respect, the District Court relied upon the opinion of the expert Mr Rami Bar-Giora, from which it concluded that, in the present case, there exists a combination of personal characteristics of the appellant and his wife together with the unique situation that has been created, which was even unforeseen by the Etzioni Committee, and the appellant’s parental incapability was determined on the basis of this combination of factors. In this regard, the expert wrote in his opinion that dealing with the circumstances of the child’s birth seemed to him too complex and too great a challenge for the appellant and his wife who wished to raise the child; the appellant avoided answering whether he would tell the child the circumstances of his birth, and it emerged that he would not oppose a meeting between the child and his mother, leaving the consequences of this in the hands of fate. The District Court also quoted the following paragraph from the expert’s opinion:

‘If the family [of the appellant and his wife] raises the child, it must go into “exile” and it will always be in danger of discovery of the secret. In any event, the sensational story will pursue the child and whether it reaches the child before his parents’ explanations or reaches him after them, it will, because of the outlook of society, create a disturbing and problematic source of pressure on all the persons concerned’ (square parentheses supplied).

In the expert’s opinion, the raising of the child by the appellant’s family would constitute a trap:

‘In other words, there will be difficulties on all sides. It they tell him the truth, that is very complex, and if they hide it from him, that is very dangerous.’

The expert also considered the physical proximity of the homes of the two families, the appellant’s family and the family of the mother, the acquaintance between them and the fact that, over time, it would be impossible to hide from the child the circumstances of his birth. The expert testified in cross-examination also that he had:

‘nothing whatsoever to say against the parental capacity of both of them [the appellant and his wife]. All that I wrote, I wrote in connection with their potential parenting of this child with his unique circumstances’ (square parentheses supplied).

The learned judge did not ignore the case-law rule that the best interests of the child cannot constitute a ground for adoption on its own; but when he reached the conclusion that a ground for adoption had been proved, he thought that this consideration should be taken into account when the court exercised its discretion. The expert said as follows:

‘The mental health of this child, should he be raised by his biological father, will not allow him to live under a veil of secrecy, while the scars that he bears are known to everyone around him but are hidden from him. The possibility that his father will be arrested “because of him or because of the desire to bring him into the world” may be another immediate and burdensome scar that should not be imposed on [his wife] who will be obliged to raise him alone for a decisive and critical period of time for the bonding of mother and child. With regard to the mental health considerations, I therefore regard all these potential dangers as a cause of probable disaster which should in no way be encouraged.’

With regard to the aforementioned opinion and what the expert said in cross-examination, I accept that the complications likely to be caused to the child by keeping or disclosing the secret are likely to harm his best interests, but were it not for the special circumstances surrounding the background of his birth, and were we concerned with another secret arising from other circumstances, which could exist in many families, where the keeping or disclosing of the secret could harm the child, I am not sure that the expert would have recommended taking the child from the custody of the natural parents. Since everyone agrees that the best interests of the child cannot be considered a sole criterion for declaring a child adoptable, the special circumstances of this case do not, in my opinion, fall into the scope of section 13(7) of the Law. No matter how ‘vague’ the wording of this section (see CA 418/88 A v. Attorney-General [10]), it does not allow a child to be removed from the custody of his natural parent merely because of circumstances that are unrelated to the present or future situation or behaviour of the parent, when it has been proved that, apart from considerations relating to keeping or disclosing the secret, the appellant is capable of providing the child’s physical and emotional needs, and in any case there is no proof of the contrary. As for the period that the appellant was likely to spend in prison, it transpires, in retrospect, that the appellant was imprisoned only for a short time, and therefore this consideration should not be taken into account.

5.             The court’s reliance on the expert’s opinion is legitimate in so far as it relates to the best interests of the child, and as I shall show below, this in my view is not insignificant; however, the opinion does to some extent confuse considerations of the best interests of the child, on the one hand, with ethical considerations, on the other, and in this respect the expert is no more authoritative than the court.

I have therefore reached the conclusion that the case before us does not fall within the scope of section 13(7) of the Law.

6.             I have reached the conclusion that the case before us also does not fall within the scope of section 13(8) of the Law. In this respect, the learned trial judge was of the opinion that the immoral motive lay in the ‘original sin’ of the plan to ‘acquire’ the child by illicit means, and the refusal to hand the child over for adoption could only be expressed after the child’s birth.

Section 13(8) has been considered by the Supreme Court in only two instances: in CA 228/62 Tzemach v. Attorney-General [16]), the appellant divorced his wife, the mother of seven children, who was pregnant, and became involved with an unmarried woman aged 19, whom he made pregnant and who bore him a daughter. The two parents decided to place their daughter for adoption, but when the Attorney-General filed an application to have the child declared adoptable, the appellant revoked his consent and demanded that the child should be given to him, provided that his former wife consented to this. The District Court held that the appellant’s desire to have custody of the daughter and to remarry his former wife did not derive from paternal feelings and concern for the child. Originally the appellant had made his former wife pregnant with the intention of creating strife between the two rivals, and even now he was not prepared to return to his former wife and his seven children out of a desire to take care of them, but he made his return contingent upon her accepting the girl and used it as a threat so that she would agree to take in an additional child, the daughter of her rival, and look after her. In denying the appeal, the Supreme Court held that ‘a father, who ignores the fate of his daughter and regards her merely as a means of creating strife between his wife and his mistress, and who does not care if the child of this strife will be thrown in amongst his other neglected children, is necessarily acting out of immoral motives...’ (see at p. 307). The second case (CA 339/71 Kommemi v. Attorney-General [17]), arose when section 11(3) of the Adoption of Children Law, 5720-1960, which was replaced by section 13(8), was still valid. The case concerned a child born out of wedlock. The mother agreed to adoption and the father objected, but he did not express any readiness to support the child, and even gave notice that he would be prepared to give up the child if he were paid a sum of money to pay off his debts. It was held that the father’s refusal to hand over the child for adoption derived from immoral motives or was for an unlawful purpose.

Counsel for the appellant brought before us the minutes of a meeting of the Constitution, Law and Justice Committee of the Knesset on 29 April 1981, in which (on p. 20) the members of the Committee were told of a case in which a girl, who was a minor, had a child with a married man. The man wished to continue his affair with the girl, and therefore offered to take the child into his home and raise her with his wife, provided that the affair with the girl would continue. The Committee members were told that this case led to the ground of the  ‘immoral motive’. I have also examined the case law of the District Courts and have not found any case similar to the one before us. The question of the interpretation of section 11(3) of the previous law arose incidentally in AC (Hf) 9/70 A.B. v. Attorney-General [34]. The case considered there was of a father who murdered his wife and was sentenced to life imprisonment. It was held in that case that, by committing the murder, the husband had chosen to place himself in a position in which he would be unable to discharge his obligations to his child. President Etzioni was doubtful as to whether the case could be included within the scope of section 11(3) of the previous law, nonetheless he was prepared to rule that the father, the murderer ‘…had denied himself the right to be called a father, and had severed the paternal relationship with the boy’ (at p. 328). A similar case came before the court in England in the case In re F. (T.) (An Infant) (1970) [39]. Here too the father was convicted of killing his wife, and the Court of Appeals was called upon to consider whether his refusal to give the child up for adoption was unreasonable, under section 5(1)(b) of the English Adoption Act of 1981. It was decided that the refusal was indeed unreasonable, as Justice Harman said (at p. 197):

‘It seems to me that a father, who has done the greatest wrong to his young daughter that a man can do, has small right to be heard in the choice of replacement so far as possible of the parent of whom he has deprived her.’

A study of the legislative history and the overall structure of section 13 in general of the language of paragraph (8) in particular, shows, in my opinion, that the present case does not fall within its scope, since it is of a narrower scope than its corresponding English section. Note that paragraph (8) is the only paragraph in section 13 that discusses a refusal to give consent, whereas the other paragraphs require positive proof of a ground for declaring a child adoptable. In my opinion, paragraph (8) should not be used unless the Attorney-General has proved the existence of a ground for adoption under one of the previous paragraphs, and the court is required to decide — in the second stage — whether to exercise its discretion in favour of the applicant; for if we do not say this, the result is that the Attorney-General may remove a child from the custody of his natural parents for the purpose of adoption, without any factual basis, unless the parents prove — and the burden of proof is on them — that the refusal to hand over the child for adoption does not derive from an immoral motive and is not for an unlawful purpose. Therefore, since we have held that the appellant’s case does not fall into any of the previous paragraphs, the aforesaid section 13(8) cannot apply.

Moreover there is no basis for the claim that the appellant’s refusal has an unlawful purpose or derives from an immoral motive, and in my opinion we must detach (for the purpose of interpreting the said paragraph) the events that led to the birth of the child from the said purpose or motive; there is nothing unlawful in the appellant receiving custody of the child (if the Court grants his application), and the motive for the appellant’s refusal to consent to adoption is his desire to raise him in his own family. This reason, in itself, does not contain any moral defect.

It follows that the appellant’s case does not fall into the scope of any of the sub-paragraphs of section 13.

7.             In the case before us, the appellant exploited a young girl, seduced her, made her pregnant, and now he wishes to receive her child in order to complete his plan. Will the law assist him in doing so? Are we compelled to surrender to the language of the law, deny the application of the second respondent and deliver the child into the custody of the appellant? It is indeed true that the list of grounds for declaring a child adoptable is a closed list, but are there no legitimate methods of interpretation or other techniques that allow us to prevent the said result, which is manifestly undesirable and unjust? It seems to me that we may reach the desired result either by means of interpretation or by means of filling a concealed lacuna. I will begin with four examples from the legal literature and case-law, I will then proceed to draw general conclusions and in the third stage I will apply my conclusions to the facts of the case before us.

(a) In EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18], this court held that even in the absence of a specific provision of statute, the Central Elections Committee was not compelled to approve a list of candidates that was unlawful, since its founders denied the integrity of the State of Israel and its very existence. In denying the appeal, Justice Sussman said (at p. 390):

‘Just as a person is not bound to consent to being killed, so too a State is not bound to consent to its own extermination and being wiped off the map. Judges may not sit idly and despair of the lack of positive law when a litigant is asking them to help him in order to bring about the destruction of the State.’

It was held that the case involved ‘super-constitutional’ principles that derive from the right of the organized society in the State to defend itself, whether this is called natural law or whether it is called by any other name. There was no positive provision of law that authorized the court to do what it did, but notwithstanding this the appeal was denied.

(b) HCJ 4562/92 Zandberg v. Broadcasting Authority [19]) considered section 1 of the Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, which provided, inter alia, that:

‘In order to remove doubt, it is hereby determined that the fees for maintaining a radio or television receiver, which were determined under the Broadcasting Authority Law, 5725-1965, for the years 1985 to 1992, are valid under every law and for all intents and purposes from the day that they were determined; …’

This was a validation law, the wording of which was, prima facie, clear. But notwithstanding what was stated in the wording of the law, the court held, by means of purposive construction, that the fees charged in the years 1985-1992 would be given retroactive force, together with the linkage differentials thereon, but there would be no retroactive validity to any fine for arrears on those amounts.

(c) Legal literature and case-law have raised the question whether, in the absence of a specific provision of statute in this regard, an heir who murdered someone that bequeathed him his property in a will is entitled to inherit him. This was what happened in the well-known case of Riggs v. Palmer [35], and the court ruled in the negative.

(d) Section 8(a) of the Registrars Ordinance, 1936 was considered in Mot 337/68 Malloyds v. Yaakov Yeffet & Co. Ltd [20]. This provision states that a judgment given by a registrar ‘under section 6, paragraphs (b) (b1)’ is, for the purposes of an appeal, of the same status as a judgment given by the court, and the Supreme Court held that the limitation should be ignored and that every judgment of a registrar could be appealed before the Supreme Court.

In all of these cases, the court ruled contrary to the literal text of the law or by adding provisions to the law that it did not contain. In the first case (Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18]), it was held that the express wording of the statute was accompanied, by implication, by  ‘super-constitutional’ principles with regard to the right of society to protect itself against those who act to destroy it; in the second case (Zandberg v. Broadcasting Authority [19]), the Supreme Court reached the conclusion that the application of the validation law was retroactive, except with regard to fines for arrears. The reason for this decision was, inter alia, that the statute is accompanied by constitutional principles concerning the non-retroactive nature of a penal provision and of harm to property rights, and that the interpretation that leads to integration and creates harmony between the laws should be preferred to the interpretation that creates a conflict between them. In the third case (Riggs v. Palmer [35]), the Court of Appeals of the State of New York held that the general wording of the statute did not preclude the application of a universal principle that prevents a person from benefiting from the profits of his crime. As Justice Earl said (at p. 190):

‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are directed by public policy, have their foundations in universal law administered in all civilized countries, and have nowhere been superseded by statutes.’

This case was considered extensively in H. Hart and A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, Cambridge (1958), at pp. 93 et seq., as an example of the inclusion of restrictive clauses in the general wording of a statute. It was also considered in R. Dworkin, Taking Rights Seriously, London (1977) at p. 23) and in A. Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation, Nevo (1992), at p. 482, as an example of an application of the doctrine of the hidden lacuna. In this regard, Justice B.N. Cardozo said the following in his book, The Nature of Judicial Process, New Haven (1921), at pp. 40-42:

‘Conflicting principles were there in competition for the mastery. One of them prevailed, and vanquished all the others. There was the principle of the binding force of a will disposing of the estate of a testator in conformity with the law. That principle, pushed to the limit of its logic, seemed to uphold the title of the murderer. There was the principle that civil courts may not add to the pains and penalties of crimes. That, pushed to the limits of its logic, seemed again to uphold his title. But over against these was another principle, of greater generality, its roots deeply fastened in the universal sentiments of justice, the principle that no man should profit from his own iniquity or take advantage of his own wrong. The logic of this principle prevailed over the logic of the others. I say its logic prevailed. The thing that really interests us, however, is why and how the choice was made between one logic and another. In this instance, the reason is not obscure. One path was followed, another closed, because of the conviction in the judicial mind that the one selected led to justice. Analogies and precedents and the principles behind them were brought together as rivals for precedence; in the end, the principle that was thought to be most fundamental, to represent the larger and deeper social interests, put its competitors to flight.’

In the fourth case (the appeal on a decision of the registrar), the court ignored the express wording of the legislation, which it held was ‘only written as an oversight’, in order to adapt section 8 of the Registrars Ordinance to the overall structure of the division of powers between the court and the registrar.

8.             In Zandberg v. Broadcasting Authority [19], the court reached its conclusions both by means of interpretation and on the basis of the doctrine of the concealed lacuna, which it left undecided. According to this doctrine, as explained by President Barak (at p. 814):

‘The lacuna in this case is of a special character. It finds expression in the absence of an exception. In Continental legal literature this lacuna is called a “concealed (or latent) lacuna”. The lacuna is “concealed”, since from the general language of the statute itself it may be inferred that the language applies to the situation that requires a decision. Only by studying the purpose of the statute can one conclude that the general language should not be applied to the circumstances of the special case.’

The source for using the technique of filling lacunae is in the Foundations of Justice Law, 5740-1980.

As Professor Barak wrote in Interpretation in Law, vol. 1, at p. 477, there is in principle a possibility of filling a lacuna in all fields of law, including family law, since it is a general doctrine. However, I do not need to say anything further about this, since it is possible to reach the proper result not only by virtue of the said doctrine but also by virtue of the rules of broad interpretation.

9.             Statutes are not enacted in a vacuum. They form part of an integral system that includes fundamental principles. They are presumed to have been enacted within the framework of these principles, which they are intended to realize (cf. Barak, Interpretation in Law, vol. 2, Statutory Interpretation, Nevo (1993), at pp. 479 et seq.). It is presumed that they operate in order to achieve justice and equality, and their application will prevent outcomes that are inconsistent with public policy. One of the rules of public policy is that the wrongdoer should not benefit from his misdeed. Indeed, the force of the said principle is likely to change from case to case and from time to time. We are not concerned with the individual assessment of a specific judge, but with special circumstances in which there exists a common social factor that assumes that a specific outcome is inconceivable because it conflicts with fundamental principles, and that the legislator never thought of it, and had he been asked, he certainly would say that it is not subject to the rule, or that it is subject to another rule.

If we apply the aforesaid to the area under consideration in this appeal, it emerges that we must read into section 13 of the Law an additional rule, which provides that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy with respect to acts that led to the birth of the child. This rule will apply irrespective of the grounds mentioned in section 13 of the Law, and it constitutes an application of the universal principle that a wrongdoer should not benefit from his misdeeds. The District Court and my esteemed colleague, Justice Dorner, found a way to reach this result within the framework of paragraphs (7) and (8) of section 13. I did not find a way to do this, and I was therefore compelled to complete the text by means of an additional rule. In doing so, I did not depart from the principle that the judge must be faithful to the statute, since I applied another principle that the legislator is presumed to have intended to follow, without affecting the closed list of grounds for adoption listed in the first seven paragraphs of section 13 of the Law. I could have reached the same result by invoking the doctrine of the concealed lacuna.

10. It seems to me that the case before us falls within the scope of the rule mentioned in the last paragraph, where the outcome of entrusting the child to the appellant is contrary to basic principles of public policy; the legislator did not foresee this, and had he been asked, he certainly would have said that it is subject to a rule that prevents this outcome.

In order to avoid misunderstandings, I wish to add the following two remarks:

a.             My opinion does not relate at all to the question of the right of unmarried fathers to prevent a girl or a woman, who became pregnant with their child, from placing their child for adoption (in this respect, see the recent survey written by Prof. Mary Shenley: ‘Unwed Fathers’ Rights, Adoption and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy’, 95 Col. L. Rev. (1995) 60), nor to every case where the birth of a child occurs as a result of an offence. From the material before us, it appears that there are legal systems that distinguish different levels of offences for this purpose. Thus, for example, the laws of the State of New York provide that there is a justification for denying the right of a father who committed first-degree rape to oppose his child being placed for adoption, but this rule does not apply to second or third degree rape. I do not intend to adopt any position with regard to any cases other than the present one, in which the birth of a minor was the result of an offence. Nor do I intend to consider the ruling of the Family Courts in the State of New York, which holds that the ruling in Riggs v. Palmer [35] applies only to property matters. Not only are there extensive case-law to the contrary in the State of New York itself (see, for example, Hines v. Sullivan (1980) [38] (and conflicting judgments in this matter cannot serve as a precedent, even in their country of origin), but there is no reason or logic in limiting the rule in Riggs v. Palmer [35], as a rule of interpretation, merely to property law.

b.             As in any case of declaring a child adoptable, even when it has been proved that the circumstances of the child’s birth justify denying the natural father of his paternal rights, the matter is subject to the court’s discretion. In this I agree with the outlook of my esteemed colleague, Justice Dorner, that if, despite the existence of circumstances that in principle justify denying the natural father’s right to oppose adoption, it is possible to show that in the specific case giving the child over to the father is clearly in his best interests, the court may decide that the best interests of the child override conflicting reasons of public policy.

For these reasons, I also agreed with the outcome that the appeal should be denied.

 

 

 

Justice M. Cheshin

It is the law of nature that a child grows up in his home of his father and mother: they are the ones who will love him, give him food and drink, educate him and support him until he grows up and becomes a man. This is the right of a father and mother, and this is the right of the child. I have written this elsewhere, in greater detail: CA 6106/92 A v. Attorney-General [21], at p. 235; CFH 7015/94 Attorney-General v. A [2]. This right of a father and the mother came into being before there was a law and constitution. It is the law of nature, the law inscribed in our hearts. Even if these things are stated in a law or a constitution, they will only be an echo and a shadow of that natural right. This right came into existence at creation, and many branches of law are founded on it. The law of the State therefore follows in the footsteps of the law of nature. This is the source for the provision of section 8(a) of the Adoption of Children Law (hereafter — the Law), which says:

‘A court shall not make an adoption order unless it is satisfied that the parents of the adoptee have agreed that the child may be adopted or unless it declares him adoptable under section 13.’

2.             There are only two ways by which a child may be separated from his mother and father by means of adoption: one way is by the consent of the mother and the father that he may be adopted, and the other way is a separation by force of law, when there exists one of the grounds listed in section 13 of the Law for declaring a child adoptable. In our case, the mother consents to adoption; what is more, she requests and demands that her son is taken for adoption. The father, however, wishes to exercise his natural right and duty as a father to raise his child as a father raises a child.

3.             I must admit that after the facts were set out before me in full, I knew that I would not be a party to delivering the child into the custody of his natural father, the appellant. In my opinion, the appellant is as one who raped a minor — even if his act was not an act of ‘rape’ under the provisions of the Penal Law, 5737-1977 —and after the rape he misled the girl with lies and deceit until the embryo became viable and could no longer be aborted. He then deserted the girl while she was still pregnant, and when she gave birth to a living child, he came forward and staked a claim as if he had come into his own. The girl, the mother, requests and pleads that the child is adopted by strangers. She wants to escape from this trauma that she has undergone, to erase these terrible months from her memory. But the appellant insists that the child should be given into his custody, and he demands that he is allowed to raise him as a father raises his son. The appellant committed an act more despicable that almost any other. It is an act like that of Amnon and Tamar:

‘And he took hold of her and said to her: Come lie with me, my sister. And she said to him: No, my brother, do not force me, for such thing should not be done in Israel; do not do this shameful act. For where shall I take my shame? And you shall be like one of the most contemptible persons in Israel…’ (II Samuel 13, 11-13 [42]).

Amnon paid for his crime with his life (II Samuel 13, 28-33 [42]), whereas the appellant, who raped the body of the girl, stole her innocence and youth, trampled and violated her dignity, stands before a court in Israel, claiming rights, as someone who asks to be rewarded for committing a crime.

When the true facts became clear to me, my initial reaction was a strong instinctive reaction, that the appellant is not entitled to any relief. This feeling has not changed. It seems to me that the trial judge felt as I do, and so do my colleagues in this case. The differences between us only concern the reason for denying the application of the appellant. We differ on questions of legal theory, in the purest sense. I therefore wish to make several remarks.

Does the ground of parental incapacity apply in this case?

4.             As stated, adoption may not take place, nor may a child be taken from his father and mother for adoption, unless both of them consent to the adoption of their child by strangers, or if one of the grounds listed in section 13 of the Law exists. The father — the appellant before us — insists upon exercising his right to raise his son, and he vehemently opposes the adoption of the child by strangers. The question before us is therefore whether one of the grounds in section 13 applies. The main ground for our purposes is the one set out in section 13(7) of the Law, according to which the court may declare a child adoptable if it is satisfied that:

‘The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation.’

This ground is concerned with ‘parental incapacity’, and the question is whether the appellant is ‘capable’ of taking proper care of the minor or whether he is not ‘capable’ of doing so ‘because of his behaviour or situation’. With regard to this ground, I said elsewhere that prima facie it is talking about the mother and father (in our case — about the father only), but a close examination will show us, unsurprisingly, that it is the child who stands in centre-stage and that his status is what will ultimately determine the question whether the mother and father are ‘capable’ of ‘taking care’ of him ‘properly’ (see my opinion in CFH 7015/94 Attorney-General v. A [2], at pp. 108-109; see also the opinion of my colleague, Justice Dorner, at pp. 65-66). Where it is proved that the mother and father are incapable of taking proper care of their child, then a ground for adoption based on ‘parental incapacity’ will apply.

What is the connection between the ground of incapacity and ‘the best interests of the child’? Everyone agrees that ‘the best interests of the child’ — in themselves — do not constitute a ground for adoption. However, where the ‘best interests of the child’ are very seriously harmed, i.e., where the parent’s behaviour or situation harms the child to the extent that the parent can be assumed to be ‘incapable of taking care of his child properly’ — and where there is no chance that his behaviour or situation will change in the foreseeable future — then the ground is established.

The trial court judge was of the opinion that this ground of incapacity applied to the appellant (and his son), and some of my colleagues also think this. Notwithstanding their opinion, the Vice-President, my colleague Justice S. Levin, is of the opinion that the ground of incapability does not apply to the appellant. I agree with the Vice-President.

5.             What led my colleagues to think that the ground of parental incapacity has been proven? The ground of parental incapacity for adoption is invariably proved by the opinion of experts. Of course, an opinion given by an expert does not bind the court to rule according to the expert’s opinion. The responsibility for declaring a child adoptable rests with the court, which bears the responsibility even when ruling in accordance with the expert’s opinion. Moreover, the question of parental incapacity is a combined question of law and fact, and while the expert may determine a question of fact, this is not so with regard to the question of law that the court must decide. However, we know that the opinion of an expert usually has very great weight — even if it is not decisive — and it constitutes the essence of the judgment. I would add to all this that I have yet to hear of a case in which a child was declared adoptable on the ground of parental ‘incapacity’ notwithstanding the opinion of an expert submitted by the Attorney-General, according to which the parents have parental capacity. Nor will there ever be such a case, for in the absence of an expert opinion that the parents do not have parental capacity, no application will be filed to declare the child adoptable.

In our case, an opinion was given by the well-known expert Rami Bar-Giora, who is an adult and child psychoanalyst, an expert with considerable reputation, a person of many achievements and great experience. According to the expert, the child should not be given to his biological father, the appellant, and in his written opinion he gives reasons for this opinion. I respect the opinion of Mr Bar-Giora, but I must be mindful that the responsibility for entrusting — or not entrusting — the child to strangers is mine. I cannot therefore avoid responsibility merely by relying on the opinion. I must examine the opinion itself, and only a careful examination of this kind will guide me onto the right path. My colleague, Justice Dorner, and my colleague, Vice-President S. Levin, quote parts of Mr Bar-Giora’s opinion, and each of them reaches his own conclusions. I will go further than my colleagues, and I will take the unusual and circuitous step of quoting the opinion of Mr Bar-Giora in full. I will let the expert speak in his own words and style, and we will listen to these words very carefully. This is what Mr Bar-Giora says in his opinion:

‘1.            For the purpose of preparing this opinion, I examined R.Y. [the father] and his wife A, I met with the biological mother, her father and her older sister in their home… and I studied the documents that were submitted to me by the parties. All of these are sufficient, in my professional opinion, for preparing this opinion.

2.             The issue under discussion here raises many questions:

a.             What are the best interests of the child — that he should be adopted without any relationship with his blood relations, or that he should have a relationship with at least one of his parents?

b.             Is the child guaranteed wholehearted motherly love by the wife of his biological father, even though he is the result of his infidelity?

c.             Will revealing the circumstances of his birth be possible for the child at any stage when he grows up, and what will be the consequences of this?

Questions of a moral nature also arise:

d.             Should the father be allowed to commit rape (according to the mother) and also benefit from it?

e.             Does a mother who places her child for adoption have the right to stipulate conditions for his adoption?

3.             First, I would like to describe the personality of R.Y. and his wife A. Both of them are obsessed with a strong desire for a child. On the personality test that I gave them (the Rorschach test), there was clearly an abnormal occurrence of elements such as wombs, reproductive organs and fertility. In R.Y. I noticed an emotional state in which the desire for a child of his own flesh was so great that it could easily override other considerations, in the sense of the end justifying the means, or necessity knowing no law. A, his wife, seems to me doomed to depression and dejection because of her infertility, and she therefore has difficulty in saying what she really feels and has the attitude that she will do what her husband wants because she is dependent on him. When I asked her whether her maternal love would not be soured by the thought that the desired child was the result of his infidelity to her, she answered: “One forgets”. The essential point, for our purposes, is that both of them desperately need, each for his own reasons, a child to raise so that they can feel “normal”, whereas without a child they literally feel disabled and deficient.

4.             Without expressing an opinion about the indictment for rape that is pending against R, I find from my examination of him that receiving the proof that he is fertile and can produce a child and the yearning for a child of his own could have been very active factors in the relationship that he had with the biological mother, and they were certainly active in his request to take the child born from this relationship into his custody. I have no doubt that had he made a surrogacy agreement with a fertile woman, the situation would have been very different for his wife A, and in such a situation the likelihood that her future maternal capabilities would become more difficult and burdensome would have been far smaller than it is likely to be in the circumstances that will prevail if the child is given to her to raise.

The desire of R for the child is so great that he is prepared to promise that he will move away from the place where he grew up and do anything provided that he is given the child, whereas his wife A submits and gives in to his desire without properly considering the potential damage that such a move would cause her and the distance it would place between her and her family and the wishes of her family.

Although we have here a rare picture where nothing stands in the way of the child, underneath the surface there lies a strong possibility of complications, difficulties and pathology for the child and how he is to be brought up, if he is indeed brought up by R and A.

5.             R’s behaviour reminds me very much of what happens to single mothers whose desire for a child can lead them to do terrible and extreme things that are inconsistent with everyday behaviour and logic; but this emotional state of an obsession for one thing that overrides everything that stands in its way, an emotional state that leads to having a child, is not easily reconciled with the problems of raising the young child over the many years that come thereafter.

In any event, even though many single mothers succeed in the task of parenting, it is clear that from the viewpoint of the best interests of the child this kind of parenting is full of dangers in comparison with the normal parenting situation.

In other words, the intensive campaign of R and A to “get a baby” does not necessarily imply, in my opinion, a guarantee of the parental skills required for the baby to be raised by R — he will grow up deformed by two major scars: that he is the child of his father only, and that he is the product of a relationship marred by accusations and bitterness. The mental health of this child, should he be raised by his biological father, will not allow him to live under a veil of secrecy, while the scars that he bears are known to everyone around him but are hidden from him. The possibility that his father will be arrested “because of him or because of the desire to bring him into the world” may be another immediate and burdensome scar that should not be imposed on [his wife] who will be obliged to raise him alone for a decisive and critical period of time for the bonding of mother and child.

6.             With regard to the mental health considerations, I therefore regard all these potential dangers as a cause of probable disaster which should in no way be encouraged, which is not reduced by the eagerness of the desire for the child and which does not exist in the circumstances of adoption, even though adoption involves difficulties of another kind but on a much smaller scale; in any event, the effect of these is not felt in the period of early childhood which is a fateful and critical period for human development.

7.             Now I will try to answer the questions that I raised in paragraph 2 of my opinion.

Question a: When all other things are equal, it is probable that there is a benefit to biological parenting; but the biological aspect in itself is not as important as psychological benefits or the absence of psychological risks (see the major and accepted contribution on this subject by J. Goldstein, A. Freud and A.J. Solnit, Beyond the Best Interests of the Child, 1979, at pp. 17-20, 98).

Questions b and c: Although I do not doubt A’s hunger for motherhood, I foresee many problems with regard to her ability to tell the child, if she is indeed allowed to raise him, the truth about his mother and his father and the circumstances of his birth; ¬I foresee many difficulties for the child if as stated she is allowed to raise him and he remains her only child, or he is joined by adopted brothers or her own children, as she hopes. In any event, major differences can be anticipated between the relationship of his father and that of his mother to him and to his future brothers.

In any event, I foresee serious difficulties for the relationship with A if the father is sent to prison. In any event, many difficulties will stand in the way of A’s love, and it will be far more difficult for her if she is forced to leave the supportive environment of her family, if the family moves away. Should the baby be placed for adoption, he will be able to confront the circumstances of his birth when he is an adult and not dependent on those who gave birth to him. Dealing with these circumstances when he is a child seems to me too complex and too hard a challenge for R and A who want to raise him.

Question d: In order not to be persecuted by this question, if the family of R and A raises the child, it must go into “exile” and it will always be in danger of discovery of the secret. In any event, the sensational story will pursue the child and whether it reaches the child before or after his parents’ explanations, it will, because of the outlook of society, create a disturbing and problematic source of pressure on all the persons concerned.

Question e: Should the child be given to the biological father to be raised by him, this will inflict a serious and painful blow on the family of the biological mother which, inter alia, includes an adopted daughter whose best interests demand that “placing for adoption” is regarded as an ideal solution by all those involved. In the situation under discussion, the inevitable contact between the members of all the families and the lack of confidentiality and anonymity that normally characterize adoption, may lead — should the child be given to his biological father to be raised by him — to unpredictable situations that cause problems for the child under discussion.

8.             Therefore I recommend that the baby not be given to his biological father, despite his strong desire to raise him, because of the many serious potential dangers arising from this; these should certainly not be imposed on a newborn child whose future — which will not be easy — is still before him, and we should search for the least dangerous and most promising option for his healthy development: there is no alternative other than closed and anonymous adoption.

At the same time, I wish A success in her attempts to become a mother and that her hands that hunger for a child will hold her own child, to the joy and pride of her husband R.’

6.             Let us read and reread the opinion of Mr Bar-Giora. Let us read and ask ourselves: are we really persuaded that the ground of parental incapacity exists in the case of the appellant? Does the opinion really show that the appellant ‘is incapable of taking proper care of his child because of his behaviour or situation’ such that we should take away a child from his father forever? The expert recommends that we should not give the child to the appellant. But does he present a reasoned finding that the appellant is ‘incapable’ of taking care of the child? Indeed, because of that heinous crime that was committed, the expert foresees ‘many difficulties’, ‘serious difficulties’, ‘a strong possibility of complications’, ‘difficulties and pathology for the child’, etc.; but are these difficulties sufficient for us to say that a child should taken away from his biological father and entrusted to another? Do difficulties — even if they are ‘serious difficulties’ — establish a ground for adoption? In my opinion, the answer to the question is no.

Indeed, Mr Bar-Giora makes extensive use of terms and concepts that are intended to give expression to not a few obstacles and ‘complications’ that will stand in the way of bringing up the child, but in each case he is careful — so it seems to me — not to attribute to the father, the appellant, ‘incapacity’ with regard to raising his son, in the simple meaning of the term and as this concept is understood by the law. Mr Bar-Giora is an expert with a direct approach and rich experience. He knows the law of adoption thoroughly, but all that we hear from him is about ‘difficulties’ or ‘many difficulties’ (and similar expressions) that will be involved in raising the child. We have heard nothing about ‘incapacity’ or about difficulties that clearly amount to ‘incapacity’. Indeed, even had the expert spoken expressly of ‘incapacity’ (and he hints of this in his oral testimony), the mere use of the word would not be decisive. But the absence of words to this effect calls for our attention, and the silence is full of meaning. We can only conclude that while Mr Bar-Giora made the recommendation that he made, this was not for reasons of the father’s ‘incapacity’ to raise his son, i.e., incapacity in the technical sense as understood by the law.

For my part, I will add, that I too — like Mr Bar-Giora — have not been persuaded that the ground of ‘incapacity’ applies to the father, the appellant, in the sense in which that term has been understood and interpreted by the law until now. What did I do? I assembled all the facts of the case and combined them into one unit. I put the framework of the ground of parental ‘incapacity’ next to that unit. As a judge, I tried to fit the facts into the framework of the ground of incapacity. I tried once and failed; I tried again and failed again. After that I tried to work backwards, and to fit the framework around the facts. Once again I failed. So I concluded that the two cases are distinct and unlike one another. When I tried to fit our case into the scope of section 13(7) of the Law, I compared myself to the sages of Pumpeditha, whose intelligence was so great that they could ‘put an elephant through the eye of a needle’ (Babylonian Talmud, Tractate Bava Metzia, 38b [43]). When I discovered that an elephant will refuse to go through the eye of the needle, I said: if even the smallest of elephants cannot pass through the eye of a needle — whether because of the size of the elephant or the smallness of the eye of the needle — so too our case cannot fall within the scope of section 13(7) of the Law.

7.             In view of all this, I knew that it had not been proved to the court — by the experts — that the ground of incapacity to take proper care of the child applied to the appellant. We can at least say that that there is a doubt — and it is a big doubt — as to whether the ground of incapacity has been established. In these circumstances, in the absence of an unambiguous opinion as to the incapacity of the appellant to raise his child properly, the finding that the father falls within the scope of the ground for adoption stated in section 13(7) of the Law seems to me problematic. Indeed, before we decide that a child should be taken away from his biological father and place him for adoption only because of his father’s incapacity to take proper care of his son, we expect — as a rule — that an expert whose opinion is respected by the court will express an opinion to this effect. The opinion of psychoanalyst Rami Bar-Giora is respected by us as that of a top expert, but we did not clearly and unequivocally hear from him that the appellant is incapable of raising his son. From all this we know that the ground stated in section 13(7) of the Law has not been proved.

The ground of adoption under section 13(8) of the Adoption Law

8.             With regard to the ground set out in section 13(8) of the Law, which is the second ground discussed by the trial court, in the absence of a parent’s consent, the court has jurisdiction to declare a child adoptable in circumstances where:           

‘The refusal to give the consent derives from an immoral motive or is for an unlawful purpose.’

I have tried, but failed to see how our case can fit into the scope of this ground. Indeed, no matter what we do to the statute and however much we stretch the language in each direction, we will not succeed in fitting the case before us into the framework determined by the legislator in section 13(8) of the Law. We all agree that the appellant’s deed with respect to the girl, the mother, was scandalous. Moreover, the statement that his behaviour towards the girl resulted from ‘an immoral motive or for an unlawful purpose’, in the words of section 13(8), is a mere understatement that does not tell us even half the story. But it is important that we are precise with regard to the wording of the Law, which does not refer to the act that led to the birth of the child, but to the refusal of the parent to give his consent to a declaration that his son is adoptable. The relevant question is therefore whether the appellant’s refusal to give his consent to the adoption of his son derives from an illicit motive or is for an unlawful purpose. I have difficulty in answering this question in the affirmative. The behaviour of the appellant towards the girl was worse than bad, literally an act of infamy, but we cannot say that his refusal to give his consent to a declaration that his son is adoptable derives from an immoral or unlawful motive.

9.             In this context, my colleague, the Vice-President, says that the ground set out in section 13(8) has no independent existence, and that it is a mere adjunct of one of the other grounds set out in section 13 of the Law. I have difficulty in agreeing with the opinion of my colleague, but since we heard no argument on this subject, I am merely giving my initial thoughts. First, the provision of section 13(8) of the Law is prima facie stipulated as an independent ground, with its own parameters, and I have not found in the Law even a hint that it is merely derivative and an adjunct of one of the other grounds. Second, I fail to understand why this ground should be regarded merely as a derivative ground. A case that calls for the application of this ground is one where a father asks for a substantial sum to be given to him in return for his consent that his son is declared adoptable (cf. Kommemi v. Attorney-General [17]). In this case it is possible that the ground of incapacity will also be proved, automatically (since a father who is prepared to ‘sell’ his son may be regarded, because of his very act, to lack the capacity to raise him), but each of the two grounds — the ground of incapacity and the ground of the unlawful or immoral refusal — has its own existence, and I do not see why the one should be conditional on the other.

Indeed, it is possible that in these and other circumstances only the beginning of another ground will be proved. For example, one of the grounds listed in section 13 of the Law is the one in section 13(4), according to which a parent ‘… refrains, without reasonable cause, from maintaining personal contact with him [the child] for six consecutive months’. Let us assume that the father fulfils the requirements of section 13(4), but his inaction has lasted only three months, and after those three months the father demands payment in return for his consent to the adoption of his son. The ground in section 13(4) has therefore not matured, whereas the ground in section 13(8) — according to our assumption — does apply. See also the facts that were proved in Kommemi v. Attorney-General [17], which we mentioned above. It is true that one may almost assume that when the ground in section 13(8) exists, there will also exist one of the other grounds listed in section 13 of the Law. But it does not seem right to me that the ground in section 13(8) is a ground that depends on the existence of one of the other grounds. Quite the opposite; I think that the ground in section 13(8) has its own independent existence.

Whichever is correct, our opinion is that in our case the appellant does not fall within the scope of the ground set out in section 13(8) of the Law.

Should the law run its course?

10. No-one argued that one of the other grounds set out in section 13 of the Law applies to the appellant. From this we can draw two conclusions: first, the appellant did not give his consent to his son being declared adoptable in accordance with section 8 of the Law; second, in consequence of our remarks hitherto, none of the grounds set out in section 13 apply to the appellant. Prima facie, the application of the Attorney-General to have the child declared adoptable is therefore defeated.

It is the law of nature — so we said at the beginning of our remarks — that a child should be in the custody of his mother and father, or, to expand slightly, in the custody of his mother or his father. This is the basis on which the Law is built. Now that we have seen that the Law does not contain any permission to take the child from his father, we return to our starting point, and the child should therefore be in the custody of his father, the appellant. If this is so in principle, it is definitely the case in view of the well-established case-law that the grounds for adoption set out in section 13 of the law are the only grounds, and there are no others: CA 549/75 A v. Attorney-General [1], at p. 468; CA 232/85 A v. Attorney-General [8], at p. 13; CA 211/89 A v. Attorney-General [9], at p. 779. This is the law, and rightly so: a child should not be taken from the custody of his parents — or from the custody of one of his parents — unless the law permits this, and only within the scope of that permission. It could also be said that the law of adoption is similar to criminal law, for both concern the lives of human beings. Since in criminal law no punishment can be given without first declaring the law — or in the language of the law: ‘There is no offence nor is there any penalty therefor unless they are prescribed in the law or thereunder’ (section 1 of the Penal Law, after the Penal Law (Amendment no. 39) (Introductory Part and General Part), 5754-1994) — so too in the law of adoption, a child may not be taken permanently from his father or mother except in accordance with the express provision of statute. Since we have concluded that the statute does not permit this child to be taken from his father, the inescapable conclusion is that we are forbidden to take the child from his father.

11. The formalist — or let us be more extreme and say: the heartless formalist — would stop here and say: this is the law, this is what the legislator has laid down, and let the law run its course. Fiat iustitia et pereat mundus: let justice (?) be done though the world perishes. The companion of that formalist — also a formalist, but one with some heart in him — would sigh and say, dura lex, sed lex: (what can we do?); the law is hard, but it is the law. He might even go further and say that the legislator should take note of the matter and consider whether the law should be changed.

I do not know these formalists, and let me not be counted among them. Confronted with this conclusion, a conclusion that we cannot accept, since — in the words of my colleague, the Vice-President — it is ‘manifestly undesirable and unjust’, a harsh and difficult conclusion, let us arise and ask: are we judges indeed bound to adopt this conclusion and declare it to be law? When we were elevated to the bench, each of us took an oath to ‘… be faithful to the State of Israel and its laws, to do justice, neither to pervert justice nor to show partiality’ (section 6 of the Basic Law: Administration of Justice; in the previous version, under section 11 of the Judges Law, 5713-1953 the judicial oath was couched in the same language, except that the judge took an oath to do justice ‘to the people’; for our purposes, there is no difference between the earlier version and the later version). Oaths are meant to be kept, and our oath was to be faithful to the law and to do justice. Is it really the law of the State that this appellant before us should have custody of his child? Would justice be done if this were our decision? In my opinion, we would not be faithful to the law of the State not would we be doing justice, but injustice, if this were our decision. What then should be our course, the right course?

12. Were we to grant the appellant his desire, so we have said in our hearts, we would suffer a painful feeling that we have done something wrong. Even if our intentions — the intention of the formalist — were praiseworthy, our actions would not be, and our actions would lead us astray. How is it then that the flame so burns in our hearts and is imprisoned in our bones — to punish the villain according to his villainy, and not to reward a wrongdoer with the fruits of his wrongdoing — whereas the statute binds our hands in bonds and chains and compels us, seemingly, to leave the child in the custody of his biological father? Is it really the intention of statute — or to be more precise, the intention of the law — that we should decide in despite of our conscience and our expert instincts? I think not, and I will give my reasons below.

13. First we should say that we must distinguish at the outset between the substantive law — with its principles and rules — and the legal technique that we will adopt, or if you prefer, the well from which we will draw the substantive provisions up to the surface of the law. My colleague, the Vice-President, discussed this (in paragraph 7 of his opinion), and I agree with him (subject to what I shall say below). Indeed, it is possible that drawing substantive provisions from one well or another may affect the quality and the sphere of applicability of the substantive provisions — even if only in marginal cases — but the distinction, in itself, is an important one that we should recognize. It need not be said that our main concern is with the substantive law, and the technique for recognizing the substantive law is merely subordinate to the main goal. Let us therefore begin with the substantive law.

The law of nature and human instinct: the right of a parent to his child and the loss of that right; have you committed murder and also taken the inheritance?

14. We began our opinion by saying that it is the law of nature that underlies our deliberations, and that it is the law of nature that nourishes the right of a mother and father to custody of their child. We said of this that every mother — in as much as she is a mother — is entitled to have custody of her small child, to love him, caress him, give him food and drink, hold him in her arms and walk with him hand in hand (CA 6106/92 A v. Attorney-General [21], at pp. 235-236). This is the right of a mother and it is the right of a father. Is this right that derives from nature an absolute right? Did God create it as a right that cannot be gainsaid? Is it a right without exceptions — exceptions that also derive from nature? The answer to this question is that there are indeed exceptions to the right, exceptions that are built of the same material that created the right itself. The right itself, as my colleague the Vice-President remarked, is based on ‘blood ties’ (in the words of Vice-President Justice S. Z. Cheshin in Hershkovitz v. Greenberger [13]), and it is ‘… that primeval yearning of a mother for her child, a bonding of hearts that has neither beginning nor end…’ which cries out unceasingly (CA 6106/92 A v. Attorney-General [21], at p. 235). But there are cases where the system breaks down. ‘A mother may lose her right, and her behaviour may show us that the blood ties are severed’ (ibid. [21], at p. 236). The ‘blood ties’ establish the right and the ‘blood ties’ that are severed can take the right away.

Just as nature establishes the right of a mother and father to their child, so abandoning and neglecting the child can invalidate the right. We discussed this subject at length elsewhere and there is no need to add to it. See CFH 7015/94 Attorney-General v. A [2], at pp. 109 et seq.. Indeed, the grounds of abandoning and neglecting a child are expressly included in section 13 of the Law, in sub-paragraphs (2), (4), (5), (6) and (7). But the Law did not create the substance of these grounds. The source of these grounds lies in the law of nature, just like the right of a parent to have custody of his child. Both of these — the right and loss of the right — are the result of nature, and they are like the two sides of a coin. All that the Law does is to define the boundaries of these grounds. It does this, both by establishing specific and clear boundaries — for example, non-compliance with obligations towards the child during six consecutive months, and not a day less — or by establishing general grounds such as the ground of incapacity.

15. The legal system recognizes the right of parents to their children: the right itself and the exceptions thereto. In recognizing the right and the exceptions thereto, the legal system chooses to acknowledge a phenomenon of nature that is deeply rooted in human and animal nature. With regard to man: ‘As a father has mercy on his children, the Lord has mercy on those who fear him’ (Psalms 103, 13 [44]); or ‘Can a woman forget her baby and not have mercy on her offspring? Even these may forget, but I will not forget you’ (Isaiah 49, 15 [45]) (note the rule accompanied by the exception). The same is true of animals and birds: ‘Like an eagle that rouses her nest, hovers over its young, spreads it wings, takes them, bears them on its plumage’, (Deuteronomy 32, 11 [46]); or ‘Even jackals extend the breast, give suck to their cubs…’ (Lamentations 4, 3 [47]). This is the desire for life and the survival instinct of all living things, and the law is, as it were, compelled to embrace it (with various qualifications). This is merely an example of the recognition of human nature as a foundation of the law.

An additional example — which is moulded from the same material — is found in the doctrine of self-defence. The desire for life and survival in man (and the animal) induces a person to defend himself against someone who attacks him — even by attacking the attacker — and the recognition of the doctrine of self-defence as a defence in the criminal law is merely the law’s recognition of a phenomenon of nature. Criminal law has since earliest times recognized the doctrine of self-defence as a defence against a criminal indictment, and thereby it has acknowledged the instinct inherent in all of us to protect ourselves against those who attack us. This is the principle of self-defence with regard to the individual. The rule established in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18] is, in essence, an application of the doctrine of self-defence also to the State and society or, if you prefer, an extension of the doctrine of self-defence recognized in the sphere of the individual to the right of the State to protect itself against those rising up against it to destroy it. Just as the individual is entitled to defend himself against those who attack him, so is the State entitled to defend itself against those who attack it, whether from without or from within. Another example in this context can be found in the defence of necessity. This defence also constitutes a recognition of the human instinct, the instinct to take action to defend oneself (or another). In this context we ought to mention the commandment of observing the Sabbath, which is one of the most exalted commandments: ‘this is the commandment of the Sabbath which is equivalent to all of the commandments of the Torah’ (Jerusalem Talmud, Tractate Berachot, 1, 5 [48]). Notwithstanding, this commandment withdraws before the saving of life:

‘Rabbi Yishmael and Rabbi Akiva and Rabbi Eleazar ben Azarya were going on a journey and Levi the net-maker and Rabbi Yishmael the son of Rabbi Eleazar ben Azarya were walking behind them. The following question was asked of them: From where do we know that saving life overrides the Sabbath?

… Rabbi Yehuda said in the name of Shemuel: … “and you shall live by them” — and not die by them…’ (Babylonian Talmud, Tractate Yoma, 85a-b [49]).

The Torah and its commandments were given for people to live by them, and not for people to die by them. Let a person therefore transgress a prohibition of observing the Sabbath and live. This is the desire for existence and survival and this is the cloak that envelops it. See also CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [22], at pp. 721 {387} et seq.).

Finally we should mention the doctrine of protecting property, which also is supposed to give expression to the human instinct. Thus, in the words of Oliver Wendell Holmes in his book on English Common Law: W. Holmes, The Common Law, Boston (1881), at p. 213:

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

The remarks of the wise judge admittedly refer to the protection of property, but it need not be said that the logic of them applies also to other human instincts. The codeword is the human instinct, an instinct that the law acknowledges, embraces within its protection and cloaks in the form of a right.

16. We have spoken until now of human instinct as a factor in the creation of rights (and duties) in law. In addition to human instinct, and with the same degree of force, human behaviour is directed by morality: basic principles of morality, forces, feelings and modes of behaviour between human beings. Some of the moral duties take the form of legal rights and duties — rights and duties that are defined and can be easily identified — while others hover in the atmosphere of our world, the world of law, without attaching themselves to defined and recognized rights and duties. Our case belongs to the second group of moral duties. Note that we judges do not purport to invent moral obligations, or create duties with mere words and cloak them up in legal garb. All that we do is to give legal expression to the feelings of members of society, strong feelings built on moral foundations common to all mankind and moral principles that characterize the society in which we live.

17. We are concerned with a feeling that troubles us, an acute feeling of a moral wrong that we would do — to the young mother, her family, the society in which we live and even ourselves — if we but grant the appellant’s request and hand over his son to him. The difficulty is that if we give the appellant custody of his son — notwithstanding the desperate pleas of the young mother — we will be rewarding a villain with the fruits of his villainy, to our own shame and the shame of the society in which we live. ‘Have you committed murder and also taken the inheritance?’ So God instructed Elijah the Tishbite to cry out before Ahab on account of Naboth the Jezreelite. Thus Elijah indeed cried out, and the punishment of Ahab and of Jezebel his wife was determined accordingly:

‘And the word of the Lord came to Elijah the Tishbite, saying: Arise, go down to meet Ahab, king of Israel, who is in Samaria: behold he is in the vineyard of Naboth, whither he has gone down to inherit it. And you shall speak to him, saying: Thus says the Lord: Have you committed murder and also taken the inheritance? And you shall speak to him, saying: Thus says the Lord: Where the dogs licked the blood of Naboth, the dogs shall also lick your blood: … And also to Jezebel the Lord spoke, saying: the dogs shall eat Jezebel by the wall of Jezreel; whoever dies of Ahab in the city shall be eaten by the dogs, and whoever dies in the field shall be eaten by the birds of the sky’ (I Kings 21, 17-19, 23-24 [50]).

Ahab’s punishment was as God had spoken. Ahab was killed in the war with Aram, and his end was as the prophecy foretold:

‘So the king [Ahab] died, and was brought to Samaria, and they buried the king in Samaria. And they washed the chariot by the pool of Samaria and the dogs licked up his blood and washed the armour according to the word of the Lord that He spoke’ (I Kings 22, 37-38 [50])

Jezebel too, who initiated and perpetrated the legal murder of Naboth the Jezreelite, met her fate, according to the word of God spoken by Elijah the Tishbite:

‘And then Jehu came to Jezreel, and Jezebel heard and she painted her eyes and straightened her hair and looked out from the window. And Jehu came into the gate, and she said Is it peace, Zimri, killer of his master? And he looked up towards the window, and said: Who is with me, who? And two or three servants looked out in his direction. And he said: Throw her down, and they threw her down, and some of her blood splashed onto the wall, and on the horses and he trampled her. And he came and ate and drank, and he said: Please go to the accursed woman and bury her, for she is a king’s daughter; and they went to bury her, but they only found her skull and her feet and her hands. And they returned and told him, and he said: It is the word of the Lord that He spoke by means of His servant Elijah the Tishbite, saying: On the land of Jezreel the dogs will eat the flesh of Jezebel, and the dead body of Jezebel shall be as dung lying on the field on the land of Jezreel so that people will not say: This is Jezebel’ (II Kings 9, 30-37 [51]).

It can never be that a person will commit murder and inherit his victim. This moral imperative long ago became an accepted legal imperative, ever since the time of Adam. Cain murdered Abel, but even when he alone remained, Cain did not receive the Divine blessing that was given only to Abel.

This was also the case of David, Bathsheba and Uriah the Hittite. Bathsheba became pregnant with David’s child while she was married to Uriah the Hittite. In order to escape being convicted by a court, David ordered his soldiers as follows: ‘… Put Uriah in the front line of the fiercest battle, and retreat behind him, so that he is hit and dies (II Samuel 11, 15 [42]). Uriah was killed in battle and after the period of mourning ended, ‘David sent and gathered her into his house and she became his wife and bore him a son, but what David had done was evil in the sight of the Lord’ (II Samuel 11, 27 [42]). After this, Nathan the prophet told David the parable of the pauper’s lamb and David’s punishment was decreed as follows: ‘… the child born to you shall surely die’ (Samuel II 12, 14 [42]). And the punishment was not slow in coming:

‘… And the Lord made the child that Uriah’s wife bore to David sick, and it was on the point of death. And David entreated G-d for the child, and David fasted, and when he went in to sleep, he lay on the floor. And the elders of his household protested to make him arise from the floor, but he refused, and he would not eat with them. And it happened on the seventh day that the child died…’ (II Samuel 12, 16-18 [42]).

David loved his child — as a father loves his son — yet his child was taken from him and he did not see him again. In olden times, it was decreed that the child would die. In our times, the child will live. But just as the king of Israel did not have his child, so too the appellant will not have his child. Have you committed murder and also taken the inheritance?

18. In our society it is inconceivable that a person will commit murder and inherit his victim, and we will not accept — in principle — that a person can do wrong and profits from his wrongdoing. A clear and decisive legal expression of this moral imperative was given in Riggs v. Palmer [35], where it was held that a grandson who murdered his grandfather would not receive his inheritance from the grandfather under the will that the grandfather made in his grandson’s favour. According to the text of the law, the grandson was entitled to inherit his grandfather, for the grandfather had written a will in his favour. Nonetheless, the court held that by the act of murder the grandson had lost his right to inherit his grandfather. Why was this? Justice Earl made the following remarks, which have become a lesson for all time. My colleague, the Vice-President, cited his remarks and I will repeat them:

‘… all laws, as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are directed by public policy, have their foundations in universal law administered in all civilized countries, and have nowhere been superseded by statutes’ (ibid., at p. 190).

Justice Earl went on to say the following:

‘He therefore murdered the testator expressly to vest himself with an estate. Under such circumstances, what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime? The will spoke and became operative at the death of the testator. He caused that death, and thus by his crime made it speak and have operation. Shall it speak and operate in his favor? If he had met the testator, and taken his property by force, he would have had no title to it. Shall he acquire title by murdering him? If he had gone to the testator's house, and by force compelled him, or by fraud or undue influence had induced him, to will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet take the property? To answer these questions in the affirmative it seems to me would be a reproach to the jurisprudence of our state, and an offense against public policy.’

Let us consider the four question marks in the remarks of Justice Earl; these question marks follow four rhetorical questions. It is the practice of courts to make rulings and decisions. It is not the practice of courts to ask rhetorical questions, certainly not four rhetorical questions one after another. Indeed, these rhetorical questions indicate the judge’s state of mind, the stormy emotion within him, his firm decision not to allow the legal system to transgress the moral prohibition of ‘Have you committed murder and also taken the inheritance?’ (See also H. R. Hahlo, ‘When can a Murderer Inherit’, 16 Mod. L. Rev. (1953), 100-102).

Justice Earl relied on the statements of various scholars and on court rulings. He did not mention the tragedy of Naboth the Jezreelite, nor the tragic drama of Uriah the Hittite. We mention them, for they are part of our heritage. In our childhood, our fathers told us these ancient stories in our childhood and later we read them in our book, the Bible. We have grown up with them. They are our heritage. Their morality is our morality, and they are the pillar of fire and pillar of cloud that show us the way.

In conclusion I will cite what I said elsewhere with regard to the nature of the Basic Law: Human Dignity and Liberty. This Basic Law — so we thought then, and so we think even now — was mainly intended to give expression to rights that each and every one of us received directly from nature. Even after the Basic Law came into existence, the basic rights do not derive their moral and social strength from the Law but from the light, the heat and the strength hidden in them by virtue of their being the products of nature:

‘… In the future, we will mention the Basic Law — mention it and rely on it — as a document that incorporates basic rights. But we will know and remember the following two things: first, that those rights did not come into being with the Basic Law, and that the Basic Law, in principle, merely purported to give expression in statute to “natural” rights that existed before it. Second, the basic rights derive their moral and social strength not from the Basic Law as such but from themselves — from the light, strength and the heat hidden in them. They are like the bush that burned with fire but was not consumed. That bush has been with us since the earliest times. Others will say that the basic rights are the product of our moral and social outlook, and this is the source of their strength. Whichever is the case, the basic rights had strength and force before the Basic Law came into existence, and even then there was nothing that “forced” the courts to decide as they did, or prevented them from deciding otherwise. In substance, I have found nothing to have changed from then until now, even after the Basic Law came into existence’ (CrimApp 537/95 Ganimat v. State of Israel [23], at p. 401).

See also CrimApp 1986/94 State of Israel v. Amar [24], at p. 141; CA 3077/90 A v. B [25], at pp. 592, 594; M. Minervi, ‘Jus Naturale’, 3 HaMishpat (1996) 403.

19. All of this concerns the substance of the issues being addressed. We asked a question, and this is the answer: in principle, we will not allow a ruling to be made whereby a person may commit murder and also inherit, or do a wrong and benefit from his wrong. Another question — a separate question — is how will this moral imperative of ‘Have you committed murder and also taken the inheritance?’ find its way into Israeli law? This question arises particularly in view of the case-law rule that the grounds for adoption listed in section 13 of the Law constitute a closed list of grounds, unless a father gives his consent to the adoption of the child by a stranger, and the appellant has not given his consent. My colleague, the Vice-President, spoke of two methods of incorporating the rule in Israeli law, the first by way of interpretation and the second by filling a lacuna. Let us consider these two methods, one by one. We will begin with the method of interpretation

 ‘Have you committed murder and also taken the inheritance’ as a rule of interpretation

20. Those following the interpretative method — the method of broad interpretation — will say the following: the statute does not provide that the murderer will not inherit, but in interpreting the statute, we must do our best to try and ascertain what is the purpose of the statute, or in other words, what do we suppose the intention of the legislator would have been? What would the legislator have determined, had a set of facts like the one before us been placed before him? If we do this, we will know that the legislator would have determined — ab initio — that the murderer would not inherit. Therefore we will rule accordingly. In the words of Justice Earl in Riggs v. Palmer [35], at p. 189, citing from Bacon’s Abridgment:

‘In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question: Did you intend to comprehend this case? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given.’

And further on (ibid. [35]):

‘If the law-makers could, as to this case, be consulted, would they say that they intended by their general language that the property of a testator or of an ancestor should pass to one who had taken his life for the express purpose of getting his property?’

Let us again note the question mark at the end of the rhetorical question.

He also says (ibid., at p. 190):

‘What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable and just devolution of property that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.’

The method of broad construction is therefore the following: interpretation of the law, according to its language, leads us to a certain conclusion (that the murderer will inherit; that the father, the appellant, will be given his son). This conclusion defies justice, morality and common sense, and it is hard to assume that the legislator intended this to happen. Let us therefore consult the legislator — conceptually and normatively, of course — and ask him what would he have decided had he known what we know now. We know what reply the legislator would make, and we will determine the case accordingly. It need not be said that the personification of the legislator and our appearing before him for a consultation are merely a metaphor for interpreting the statute. The meaning is simply this, that we study the various provisions of the statute — in case we find a finger pointing in one direction or another — we look at the environment in which the statute was enacted and at the legal system as a whole, and first and foremost we consult our scruples and conscience, lest they reproach us at night. Last of all, we ‘interpret’ the law that requires interpretation by integrating it, as best we can, into the legal system as a whole and making it consistent with the basic principles of the legal system and our lives.

This method of broad interpretation is apparently accepted by Professor Ronald Dworkin (in his discussion of Riggs v. Palmer [35]: Dworkin, supra, at p. 23; R. Dworkin, Law’s Empire, Cambridge (1986), at p. 15 et seq.). Professor Dworkin summarizes the case of the murderer-heir: as follows (Law’s Empire, supra, at p. 20):

‘It was a dispute about what the law was, about what the real statute the legislators enacted really said.’

This, then, is broad interpretation and this, then, is the interpretation of the statute.

21. Personally, I find the interpretive approach in our case to be a path fraught with obstacles. Obviously, I agree with all of Justice Earl’s rhetorical questions — both the question and their implied answers. I also agree with the replies we assume that the legislator would have given us had we consulted him. I also agree that it is inconceivable that a person may inherit as a result of murdering the testator violently in order to gain an inheritance, and that we should come, after the murder, and give him his inheritance. I agree with all this. But I find it difficult to agree that, in the absence of a specific provision to this effect in the Inheritance Law, the interpretive approach is what leads us to this conclusion. Indeed, with respect to the case of the murderer-heir, the Inheritance Law, 5725-1965, expressly states that the person entitled under a will inherits. I therefore have difficulty in understanding how the ‘interpretation’ of that law can lead to a result which is the opposite of the one that the legislator directs. Indeed, it would be immoral and unjust were the murderer to inherit, and as we have said there is no doubt what the legislator would have replied had he been asked about the status of the murderer-heir. But none of this can change the wording of the law, even though it leads to an immoral, unjust and manifestly improper result; the words are clear. This same is true in the case before us, where according to the wording of the Law, the father, the appellant, is entitled to custody of his child. ‘Your intentions are desirable, but your actions are undesirable,’ said the angel to the king of the Khazars. I would say the same: the intentions of those advocating the use of the interpretive approach are desirable, but the actual use of the interpretive approach is undesirable.

22. I have difficulty following the interpretative approach, for the path is really not one of interpretation at all. The interpretation of a text that is before us involves the clarification and explanation of that text, idea and purpose. The text is in centre stage, and we the interpreters revolve around it. Indeed, the interpretation of a text is not merely the interpretation of the words in it, word by word. Letters form words, words combine into sentences, sentences organize themselves into a complete text, and the meaning of the words, the sentences and the text as a whole — the idea and purpose — are derived from all of these and whatever surrounds them, in many circles, some nearer and some not so near. But ultimately our intention is interpretation, and no matter how far out we go in those concentric circles — circles that surround and orbit the text — we will always return to the text. Indeed, we are concerned with interpretation of a text and with no other cognitive activity. Each word and each concept have their own spheres of subsistence, and even if the limits of those spheres of subsistence may be somewhat blurred, we know what they are in essence. Thus language is formed and this is the way that human beings communicate with one another. I said of this in another context, and I will be forgiven for repeating it (CrimFH 2316/95 Ganimat v. State of Israel [26], at pp. 639-640):

‘Language and speech, all language and all speech — language and speech in their broadest sense — are the creations of nature and man, and their purpose is to serve as a means of communication between human beings. This is true of animals, birds and the creature of the deep, and it is also true of man. Nor have we forgotten the Tower of Babel:

“And the whole earth was of one language and of common speech. And it came to pass when they journeyed from the east that they found a valley in the land of Shinar, and they dwelt there. And they said to one another: let us make bricks and burn them thoroughly; and they had brick for stone, and clay for mortar. And they said: let us build ourselves a city and a tower whose top is in heaven, and let us make ourselves a reputation, lest we are scattered over the face of the earth. And the Lord came down to see the city and the tower which the men had built. And the Lord said: behold it is one people and they all have one language, and this they have begun to do, and now they will stop at nothing that they conspire to do. Let us go down and we will confuse their language there, so that no-one understands the other’s language. And the Lord scattered them from there over the face of the whole earth and they stopped building the city. Therefore it was called Babel, for there the Lord confused the language of the whole earth, and from there the Lord scattered them over the face of the whole earth” (Genesis 11, 1-9).’

And in the words of the Midrash (Bereishit Rabba 38, 10 on Genesis 11, 7):

‘One of them would say to another: “Bring me water”, and he would bring him earth. He would hit him and smash his skull. “Bring me a spade”, and he would give him a rake; he would hit him and smash his skull. This is what is written: “and we will confuse their language there”…’

In their application to legal texts, the concepts of ‘interpretation’ and ‘meaning’ have their own significance, like every other abstract concept. These too have their own sphere of subsistence, and they also have limits that define their boundaries. Knowing all of this, I believe that those who adopt the interpretive approach in our case take the concept of ‘interpretation’ out of its proper context and give it a meaning which is entirely different. This is the case with the murderer-heir and it is the same with the case of the father-appellant before us. How can a text be ‘interpreted’ by reaching a conclusion that is inconsistent with the language of the text? How can we interpret ‘no’ to mean ‘yes’ or ‘yes’ to mean ‘no’? ‘No’ means ‘no’ and ‘yes’ means ‘yes’ whichever way we look at them, from below, from the side or from above.

A verdict that a murderer-heir will not inherit — even though the conclusion implied by the statute is, prima facie, that it is his right to inherit — may be a desirable verdict, and it is indeed desirable; it may be a moral verdict, and it is indeed moral; it may be a correct verdict, and it is indeed correct. But it is not an ‘interpretation’ of the statute, unless we go on to say that the concept of ‘interpretation’ encompasses also what is not ‘interpretation’ in the language of human beings, even if they are human beings involved in the law. If this is said, then we must regard ourselves as having climbed the Tower of Babel. Let the ‘interpretationalists’ come out and say openly: we describe as ‘interpretation’ of a text even what is not interpretation, for we are compelled to do so. We are creating an ‘interpretive’ fiction because this is the only way that we can do justice. Were they to say this, I would understand (but not agree). But to dress up as ‘interpretation’ what is not interpretation, and to bow to a naked emperor with a label reading ‘interpretation’ on his sceptre — I would rather compare myself to that small boy who says: ‘I do not understand and I do not agree’. Moreover, were they to say that they wish to extend and stretch not the concept of interpretation, but rather the subject of the interpretation — in other words, the interpretation is indeed interpretation, in spirit and letter, but the subject of the interpretation is no longer a specific statute, but rather the legal system that includes the statute — I would understand this. But if so, I think that the concept of ‘interpretation’ is inappropriate and another concept should be used, one which evokes different connotations and associations than those evoked by the concept of ‘interpretation’.

23. The result is that we find it problematic to adopt an interpretive approach that is not interpretive at all — in the simple and normal meaning of the concept of interpretation — but only in the language of the people of the Tower of Babel. And we all know what happened to the Tower of Babel.

 ‘Have you committed murder and also taken the inheritance?’ as a rule for filling a lacuna

24. We began by saying that we knew our goal, namely the purpose of the law. The question before us now is which way should we go in order to achieve the purpose of the law. We tried to follow the interpretive approach; we started upon it until we found that it was impassable. Therefore we turned around and returned to our starting point. Let us now try to go a different way, the way of the lacuna. In his work, Interpretation in Law (vol. 1, at p. 432), President Barak compares the legal system to a stone wall, and a lacuna in the legal system to a gap in the wall. As he puts it (following Prof. Canaris):

‘Just as there can be a gap in a stone wall where the builder forgot to place one of the stones needed to complete the wall, so too can there be a lacuna in the legal norm, or in the legal arrangement, which are built by the legislator (by his legislation)… when the creator of the norm forgets to complete them.’

It is clear and agreed that initially the interpreter — which means, for our purposes, the judge — should interpret the text that requires interpretation, and that only when he has finished the work of interpretation will he know whether there is a lacuna in the text. President Barak goes on to point out — following other legal scholars — the distinction between a ‘manifest’ lacuna and a ‘concealed’ lacuna. A ‘manifest’ lacuna will be seen to occur where the statute — if we are speaking of a statute — does not supply an answer to a set of facts that requires an answer and should be decided by that statute:

‘A manifest lacuna exists where the judge is confronted with the choice of whether to fill the lacuna or remain in a situation where there is no norm by which he is required to judge, and therefore he must refrain from judging. With this type of lacuna, the legal norm is incomplete, since it does not include situations that, in view of its purpose, should have been included in it. Because of this lacuna, the judge cannot apply the norm without completing it… the judge must fill the lacuna, for otherwise he is unable to give judgment… without filling the lacuna, the judge has no norm with which to decide the dispute, and he faces the choice of filling the lacuna or refraining from giving judgment… the lacuna is “manifest”, since from the language of the legal norm it is manifest that it does not apply to the situation which the judge is required to decide’ (ibid., at p. 481).

A ‘manifest’ lacuna is therefore literally a lacuna: the judge must decide certain disagreements, but there exists no norm that provides an answer to the question (nor does the statute’s silence indicate a negative arrangement). Neither the statute nor the legal system as a whole include a norm that applies to the set of facts. See also CA 4628/93 State of Israel v. Apropim Housing & Promotions (1991) Ltd [27], at pp. 316-318, 323 et seq. {125-127, 136 et seq.} (per President Barak).

Alongside the manifest lacuna, there also exists the ‘concealed’ (hidden) lacuna. The definition of this lacuna is more subtle than the definition of the manifest lacuna (see Barak, supra, vol. 1, at pp. 481-482):

‘… A concealed lacuna exists where the norm, according to its language, applies to a situation that requires a decision. Notwithstanding, according to the purpose of the norm, an exception or limitation should be recognized with regard to this situation. The norm is defective because the exception or the limitation are not recognized by it, and the judge fills the lacuna by recognizing them. In these circumstances, the judge is not confronted by a choice of completing the lacuna or refusing to give judgment. Even without completing the norm, it applies to the situation that requires a decision, since its language extends to this situation. Notwithstanding, applying the norm to that situation is contrary to the purpose of the norm. The lacuna is “concealed” because from the language of the norm itself one can conclude that it applies to the situation requiring a decision, and only by studying the purpose of the legislation can one conclude that the norm should not be applied to that situation.’

As an example of a concealed lacuna, Barak discusses Riggs v. Palmer [35] (although he does not mention it by name), and he says, in his aforesaid book (vol. 1, at p. 482):

‘… Suppose that the Inheritance Law did not provide that someone who murders the testator cannot inherit. It could be said, that according to the (general) language of the statute, even the heir-murderer inherits. This is contrary to the purpose of legislation, which incorporates, inter alia, the principle that a person should not benefit from the fruits of his forbidden acts. The absence of an express exception in this regard is a concealed lacuna, which will be filled by a (judicial) recognition of an exception with regard to the heir-murderer.’

From these remarks we can see that an inheritance law that does not rule out the inheritance of an heir-murderer contains a ‘concealed’ lacuna. The same can also be said in our case, that the statute contains a ‘concealed’ lacuna in so far as it says that the child should be given to the appellant, his biological father.

24. I said that the definition of ‘concealed’ is a more subtle definition than the definition of the ‘manifest’ lacuna. The definition is so subtle that one could argue that a ‘concealed’ lacuna is not a lacuna at all. Indeed, in my opinion the ‘concealed lacuna’ is a framework that appears to be different from what it really is. The bottle has a label with the words ‘concealed lacuna’, but the drink in the bottle does not taste like a lacuna. Let me explain.

As we have seen, a ‘manifest’ lacuna is apparent to everyone (even though even in our case arguments can be made that are similar to those that we make in a case of the ‘concealed’ lacuna). You look at the stone wall and see that a stone is missing. You want to find in a statute an answer to a question that should be regulated by that statute, and you find that the statute does not have a provision that answers the question. The ‘concealed’ lacuna is different. A ‘concealed’ lacuna can exist even where, prima facie, there is no ‘genuine’ lacuna in the statute. On the contrary, the statute provides a full and complete answer to the question, but the answer is not exactly to our liking, such as, for example, the answer of the inheritance law that the heir-murderer will inherit, or that the appellant should be given his child because he is his biological father. We do not like these answers, and we think that the legislator should have stipulated an exception in these cases. Thus, for example, in the case of the heir-murderer, ‘it is inconceivable’ that the legislator intended — in principle — to give him the estate of the murder victim. The same is true of the appellant before us, who trampled and violated the body and soul of the mother of his child, and made her into a kind of test tube and womb on demand, to satisfy his desire for a child. Did the legislator seriously intend to give the appellant his child? This is our question, and following Justice Earl (in Riggs v. Palmer [35]) the answer lies hidden in the question. Now that we have equipped ourselves with the answer, let us turn back, return to our point of departure, and say: we have now discovered a ‘lacuna’ in the statute, and the ‘lacuna’ is that the legislator did not prescribe an exception in the case of a murderer-heir and in the case of someone like the appellant before us. Let us therefore fill that ‘lacuna’ — like a lacuna that was manifest from the outset — and let us prescribe an exception to the rule.

If we regard the ‘concealed’ lacuna in this way, we will also realize that our case does not involve a ‘lacuna’ in its simple and normal meaning in human language. A ‘concealed’ lacuna is not a lacuna, unless we overextend the concept of the ‘lacuna’ and widen its scope inappropriately. Indeed, whereas a ‘manifest’ lacuna is indeed a lacuna, in the simple sense, a ‘concealed’ lacuna can be described as a ‘purposeful’ lacuna, a ‘fitting’ lacuna, a ‘required’ lacuna, a lacuna that we see in our minds because we think that we ought to see a lacuna. It is as if we said: there should be a lacuna and therefore there is a lacuna. We create a ‘concealed’ lacuna with mere words, and we create it simply in order to inject into the legal system the norms that we deem proper, norms that we think are lacking in the legal system. Such a lacuna is not a ‘genuine’ lacuna at all; it is an illusion, like laser beams wandering through space, a mirage. It looks like a lacuna, but is not a lacuna. See also Zandberg v. Broadcasting Authority [19], at p. 824, per President Barak). We should also point out and clarify that the concealed lacuna is different from the basic principles that we use regularly in interpretation. The latter help us to choose from among the variety of possible interpretations that method of interpretation that is consistent with basic principles, whereas in our case they purport to dictate to us a solution that the statute does not prescribe at all, and, what is more, that solution proposed to us conflicts with the prima facie stipulation of the statute.

Let us conclude by saying that in the opinion of Kelsen, the concept of the ‘lacuna’ in the legal system is nothing more than a fiction. According to Kelsen, in a functioning legal system there are no lacunae — neither manifest nor concealed. See H. Kelsen, General Theory of Law and State, trans. A. Wedberg, Cambridge (1949), at pp. 146-149. Unlike Kelsen, we are only attacking the ‘concealed’ lacuna.

25. We therefore conclude that the path of the lacuna will also not succeed, and it too will merely lead us into a vicious cycle, with no beginning and no end. Let us therefore return to our starting point and try to choose our path.

26. As we said at the beginning of our opinion, we must distinguish between substance and the legal technique used to inject that substance into the legal system, or to be more precise, the method of recognizing that substance — the incorporation of that substance — into the legal system. With regard to the substance, I believe that my colleague, the Vice-President, and I agree, and I share his opinion that we should do our utmost to ensure that the wrongdoer does not profit from his wrongdoing. The disagreement between us merely concerns the legal technique for recognizing the existence of that principle in Israeli law, whether we can integrate that principle into Israeli law by means of interpretation or by means of filling a ‘concealed’ lacuna. My colleague believes that the principle of ‘have you committed murder and also taken the inheritance?’ — as a general principle — can be recruited by our law both into the ranks of interpretation and into the ranks of the concealed lacuna, whereas I believe that neither interpretation nor the concealed lacuna — neither the one nor the other — can sustain the burden of a proposed solution. Not only is that solution not implied by the language of the statute, but it even contradicts, prima facie, the provisions of the statute.

‘Have you committed murder and also taken the inheritance?’ as a substantive principle of law

27. If we do not follow the way of interpretation nor the way of the lacuna, what path shall we take? In order to discover the path, let us go back somewhat and remember what we said in our opening remarks, namely that we knew from the beginning that the appellant was unworthy to be given his son. Legal intuition — the conscience and instinct of the expert — inspire a judge at all times, and it is a major factor in his judicial work. See Cardozo, supra, at pp. 165 et seq.; Dworkin, Law’s Empire, supra, at p. 10; A. Barak, Judicial Discretion, Papyrus (1986), at pp. 196-198. In our case, that intuition is acute to the point of being painful, exactly like the feeling of Justice Earl, in Riggs v. Palmer [35], and the feeling of all of us with regard to the case of Naboth the Jezreelite and the case of Uriah the Hittite. After we discussed the substance, we set out on a journey to search for a way to integrate that substance into Israeli law. As we stand at the crossroads, knowing clearly where we wish to go, I think that it is proper that we should be honest with ourselves and with others, for frank speech may in itself map out our path. This, in truth, is our opinion; the same substance that dictates our decision will also pave the path that we are trying to find.

Prima facie, the matter is simple: that substance is, in truth, a binding legal norm in Israeli law, an independent fundamental principle, a creature that stands on its own feet, speaks with its own voice and its own language. This creature speaks for itself and does not need a mouthpiece to announce its message to Israeli law, neither the mouthpiece of interpretation nor the mouthpiece of a lacuna. This basic principle exists independently in the sphere of Israeli law, alongside other fundamental principles and alongside statutes, Basic Laws and other elements that comprise Israeli law in its entirety. This basic principle is on a level with statute, and it is a companion to statutes. It is, in essence, neither a rule of interpretation, nor a rule of lacunae (even though in its application it may assist also in interpretation and in filling a lacuna). It has independent existence, stands on its own feet and speaks to statutes as an equal amongst equals.

If an analogy is required, we will mention the principle of the freedom of occupation before the enactment of the Basic Law: Freedom of Occupation. The freedom of occupation, it will be remembered, was established in HCJ 1/49 Bajerno v. Minister of Police [28], and its status was the status of statute. In other words, the freedom of occupation was recognized as a fundamental principle in Israeli law — as if written expressly in statute — and only statute could override it. See, for example, HCJ 337/81 Miterani v. Minister of Transport [29], at p. 363, per Vice-President Shamgar. Indeed, it is obvious that only a statute can set aside or restrict a right that also has the force of statute. This was the status of the freedom of occupation before the enactment of the Basic Law: Freedom of Occupation. This is the status of the basic rights today, even if they have not found themselves a home in the Basic Laws; and this is the force of that substance in our case. The fundamental principle that a murderer may not inherit his victim — a principle expressed in the cry ‘Have you committed murder and also taken the inheritance?’ — is a fundamental principle which has the status of statute, and its relationship to the Inheritance Law is like the relationship of a lex specialis to a lex generalis. It is the law when someone has committed an infamous act, an act that — as a matter of principle — must not benefit him. This principle is also a fundamental principle of Israeli law, and its status is that of statute. It stands together with statutes, regarding them as an equal among equals.

In other words, the doctrine of ‘Have you committed murder and also taken the inheritance’ in its broad sense does not need to hide behind other basic legal principles or rules. It is no credit to us nor to it to reveal it to us with a mask of interpretation or filling a lacuna. It is not proper for us to do this, either to it or to ourselves. Is it fitting — is it creditable — that a fundamental doctrine like the doctrine of ‘Have you committed murder and also taken the inheritance?’ should enter into Israeli law only by virtue of an alleged ‘lacuna’ that appears in the law? We cannot say this. Let us walk together with the doctrine openly in the street, since it is a living creature that is independent. We are not ashamed of it, and let it not be ashamed of us. Let us not call it a rule of interpretation; let us not reduce its stature so that it becomes merely a minor force in the law. Let us not regard it as a kind of understudy called onto the stage only when there is a ‘lacuna’. There is no justification for doing so.

28. Let us confront the issue squarely. In Riggs v. Palmer [35], under the provisions of the statute — interpreted literally — the grandson, the murderer, would have inherited from his grandfather, the murder victim. Notwithstanding, the court ruled — albeit by majority opinion, but without hesitation — that the grandson would not inherit from his grandfather. The court therefore ruled, prima facie, contrary to the provisions of the statute. The same is true in our case. According to a literal interpretation of the statute, the father, the appellant, should be given his child as he wishes. Nonetheless, we are ruling that by his infamous act the father has lost his right to his child. Thus we are proposing to rule — exactly like Justice Earl in Riggs v. Palmer [35] — prima facie, contrary to the provisions of the specific statute. In both cases the statute is clear. Nonetheless, Justice Earl made his decision, and we too are making our decision. Assuming that our decision is ‘correct’ — and that is now our assumption — is it right, is it reasonable, is it creditable, is it sufficiently persuasive that we should say that we are making our ruling on the basis of rules of ‘interpretation’ or by filling a ‘lacuna’? The answer to this question, in my opinion, is emphatically no. The force of the reasons that led Justice Earl to make his ruling, the force that leads us to make our ruling, is too great and powerful to be included in rules of ‘interpretation’ or to be called upon to fill a supposed ‘lacuna’. The force is, at least, the force of statute, and if this is so, then we are obliged to proclaim this publicly.

29. The matter can also be presented in the following manner: we are dealing with a rule and an exception to the rule. The rule is that a beneficiary under a will inherits; the exception to the rule is that a murderer may not inherit from his victim. The question is merely who has the ‘burden’ of establishing the exception. Shall we say that the legislator has the duty of prescribing both the rule and the exception thereto, and when he did not prescribe the exception to the rule the rule will apply and the heir-murderer will receive the inheritance? Or should we say, the rule is universally accepted, but to the same extent — and with the same force — the exception to the rule is also accepted as an accepted principle of Israeli law, namely that the murderer-heir may not inherit. Thus, if the legislator nonetheless wanted the heir-murderer also to inherit, he should have legislated this expressly. And if he did not legislate to this effect, the exception will apply as if automatically, like the rule itself. Our opinion is consonant with the second alternative, since it has the force of an independent rule.

30. Our opinion is therefore that the principle of ‘have you committed murder and also taken the inheritance?’ — in its broad sense — is an independent principle in Israeli law, and it has the status of statute. Indeed, this principle — alongside other similar principles — is one of the sources of Israeli law, alongside statute and the other sources of law.

Concerning the Foundations of Justice Law

31. Here we wish to make a remark on our methodology, as a continuation of what we said above with regard to the ‘concealed’ lacuna, which in our opinion is merely a lacuna that we ourselves created by calling it such. Under the Foundations of Justice Law, 5740-1980, when a judge is confronted with a question of law that requires a decision, the court is supposed to seek for an answer to the question in statute, case-law or by way of an analogy. If the court finds in one of these sources an answer to the question of law that came before it, so much the better; but if it does not find an answer to the question, then — and only then — the court will decide the question ‘in view of the principles of liberty, justice, equity and peace in Jewish heritage’, as stated in the Foundations of Justice Law:

‘Supple-mentary sources of law        1.             If the court identifies a question of law that requires a decision, and it does not find an answer to it in statute, case-law or by way of an analogy, it shall decide it in the light of the principles of liberty, justice, equity and peace of Jewish heritage.’

This formulation of the sources of law and the order of priority between them not only beckons and invites the reader to the conflicts between them (which we will not consider now), but it itself contains a kind of unanswered question. The question is this: when, and in what circumstances, will the court identify a ‘question of law that requires a decision’? To emphasize the point: When and in what circumstances will it be said of the court that ‘… it does not find an answer to it [the question of law] in statute, case law or by way of an analogy…?’. This is precisely the case of Riggs v. Palmer [35]: is the murderer-heir entitled to come into the inheritance? The statute does not make any special provision for the murderer-heir, and, reading the text literally, he too is supposed to inherit from his victim, the testator. This is what the murderer-grandson argued before that Court. Then the party opposing this stood up and argued: indeed, we intend, and we are commanded, to respect the wishes of the deceased in his will. That is indeed the law as a rule, but it is not the law with regard to a murderer who murders the testator in order to come into an inheritance under the will. Each party makes his argument, and thus a ‘question of law that requires a decision’ presents itself before the court: is the heir-murderer entitled to come into the inheritance?

32. The Court therefore sets out on a journey — to try and find ‘… an answer to it [a legal question] in statute, case-law or by way of an analogy…’ — and first it encounters ‘statute’, i.e., the Inheritance Law. As commanded by the legislator, the court enters into the edifice of the Inheritance Law, going into its different sections, exploring its rooms and lighting up its passages. Has the court ‘found’ or has it not ‘found’ an answer to the question? One party (on behalf of the grandson) argues that the Court has indeed found an answer to the question, and the answer is this: the grandson, the murderer, is supposed to inherit under the will of his grandfather, the murder victim. This is the plain meaning of the text and the law contains no provision that denies the grandson this right. It follows that the statute provides an answer to the question. The court has ‘found an answer to it [the question] in statute…’. The grandson will receive his grandfather’s estate and the court will not even consider the other sources listed in the Foundations of Justice Law — case-law, analogy, and certainly not the principles of liberty, justice, equity and peace of Jewish heritage. A simple answer.

But is this really the case? Is it really true that in the case of the grandson-murderer the Inheritance Law provides an ‘answer’ and the grandson inherits? There are those who think that this is indeed the law, and they cannot be dismissed lightly. See, for example, the article published by the great Roscoe Pound on the case of Riggs v. Palmer [35]: ‘Spurious Interpretation’, 7 Colum. L. Rev. (1907), 379 [56]. Pound refers to the path adopted by Justice Earl in his decision as ‘spurious interpretation’ (or, if you prefer, contrived interpretation or unlawful interpretation) and vehemently criticizes the decision on the merits. (Incidentally, I will point out that I agree that the decision in Riggs v. Palmer [35] is not based, in truth, on ‘interpretation’ of the statute — we have discussed this at length — but I do not agree that the decision was wrong. It is possible that this is the difference between the academic whose thoughts are merely theoretical, no matter how brilliant and learned he is, and the judge — even in the lowest court — whose decision will rest on his conscience: ‘Even at night my conscience tortured me’: Psalms 16, 7 [44]). This is the argument of one party.

33. The other party oppose this and say: the combination of words ‘a question of law requiring a decision’ creates a loaded formula. The formula is not concerned only with a question that arises from a study of the words of the statute that require interpretation, as if we are dealing with a technical question and a technical answer. The formula (also) concerns a question that — in itself — is a question worthy of coming before the court for a decision. The formula is not merely a technical-mechanical formula. It also includes an ethical message, as if the statute were saying to us: ‘a question of law that requires a decision’ is a question of law that is worthy of being decided. This is said of a question that comes before the court for a decision, and the measure of the question is also the measure of the answer. The combination of words ‘… and it does not find an answer to it in statute’ does not mean the naked statute, as if the statute existed alone in a world of its own. Were we to say this, then in Riggs v. Palmer [35] we wound find an answer in the statute, and the answer is that the grandson-murderer will inherit from his grandfather, the victim. But when we start with a question of law that is worthy of being decided in its own right — should we give the grandson, the murderer, the estate of his victim — it is only natural that we should expect the statute to provide a worthy answer, a specific answer to that question. For it can be presumed that in his legislation the legislator will give worthy answers to worthy questions, specific answers to specific questions. We have found a worthy question, but we have not found a worthy and specific answer. Therefore the second party will say in conclusion: ‘… the court has not found an answer to it [the question] in statute…’, i.e., the Inheritance Law.

34. According to the second party, is the meaning of their remarks that we should now consider the other sources of Israeli law, including ‘the principles of liberty, justice, equity and peace of Jewish heritage”? The answer to this question is not simple and we will not be drawn into it. We will merely hint at the following: we said that the combination of words ‘a question of law that requires a decision’ is a ‘loaded’ phrase, and it refers to a question that is worthy of coming before the court for a decision. In classifying the question as a ‘worthy’ question, it is as if we have added, in a whisper or a wink, that an heir-murderer is not worthy of inheriting from his victim. The answer to the question lay in the very classification of the question as a ‘worthy’ question. Moreover, how do we ‘know’ that the question is a ‘worthy’ one, and how do we also ‘know’ in our sub-conscience the answer to the question? The answer to this is that it is because of who we are, because we are motivated by feelings of morality and integrity that beat violently within us. And these derive from the principles of liberty, justice, equity and peace of Jewish heritage. This source of Israeli law is admittedly the last source according to the Foundations of Justice Law, yet we found it inside us at the beginning of our journey. The ‘law of nature’ and Jewish heritage are like one; we have come full circle and east meets west.

Law and morality and the difference between them

35. We have said that the principle ‘Have you committed murder and also taken the inheritance’ is numbered among the sources of Israeli law; its status is that of a principle, its stature is that of statute. We all know that this principle is a moral one, and that morality directs our actions and thoughts, as though inherent in our genetic code, and it is a force whose intensity may be compared — in its normative sense — to the intensity of the desire for existence and survival. It would appear that shortly after we recognized that Cain acted wrongly in killing Abel, we also recognized that we would not permit a murderer to inherit from his victim. Nonetheless, in its important parts statute ought to give normative-legal expression to moral imperatives that we have been commanded to observe. In the words of Prof. M. Silberg, a justice of the Supreme Court of Israel, in his book Kach Darko Shel Talmud, 2nd edition (1964), at p. 67:

‘The realms of morality and law form two concentric circles that overlap only partially — the more that the dividing line between them retreats, the greater the moral area and content of the law. The ideal position is that the two circles will overlap totally, as water covers the sea.’

(Personally, I believe that law and morality are like two excentric circles that create three areas; the two circles move back and forth all the time like the movement of continents. But we will not expand).

Morality and its imperatives are like a lake of pure water, and the law and its imperatives are like water lilies, spread over the surface of the water and drawing life and strength from the water. Morality nourishes the law at the roots and it surrounds the law. Some of the water lilies give legal force to moral imperatives; other water lilies act as basic legal concepts that are filled with content by the imperatives of personal and social morality, such as with the concepts of ‘morality’ and ‘justice’, and also the concept of ‘good faith’. Sometimes morality finds its place amongst us as is, without needing any intermediaries, and there are water lilies that exist without any basis in morality. The water lily known as the Adoption of Children Law — and the same is true of the water lily known as the Inheritance Law — are both nourished by the waters of morality, and these waters surround them. Thus we ‘know’ that the question ‘Have you committed murder and also taken the inheritance’ is a ‘worthy’ question; thus we ‘know’ that this question has no answer in the Inheritance Law; thus we ‘know’ that this question does have an answer in the law of inheritance. Thus we also ‘know’ that the question whether a particular question is a ‘worthy’ question, and whether it has an ‘answer in statute’, is a question — it may be called: the ultimate question — that nourishes itself with the principles of morality that beat within us, principles of morality that are derived from the principles of liberty, justice, equity and peace of Jewish heritage. As we have said elsewhere (‘Jewish heritage and the Law of the State’, Civil Rights in Israel, Articles in Honour of Haim H. Cohn, The Association of Civil rights in Israel, R. Gavison, ed. (1982), 47 [50], at p. 97):

‘… legislation of the Knesset — together with case-law made by the courts in the past and the present, from time to time, without any basis in express legislation — are nothing more than trees planted by streams of water, islands in the sea, plants in a greenhouse; someone who is supposed to determine the law must bathe himself in the stream, sail on the sea, experience the atmosphere of the greenhouse.’

36. My colleague, the Vice-President, and I have chosen a difficult path. The path is easy for the moralist, but it is not so easy for persons involved in the law. The moralist will do as his heart tells him, and live. Persons involved in the law cannot always do what their heart tells them. Sometimes he is compelled by words, and sometimes he is compelled by circumstances. The question of whether he is compelled by words (which words?) or not is also a difficult decision that a judge must make. These issues struggle with one another inside his heart, and his path is a hard one. The case is a hard one and the path is a hard one.

Hard cases make bad law

37. Our case is a difficult one and we are know that ‘hard cases make bad law’. We must therefore go cautiously and consider our remarks very well. Ours is a ‘hard case’ and caution is needed in case we decide and make ‘bad law’. Why do people in the law fear that ‘hard cases’ will lead to ‘bad law’? The people who say this are not referring to the result of the specific case before the court. Quite the opposite, a ‘hard case’ in our context is a case where the decision is difficult because statute points, prima facia, to the north, whereas the heart of the judge points to the south. It is as though the law has not ‘adapted’ itself to the special set of facts before the court. This is the source of the apparent gulf between the law and the heart, and the source of the difficulty experienced by the judge. At the end of the trial in that ‘hard case’, the judge decides according to the dictates of his heart, but that decision has difficulty in finding a place within the framework of the specific statute or within the framework of the general law. Justice is done in that case — this is agreed by all — and the fear is merely that perhaps in the future, in circumstances that are not identical to the circumstances of the case in which the ruling was made, the courts will follow the ruling that was made, and the law will become absurd in the extreme. I do not have any suggestion or solution for all kinds of ‘hard cases’, but with regard to our case I will say a few words.

38. Without doubt, our case presents us with an unique and special instance of two disciplines that affect one another and overlap with one another: the discipline of law and the discipline of morality. It can be said that legal authority has stated its position, seemingly, but we have said that moral authority will make legal authority complete. The decision is an unique and special decision, literally a ‘royal edict’. If, then, it is a royal edict — and this is indeed what it is — let us give it a place in the room where royal edicts are kept. In this room we will find, for example, the decision in Riggs v. Palmer [35]. Here too we will find the decision made in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18]. The decision in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18] was the only child in its family, and the proof of this is that subsequently the court refused to apply the ruling in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18] — the case-law rule of defensive democracy — in similar, possibly very similar, cases, but cases that were similar but not identical. Indeed, it was in EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset [30] that the court refused to extend the case-law rule regarding defensive democracy and apply it also to a racist political party. See also CLA 7504/95 Yasin v. Parties Registrar [31], and CLA 2316/96 Isaacson v. Parties Registrar [32].

As a ‘royal edict’, our decision in this matter is subject to the law of kings, and not to the law of the common people, and we cannot derive the law of the common people from the law of kings. The royal edict may be likened to those ‘noble’ elements of nature, elements that constitute a kind of closed order that no others can enter. ‘I have seen the noble people, and they are few’ (Babylonian Talmud, Tractate Sukkah, 45b [52]). If we regard this ruling as such — and this is how it should be regarded — we will not fear for the future. The case is a hard one, but there is no fear that the ruling is a bad one. If in the future a case similar to this one arises, we will examine it on its merits and decide it as it ought to be decided.

The judge as an interpreter of life

39. The life of the appellant and his wife has not been an easy one. Despite their many efforts, they did not succeed in producing a child. The appellant’s strong desire for his own child put into his mind a perverse idea as to how he could have his own child and continue his family life as before. He thought and acted. Now he asks that we too shall be accessories to his act, if only accessories after the fact.

Elsewhere I compared a judge to a writer and poet, a painter and sculptor, a composer and a playwright. I went on to say that the judge, like all of these, ‘is also an interpreter of life, a creative interpreter’ (M. Shamgar — A President of Judges — A Judge and Man’, 26 Mishpatim (1995) 203 [51], at pp. 206-207). We have interpreted the life of the father-appellant. We have interpreted the life of the young mother. We have looked around us and interpreted our own life. The conclusion that we reached is the only conclusion that we could have reached. There is no other.

 

 

Justice I. Zamir

I agree with the opinion of my colleague, Justice Dorner.

My colleagues, Vice-President S. Levin and Justice M. Cheshin, also agree that the list of grounds for declaring a child adoptable, as set out in section 13 of the Adoption of Children Law, is a closed list. This is apparent from the wording of the section and this has been held in case-law. Notwithstanding, Vice-President S. Levin adds (in paragraph 9) an additional ground not mentioned in the list, namely ‘that a parent is not permitted to refuse to have a minor declared eligible for adoption if doing so contradicts public policy regarding the deeds that lead to the birth of the minor’. Justice Cheshin, in his own way, adds as a ground (by way of analogy) that a murderer may not inherit. It therefore follows that, in the opinion of my colleagues, although in theory the list is a closed one, they have in practice a key that allows them, if and when they think fit, to open up the list to other grounds. How is this so?

Indeed, the appellant behaved like a wretch, and from a moral viewpoint, and perhaps also from the viewpoint of public policy, he is not entitled to benefit from the fruits of his wrongdoing. But immorality, of whatever kind and to whatever degree, is not included in the list of grounds for adoption set out in section 13 of the Adoption of Children Law. There are parents who have committed abominable crimes, and there are other parents whose behaviour is immoral in the extreme, but these in themselves are not a ground, in theory or in practice, for taking away their children for the purpose of adoption. This is not because the legislator was oblivious to morality: section 13(8) of the Adoption of Children Law provides that a refusal to give consent to adoption for an immoral motive is a ground (whether an independent ground or a supplementary ground) for adoption. But the statute does not provide that immoral behaviour in the past is also a ground for adoption, unless, of course, this behaviour establishes one of the grounds stipulated in section 13.

It is true that the wording of a statute, in any statute, does not necessarily constitute an insuperable barrier before the court when it seeks to do justice in accordance with the purpose of the statute. There are situations in which there are especially powerful reasons of justice or necessity, public or personal, that may induce the court to rely upon a hidden intention or a presumed intention of the legislator, not only to interpret a text other than in accordance with its literal meaning, but even in order to turn the text on its head. This is what happened, for example, in the famous case of Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18]. Nonetheless, it is clear to me that Vice-President S. Levin and Justice Cheshin, who cite this case as an example, both agree that the court should only take this path in a rare case, when all other paths are unavailable.

In my opinion, in the case before us there is no need to take this path, and it is immaterial whether we call this broad construction or filling a lacuna, according to the method of Vice-President Levin, or a fundamental principle, according to the method of Justice Cheshin. In the case before us there is no justification for breaking out of the framework of the list of grounds prescribed in section 13, since the case falls within the scope of this section, without it being necessary to distort the language of the section or to depart from the case-law that has held that this section provides a closed list of grounds. The following is the wording of section 13(7):

‘The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation.’

Even though case-law provides that the best interests of the child, in themselves, are not a ground for adoption, but rather a ground for adoption among the grounds set out in section 13 of the Adoption of Children Law must be found, it is clear that all the grounds in this section are merely, as Justice Dorner says (in paragraph 9), ‘a list of cases in which the best interests of the child are harmed because the parent does not carry out his duty towards him or is incapable of doing so’. Moreover, subsection 13(7) of the Adoption of Children Law, more than any other subsection, clearly and firmly places the best interests of the child within the framework of the ground stated there; for under this subsection, a child may be declared adoptable if ‘the parent is incapable of looking after the child properly’. In other words, if the parent is incapable, because of his behaviour or situation, of ensuring the best interests of the child. This is also what Justice Cheshin says (paragraph 4). See also the remarks of Justice Cheshin in CFH 7015/94 Attorney-General v. A [2], at pp. 104-109.

The incapacity of the parent may derive, as stated in section 13(7), from two factors: the behaviour of the parent or the situation of the parent. ‘Behaviour’ and ‘situation’ are broad and flexible terms. They include many strange circumstances, and perhaps it may be said that they include every circumstance that relates to a parent, if it leads to his incapacity to take proper care of his child. The following was said by the Commission for Examining the Adoption of Children Law, whose report first recommended the legislation of this subsection, at p. 35 of the aforesaid report:

‘The idea underlying this provision is that it is impossible for the legislator to define, in pure legal language, all the situations and elements that must be taken into account in the considerations of the court, for life is usually more complex and varied than anything that the legislator can imagine.’

It follows that subsection 13(7) of the Adoption of Children Law is, in fact, a kind of ‘catch-all’ provision. As Justice Bach said in CA 522/87 A v. Attorney-General [33], at p. 440, ‘the words “or his situation” refer to all aspects of the objective circumstances’.

Admittedly, as a rule, when referring to the ‘situation’ of a parent, we mean his personal situation, or one might say his subjective situation, i.e., his own physical, emotional or mental situation. The most common case in which use is made of subsection 13(7) of the Adoption of Children Law is the case where a parent is addicted to drugs, or he is emotionally or mentally disturbed, or he has a disability or a defect that prevent him from caring properly for his child. But the term ‘situation’ is not limited and ought not to be limited, either with regard to the language of the statute or with regard to the purpose of the statute, to the subjective situation of the parent. It also includes the parent’s objective situation, namely the situation in which he finds himself, including his environment, especially if he finds himself in that situation because of his behaviour. If the situation, in this sense, makes him incapable of caring properly for his child, and there is no chance that the situation will change in the foreseeable future, this constitutes a ground under subsection 13(7) of the Adoption of Children Law. Admittedly, the court must be particularly careful when it determines that the objective situation of a parent causes parental incapacity, but with regard to the language and the purpose of the statute, the main point is the result and not the cause: the parent is incapable of properly caring for the child.

I believe that, in the case before us, there is sufficient evidence before the court that the appellant is incapable of properly caring for his child. It may perhaps be said that he is incapable of this because of his behaviour in the past, and in any event he is incapable of this because of his situation today, and also because of his situation in the foreseeable future. It is clear that in this special situation there is no reason to expect that reasonable economic and welfare assistance, of the kind normally provided by the welfare authorities, will change the situation, from the viewpoint of the anticipated harm to the child. Such help is irrelevant to the danger to which the child would be exposed, were he to grow up in the appellant’s home.

The court-appointed expert explained succinctly, and there is no need to repeat the quotes from his opinion, that as a result of the situation in which the appellant found himself, and in which he finds himself, he foresees disaster, complications and many difficulties for the child. The expert says that if the child grows up with the appellant, he will be exposed to risks in terms of his mental health. These risks derive from the home in which he would be raised, and particularly from the difficulties inherent in the situation of the father’s wife, who is supposed to raise him, and the environment in which he would live, in the shadow of the ‘sensational story’. As the expert says, ‘underneath the surface there lies a strong possibility of complications, difficulties and pathology for the child and how he is to be brought up, if he is indeed brought up by R and A.’

The duty of a parent towards his child includes, as Vice-President S. Levin explains (in paragraph 3), also the duty to provide the psychological and emotional needs of the child. The appellant, however, is incapable, because of his behaviour in the past and his situation in the present, of properly providing for these needs. Try as he may, he is incapable, because of his situation — both now and in the foreseeable future — of ensuring that his child can live and develop properly, like children who do not have, in the words of the expert, such a scar, which has come about because of the appellant’s behaviour. On the contrary, if the child grows up with the appellant it is foreseeable, on the evidence, that the appellant will involuntarily warp the child’s psyche and cripple his emotions. The child is likely to grow up with an incurable emotional disability, all of which as a direct result of the situation in which the appellant finds himself because of his behaviour. This led to the expert’s conclusion:

‘Therefore I recommend that the baby not be given to his biological father, despite his strong desire to raise him, because of the many serious potential dangers arising from this; these should certainly not be imposed on a newborn child whose future — which will not be easy — is still before him, and we should search for the least dangerous and most promising option for his healthy development: there is no alternative other than closed and anonymous adoption.’

If so, there is a basis for holding that the child is adoptable under section 13(7) of the Adoption of Children Law, and there is no need or justification to search for any other ground beyond this section.

In cases where all the judges agree on the same outcome, as in the case before us, the method is the message. The court can, and sometimes should, follow the path of judicial legislation, entirely divorced from the language of the statute, and perhaps even contrary to the language of the statute, in order to achieve the purpose of the statute or to protect basic values. But this is a method for emergency cases, which involve dangers to the legal system and the administration of justice. It is therefore preferable, if at all possible, for the court to take the safe, paved road of interpretation that arises from the language of the statute. In the case before us, it is possible and desirable to follow this path.

Therefore I do not share the view of Vice-President Levin or Justice Cheshin. Even were one were to say, and I do not say this, that there remains a doubt as to whether, in the circumstances of the case, incapacity has been proved within the framework of section 13(7) of the Adoption of Children Law, I still prefer to rule under the shadow of that doubt, rather than to break open the framework to create a new ground which undoubtedly falls outside the scope of section 13. This is especially true in view of the fear that other grounds will try, in the name of basic principles or public policy, to enter through that breach. I am therefore in agreement with the opinion of Justice Dorner.

 

 

Justice G. Bach

1.             I agree with the opinion of my colleagues that the appeal should be denied and that the decision of the Jerusalem District Court, declaring the child of the appellant adoptable, should be confirmed.

2.             The different approaches in the opinions of my four colleagues concern the ground on which it is possible to base the said decision under the law. My colleagues, Justices Dorner and Zamir, are of the opinion that the court’s decision to declare the child adoptable can be based on section 13(7) of the Adoption of Children Law, whereas my colleagues Vice-President Levin and Justice Cheshin are of the opinion that one cannot make such a declaration on the basis of any one of the grounds listed in section 13 of the Adoption of Children Law, and that it is therefore necessary to add, by means of judicial legislation, to the grounds for adoption in the statute an additional ground that suits the special situation outlined in this case.

3.             With regard to the issue in dispute, I agree with the opinion of my colleagues Justices Dorner and Zamir. I also accept the reasoning set out in their opinions and would like to add to this several remarks of my own.

Both the Vice-President and Justice Cheshin point out that one cannot declare a child adoptable unless his mother and father consent thereto, or unless one of the grounds listed in section 13 of the Adoption of Children Law, which prima facie constitutes a closed list, is fulfilled. But they argue that none of these grounds exist in this case. The father, the appellant, does not consent to the adoption, and in their opinion none of the grounds set out in section 13 are applicable.

I agree that this is the case with regard to each of the grounds in section 13 of the Adoption of Children Law, with the exception of the ground set out in section 13(7) of the Law. I especially agree with my colleagues that there is no basis for applying to the case before us the ground in section 13(8) of the Law, on which, inter alia, the District Court relied, and which refers to cases where ‘the refusal to give the consent derives from an immoral motive or is for an unlawful purpose’. It is also my opinion that the immorality or the illegality for the purpose of this section must relate to the refusal to give the consent to adoption, and not to the circumstances which led to the birth of the child.

4.             We must therefore focus on the question whether facts have been proved that justify the determination of the District Court that there is a ground for declaring the child adoptable under section 13(7) of the Law. In order to facilitate comprehension of the matter, let us quote once more the language of this subsection:

‘The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation.’

The last part of the subsection is irrelevant for our purposes; so the question remains whether it is possible to determine that the appellant is a parent who ‘is incapable of looking after the child properly because of his behaviour or situation…’.

My colleague, Justice Cheshin, quotes extensively in his opinion from the opinion of the expert psychologist, Mr Rami Bar-Giora. He notes that Mr Bar-Giora points out serious difficulties that the child will face if he is raised in the appellant’s home, but he says that ‘we have heard nothing about “incapacity” or about difficulties that clearly amount to “incapacity”.’ But my colleague adds: ‘Indeed, even had the expert spoken expressly of “incapacity” (and he hints of this in his oral testimony), the mere use of the word would not be decisive’.

Before we try to draw conclusions from the expert’s opinion, let us first examine what that expert actually said in his testimony before the court, evidence that in my opinion is of no less weight that what is stated in the initial written opinion of that witness.

Inter alia the expert testified as follows:

‘… I say once again, the most serious matter is that the raising of this baby by the family of Y poses a dilemma, not a dilemma — a trap. This is to say, difficulty on all sides. If they tell him the truth, it is very complex, if they hide the truth from him, it is very dangerous. In any case, this casts a shadow on the parenting…’

And when he was asked directly in cross-examination:

‘I understand that you do not have anything to say against the parental capacity of Mr Y, unconditionally, in principle. You wrote nothing about this, and I believe that this is the case.’

The witness replied:

‘I wish to point out and I said to Mr Y and his wife… I have no problem at all with the parental capacity of the two of them; all that I wrote was written with regard to the possible parenting of this baby with his special circumstances.’

And further on the expert refers to another case that he treated, and explains:

‘Of all the dozens of my opinions about parental capacity, one case sticks in my memory. This case was about a father and mother with five children where two were literally outcasts within the family, and with regard to one of them I was asked to write an opinion. I encountered a family that had raised, with relative success, the children that were in their home, yet at the same time there was obvious, blatant and clear incapacity with regard to two special children, and since then this case has become the model and classic example that parental capacity is examined with regard to a specific child, and only in rare cases can it be said that it does not exist a priori; for this a person needs to be retarded, crazy. Then it is possible to say that it is not worthwhile trying one way or the other.’

In my view, it is clear from the expert’s opinion, together with his testimony in Court, that in his view the appellant lacks parental capacity with respect to the specific child in this case. This does not mean that the appellant is incapable of being a parent at all. There are no indications of this. But because of the difficulties that the child can be expected to encounter if he is raised in the appellant’s home — difficulties that the appellant cannot prevent or neutralize — he lacks parental capacity with regard to this child. This position seems to me reasonable and persuasive, and I see no reason not to adopt it.

5.             My colleague Justice Zamir mentioned in his opinion the decision in CA 522/87 A v. Attorney-General [33], at p. 440, where I wrote that, with respect to section 13(7) of the Adoption of Children Law, ‘the words “or his situation” refer to all aspects of the objective circumstances’.

To elucidate this position of mine, we should mention the facts to which that appeal referred. The case concerned a married couple, the parents of three minor children, who had been declared adoptable. It was proved that the mother was a mentally-ill person who endangered her children’s welfare, and it was universally agreed that she was incapable of raising the children. It transpired that the father, on his own, did not lack parental capacity, but since he believed that his wife would recover and was not prepared to leave her, and since it was inconceivable that the children’s health should be endangered by leaving them in their parents’ home, it was decided that they should be declared adoptable vis-à-vis both parents, despite the fact that the father, on his own, could have had parental capacity. This shows that a person’s parental capacity in a specific situation is not determined merely on the basis of the general capabilities of that person and his ability to function in principle as a father, but by taking into consideration all the facts and circumstances in which he finds himself, which constitute ‘his situation’, within the meaning of section 13(7) of the Adoption of Children Law.

In our case, because of his conduct, the appellant finds himself in a situation in which he does not have the capacity to raise the child under discussion, in conditions in which the child is entitled to be raised, namely without being exposed to serious psychological risks and traps as described by the expert psychologist.

I therefore see no difficulty, nor even any artificiality, in applying the provisions of section 13(7) of the Adoption of Children Law to this case.

6.             My colleague, Vice-President Levin, wrote in his opinion that we must read into section 13 of the Law an additional rule, which provides that a parent may not oppose a declaration of a child as adoptable if this conflicts with reasons of public policy relating to the acts that led to the birth of the child. He adds that this possibility did not occur to the legislator, but that, had he been asked, he would certainly have provided that such a rule should be applied in order to prevent the child being given to the appellant.

To this I must say that, if indeed we may assume that the legislator would have been prepared to include an additional rule in section 13 that is not included in it in its current wording, then it certainly can be assumed, a fortiori, that had he been asked, the legislator would have agreed to a construction of the existing section 13(7) that parental incapacity because of a parent’s ‘behaviour or situation’ may be applied to the facts in cases like the one before us.

I too do not wish to rule out the possibility that, in rare and exceptional cases, the court will find it necessary to add to the specific provisions of a statute a provision not included therein, by means of a kind of implied construction, in order to prevent results that are inconceivable or that make a mockery of the law or that are manifestly contrary to public policy. But in this case I do not think there is any need to consider resorting to such methods.

Therefore it is my opinion that the decision of the District Court declaring the child adoptable on the ground included in section 13(7) of the Adoption of Children Law should be confirmed.

 

 

Appeal denied.

20 Tishrei 5757.

3 October 1996.

 

 

The Supreme Court Sitting as the High Court of Justice

 

 [February  29, 2004; March 11, 2004; March 17, 2004; March 31, 2004; April 16, 2004; April 21, 2004; May 2, 2004 ]

 

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

 

Petition for an Order Nisi.

For petitioners—Mohammed Dahla

For respondents—Anar Helman, Yuval Roitman

 

JUDGMENT

President A. Barak

 

The Commander of the IDF Forces in Judea and Samaria issued orders to take possession of plots of land in the area of Judea and Samaria. The purpose of the seizure was to erect a separation fence on the land. The question before us is whether the orders and the fence are legal.

 

Background

 

1.     Since 1967, Israel has been holding the areas of Judea and Samaria [hereinafter – the area] in belligerent occupation. In 1993 Israel began a political process with the PLO, and signed a number of agreements transferring control over parts of the area to the Palestinian Authority. Israel and the PLO continued political negotiations in an attempt to solve the remaining problems. The negotiations, whose final stages took place at Camp David in Maryland, USA, failed in July 2000.

 

From respondents’ affidavit in answer to order nisi we learned that, a short time after the failure of the Camp David talks, the Israeli-Palestinian conflict reached new heights of violence. In September 2000, the Palestinian side began a campaign of terror against Israel and Israelis. Terror attacks take place both in the area and in Israel. They are directed against citizens and soldiers, men and women, elderly and infants, regular citizens and public figures. Terror attacks are carried out everywhere: in public transportation, in shopping centers and markets, in coffee houses and in restaurants. Terror organizations use gunfire attacks, suicide attacks, mortar fire, Katyusha rocket fire, and car bombs.  From September 2000 until the beginning of April 2004, more than 780 attacks were carried out within Israel. During the same period, more than 8200 attacks were carried out in the area.

 

The armed conflict claimed (as of April 2004) the lives of 900 Israeli citizens and residents. More than 6000 were injured, some with serious wounds that have left them severely handicapped. The armed conflict has left many dead and wounded on the Palestinian side as well. Bereavement and pain wash over us.

 

In HCJ 7015/02 Ajuri v. IDF Commander, at 358, I described the security situation:

 

Israel’s fight is complex. Together with other means, the Palestinians use guided human bombs. These suicide bombers reach every place that Israelis can be found (within the boundaries of the State of Israel and in the Jewish communities in Judea and Samaria and the Gaza Strip). They sew destruction and spill blood in the cities and towns. The forces fighting against Israel are terrorists: they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including inside holy sites; they are supported by part of the civilian population, and by their families and relatives.

 

2. These terror acts have caused Israel to take security precautions on several levels. The government, for example, decided to carry out various military operations, such as operation “Defensive Wall” (March 2002) and operation “Determined Path” (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent terror attacks. See HCJ 3239/02 Marab v. IDF Commander in the West Bank, at 355; HCJ 3278/02 Center for Defense of the Individual v. IDF Commander, at 389.  These combat operations – which are not regular police operations, but embody all the characteristics of armed conflict – did not provide a sufficient answer to the immediate need to stop the terror. The Ministers’ Committee on National Security considered a list of steps intended to prevent additional terror acts and to deter potential terrorists from participating in such acts. See Ajuri, at 359. Despite all these measures, the terror did not come to an end.  The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the separation fence.

 

The Decision to Construct the Separation Fence

 

3.    The Ministers’ Committee for National Security reached a decision (on April 14, 2002) regarding deployment in the “Seamline Area” between Israel and the area. See HCJ 8532/02 Ibraheem v. Commander of the IDF Forces in the West Bank. The purpose behind the decision was “to improve and strengthen operational capability in the framework of fighting terror, and to prevent the penetration of terrorists from the area of Judea and Samaria into Israel.” The IDF and the police were given the task of preventing the passage of Palestinians into the State of Israel. As a temporary solution, it was decided to erect an obstacle in the three regions found to be most vulnerable to the passage of terrorists into the Israel: the Umm El-Fahm region and the villages divided between Israel and area (Baka and Barta’a); the Qalqilya-Tulkarm region; and the Greater Jerusalem region. It was further decided to create a team of Ministers, headed by the Prime Minister, which would examine long-term solutions to prevent the infiltration of Palestinians, including terrorists, into Israel.

 

4. The Government of Israel held deliberations on the “Seamline Area” program (June 23, 2002).  The armed services presented their proposal to erect an obstacle on the “Seamline.” The government approved stage 1 of the project, which provides a solution to the operational problem of terrorist infiltration into the north of the country, the center of the country and the Jerusalem area. The obstacle that was approved begins in the area of the Salam village, adjacent to the Meggido junction, and continues until the trans-Samaria road. An additional obstacle in the Jerusalem area was also approved.  The entire obstacle, as approved, is 116 km long.  The government decision provided:

 

(3) In the framework of stage 1 – approval of the security fences and obstacles in the “Seamline Area” and in Greater Jerusalem, for the purpose of preventing the penetration of terrorists from the area of Judea and Samaria into Israel.

 

(4) The fence, like the other obstacles, is a security measure. Its construction does not mark a national border or any other border.

           

          ….         

 

(6) The precise and final location of the fence will be established by the Prime Minister and the Minister of Defense … the final location will be presented before the Ministers’ Committee on National Security or before the government.

 

5. The Ministers’ Committee on National Security approved (August 14, 2002) the final location of the obstacle.  The Prime Minister and the Minister of Defense approved (December 2002) stage 2 of the obstacle from Salam village east to the Jordan River, 60 km long, and an extension, a few kilometers long, from Mount Avner (adjacent to El-Mouteelah village) in the Southern Gilboa range to the village of Tayseer.

 

6. The Ministers’ Committee on National Security decided (on September 5, 2003) to construct stage 3 of the obstacle in the Greater Jerusalem area (except in the Ma’ale Adumim area). The length of this obstacle is 64 km. The government, on October 1, 2003, set out its decision regarding stages 3 and 4 of the obstacle:

 

1. The Government reiterates its decision regarding the importance of the “Seamline Area” and emphasizes the security need for the obstacle in the “Seamline Area” and in “Greater Jerusalem.”

 

2. Therefore:

 

1. We approve the construction of the obstacle for the prevention of terror activities according to the stages and location as presented today before us by the armed forces (the map of the stages and location of the fence is on file in the government secretariat).

 

2. The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the “Seamline Area,” is a security measure for the prevention of terror attacks and does not mark a national border or any other border.

 

3. Local changes, either of the location of the obstacle or of its implementation, will be brought before the Minister of Defense and the Prime Minister for approval.

 

4. The Prime Minister, the Minister of Defense, and the Finance Minister shall calculate the budget necessary for implementation of this decision as well as its financial schedule. The computation shall be brought before the government for approval.

 

5. In this framework, additional immediate security steps for the defense of Israelis in Judea and Samaria during the period of construction of the obstacle in the “Seamline Area” shall be agreed upon.

 

6. During the planning, every effort shall be made to minimize, to the extent possible, the disturbances to the daily lives of the Palestinians due to the construction of the obstacle.

 

The location of this fence, which passes through areas west of Jerusalem, stands at the heart of the dispute between the parties.

 

       The Separation Fence

      

7. The “Seamline” obstacle is composed of several components. In its center stands a “smart” fence. The purpose of the fence is to alert the forces deployed along its length of any attempt at infiltration. On the fence’s external side lies an anti-vehicle obstacle, composed of a trench or another means, intended to prevent vehicles from breaking through the fence by slamming up against it. There is an additional delaying fence. Near the fence a service road is paved. On the internal side of the electronic fence, there are a number of roads: a dirt road (for the purpose of discovering the tracks of those who pass the fence), a patrol road, and a road for armored vehicles, as well as an additional fence. The average width of the obstacle, in its optimal form, is 50 – 70 meters.  Due to constraints, a narrower obstacle, which includes only the components supporting the electronic fence, will be constructed in specific areas.  In certain cases the obstacle can reach a width of 100 meters, due to topographical conditions. In the area relevant to this petition, the width of the obstacle will not exceed 35 meters, except in places where a wider obstacle is necessary for topographical reasons.  In the area relevant to this petition, the fence is not being replaced by a concrete wall. Efforts are being made to minimize the width of the area of which possession will be taken de facto. Various means to help prevent infiltration will be erected along the length of the obstacle. The IDF and the border police will patrol the separation fence, and will be called to locations of infiltration, in order to frustrate the infiltration and to pursue those who succeed in crossing the security fence.  Hereinafter, we will refer to the entire obstacle on the “Seamline” as “the separation fence.”

 

       The Seizure Proceedings

 

8. Parts of the separation fence are being erected on land which is not privately owned.  Other parts are being erected on private land. In such circumstances – and in light of the security necessities – an order of seizure is issued by the Commander of the IDF Forces in the area of Judea and Samaria (respondent 2). Pursuant to standard procedure, every land owner whose land is seized will receive compensation for the use of his land. After the order of seizure is signed, it is brought to the attention of the public, and the proper liaison body of the Palestinian Authority is contacted. An announcement is relayed to the residents, and each interested party is invited to participate in a survey of the area affected by the order of seizure, in order to present the planned location of the fence.  A few days after the order is issued, a survey is taken of the area, with the participation of the landowners, in order to point out the land which is about to be seized.

 

After the survey, a one week leave is granted to the landowners, so that they may submit an appeal to the military commander. The substance of the appeals is examined.  Where it is possible, an attempt is made to reach understandings with the landowners. If the appeal is denied, leave of one additional week is given to the landowner, so that he may petition the High Court of Justice.

 

The Petition

 

9. The petition, as originally worded, attacked the orders of seizure regarding lands in the villages of Beit Sourik, Bidu, El Kabiba, Katane, Beit A’anan, Beit Likia, Beit Ajaza and Beit Daku.  These lands are adjacent to the towns of Mevo Choron, Har Adar, Mevasseret Zion, and the Jerusalem neighborhoods of Ramot and Giv’at Zeev, which are located west and northwest of Jerusalem.  Petitioners are the landowners and the village councils affected by the orders of seizure. They argue that the orders of seizure are illegal. As such, they should be voided or the location of the separation fence should be changed. The injury to petitioners, they argue, is severe and unbearable. Over 42,000 dunams of their lands are affected. The obstacle itself passes over 4,850 dunams, and will separate between petitioners and more than 37,000 dunams, 26,500 of which are agricultural lands that have been cultivated for many generations. Access to these agricultural lands will become difficult and even impossible.  Petitioners’ ability to go from place to place will depend on a bureaucratic permit regime which is labyrinthine, complex, and burdensome. Use of local water wells will not be possible.  As such, access to water for crops will be hindered. Shepherding, which depends on access to these wells, will be made difficult. Tens of thousands of olive and fruit trees will be uprooted.  The fence will separate villages from tens of thousands of additional trees. The livelihood of many hundreds of Palestinian families, based on agriculture, will be critically injured.  Moreover, the separation fence injures not only landowners to whom the orders of seizure apply; the lives of 35,000 village residents will be disrupted. The separation fence will harm the villages’ ability to develop and expand. The access roads to the urban centers of Ramallah and Bir Naballa will be blocked off.  Access to medical and other services in East Jerusalem and in other places will become impossible. Ambulances will encounter difficulty in providing emergency services to residents. Children’s access to schools in the urban centers, and of students to universities, will be impaired. Petitioners argue that these injuries cannot be justified.

 

10. Petitioners’ argument is that the orders are illegal in light of Israeli administrative law, and in light of the principles of public international law which apply to the dispute before us. First, petitioners claim that respondent lacks the authority to issue the orders of seizure. Were the route of the separation fence to pass along Israel’s border, they would have no complaint.  However, this is not the case. The route of the separation fence, as per the orders of seizure, passes through areas of Judea and Samaria.  According to their argument, these orders alter the borders of the West Bank with no express legal authority. It is claimed that the separation fence annexes areas to Israel in violation of international law. The separation fence serves the needs of the occupying power and not the needs of the occupied area.  The objective of the fence is to prevent the infiltration of terrorists into Israel; as such, the fence is not intended to serve the interests of the local population in the occupied area, or the needs of the occupying power in the occupied area. Moreover, military necessity does not require construction of the separation fence along the planned route. The security arguments guiding respondents disguise the real objective: the annexation of areas to Israel. As such, there is no legal basis for the construction of the fence, and the orders of seizure which were intended to make it possible are illegal. Second, petitioners argue that the procedure for the determination of the route of the separation fence was illegal. The orders were not published and were not brought to the knowledge of most of the affected landowners; petitioners learned of them by chance, and they were granted extensions of only a few days for the submission of appeals. Thus, they were not allowed to participate in the determination of the route of the separation fence, and their arguments were not heard.

 

11.  Third, the separation fence violates many fundamental rights of the local inhabitants, illegally and without authority.  Their right to property is violated by the very taking of possession of the lands and by the prevention of access to their lands. In addition, their freedom of movement is impeded. Their livelihoods are hurt and their freedom of occupation is restricted. Beyond the difficulties in working the land, the fence will make the trade of farm produce difficult. The fence detracts from the educational opportunities of village children, and throws local family and community life into disarray.  Freedom of religion is violated, as access to holy places is prevented.  Nature and landscape features are defaced.  Petitioners argue that these violations are disproportionate and are not justified under the circumstances. The separation fence route reflects collective punishment, prohibited by international law. Thus, respondent neglects the obligation, set upon his shoulders by international law, to make normal and proper life possible for the inhabitants of Judea and Samaria.  The security considerations guiding him cannot, they claim, justify such severe injury to the local inhabitants. This injury does not fulfill the requirements of proportionality.  According to their argument, despite the language of the orders of seizure, it is clear that the fence is not of a temporary character, and the critical wound it inflicts upon the local population far outweighs its benefits.

 

The Response to the Petition

 

12.  Respondents, in their first response, argued that the orders of seizure and the route through which the separation fence passes are legal. The separation fence is a project of utmost national importance.  Israel is in the midst of actual combat against a wave of terror, supported by the Palestinian population and leadership. At issue are the lives of the citizens and residents of Israel, who are threatened by terrorists who infiltrate into the territory of Israel. At issue are the lives of Israeli citizens residing in the area. The construction of the separation fence system must be completed with all possible speed. The separation fence has already proved its efficacy in areas where it has been erected. It is urgent that it also be erected in the region of petitioners’ villages. Respondents claim that a number of terror attacks against Jerusalem and against route no. 443, which connects Jerusalem and the city of Modi’in, have originated in this area. The central consideration in choosing the route of the separation fence was the operational-security consideration. The purpose of the fence is to prevent the uncontrolled passage of residents of the area into Israel and into Israeli towns located in the areas. The separation fence is also intended to prevent the smuggling of arms, and to prevent the infiltration of Palestinians, which will likely to lead to the establishment of terror cells in Israel and to new recruits for existing cells. Additionally, the forces acting along the obstacle, and Israeli towns on both sides of it, must be protected. As dictated by security considerations, the area of the separation fence must have topographic command of its surroundings. This is in order to allow surveillance and to prevent attacks upon the forces guarding it.  To the extent possible, a winding route must be avoided.  In addition, a “security zone” is required to provide warning of possible terrorist infiltration into Israel. Thus, in appropriate places, in order to make pursuit possible in the event of infiltration, the fence must pass through the area. An additional security consideration is the fact that, due to construction of the obstacle, attempted attacks will be concentrated on Israeli towns adjacent to the fence, which also must be protected.

 

13.  Respondents explain that, in planning the route of the separation fence, great weight was given to the interests of the residents of the area, in order to minimize, to the extent possible, the injury to them. Certain segments of the fence are brought before the State Attorney for prior examination and, if necessary, before the Attorney-General as well.  An effort is being made to lay the obstacle along property that is not privately owned or agriculturally cultivated; consideration is given to the existing planning schemes of Palestinian and Israeli towns; an effort is being made to refrain from cutting lands off from their owners.  In the event of such a cutoff, agricultural gateways will allow farmers access to their lands. New roads will be paved which will provide for the needs of the residents.  In cases where damage cannot be avoided, landowners will be compensated for the use of their seized lands. Efforts will be made to transfer agricultural crops instead of cutting them down. Prior to seizure of the land, the inhabitants will be granted the opportunity to appeal. Respondents assert that they are willing to change the route in order to minimize the damage.  Respondents declared, in addition, that they intend to erect permanent checkpoints east of certain villages, which will be open 24 hours a day, every day of the year, and which will allow the preservation of the fabric of life in the area.  It has also been decided to improve the road system between the villages involved in this petition, in order to tighten the bonds between them, and between them and Ramallah. Likewise, the possibility of paving a road to enable free and speedy passage from the villages to Ramallah is being examined.  All these considerations were taken into account in the determination of the route. The appeals of local inhabitants injured by the route are currently being heard. All this, claim respondents, amounts to a proper balance between consideration for the local inhabitants and between the need to protect the lives of Israeli citizens, residents, and soldiers.

 

14.  Respondents claim that the process of seizure was legal.  The seizure was brought to the knowledge of petitioners, and they were given the opportunity to participate in a survey and to submit appeals.  The contractors responsible for building the obstacle are instructed to move (as opposed to cutting down) trees wherever possible.  This is the current practice regarding olive trees. Some buildings, in cooperation with landowners to the extent possible, are taken down and transferred to agreed locations. Respondents argue that the inhabitants did not always take advantage of the right to have their arguments heard.

 

15. Respondent’s position is that the orders of seizure are legal.  The power to seize land for the obstacle is a consequence of the natural right of the State of Israel to defend herself against threats from outside her borders. Likewise, security officials have the power to seize lands for combat purposes, and by the laws of belligerent occupation.  Respondents do not deny the need to be considerate of the injury to the local population and to keep that injury proportionate; their claim is that they fulfill these obligations.  Respondents deny the severity of the injury claimed by petitioners.  The extent of the areas to be seized for the building of the fence, the injury to agricultural areas, and the injury to trees and groves, are lesser – by far – than claimed.  All the villages are connected to water systems and, as such, damage to wells cannot prevent the supply of water for agricultural and other purposes. The marketing of agricultural produce will be possible even after the construction of the fence.  In each village there is a medical clinic, and there is a central clinic in Bidu. A few archeological sites will find themselves beyond the fence, but these sites are neglected and not regularly visited. The educational needs of the local population will also be taken into account. Respondents also note that, in places where the separation fence causes injury to the local population, efforts are being made to minimize that injury.  In light of all this, respondents argue that the petitions should be denied.   

 

The Hearing of the Petition

 

16.  Oral arguments were spread out over a number of hearings.  During this time, the parties modified the formulation of their arguments. In light of these modifications, respondent was willing to allow changes in part of the route of the separation fence.  In certain cases the route was changed de facto. Thus, for example, it was changed next to the town of Har Adar, and next to the village of Beit Sourik.  This Court (President A. Barak, Vice-President (ret.) T. Or, and Vice-President E. Mazza) heard the petition (on February 29, 2004). The remainder of the hearing was postponed for a week in order to allow the sides to take full advantage of their right to have their arguments heard and to attempt to reach a compromise. We ordered that no work on the separation fence in the area of the petition be done until the next hearing.

 

The next hearing of the petition was on March 17, 2004. Petitioners submitted a motion to file additional documents, the most important of which was an affidavit prepared by members of the Council for Peace and Security, which is a registered society of Israelis with a background in security, including high ranking reserve officers, including Major General (res.) Danny Rothchild, who serves as president of the Council, Major General (res.) Avraham Adan (Bren), Commissioner (emeritus) Shaul Giv’oli, who serves as the general manager of the Council, and Colonel (res.) Yuval Dvir. The affidavit was signed by A. Adan, S. Giv’oli and Y. Dvir.  The society, which sees itself as nonpartisan, was, it argued, among the first to suggest a separation fence as a solution to Israel’s security needs.  The affidavit included detailed and comprehensive comments regarding various segments of this route, and raised reservations about them from a security perspective. The claims in the affidavit were serious and grave.  After reading them, we requested (on March 17, 2004) the comments of Respondent, The Commander of IDF Forces in the area of Judea and Samaria, Lieutenant-General Moshe Kaplinsky.

 

17.  This Court (President A. Barak, Vice-President E. Mazza, and Justice M. Cheshin) resumed the hearing of the petition (on March 31, 2004).  Just prior to reconvening, we granted (on March 23, 2004) petitioners’ motion to amend their petition such that it would include additional orders issued by respondent: Tav/110/03  (concerning the area located north of the Beit Daku village in the Giv’at Ze’ev area); Tav/104/03 and Tav/105/03 (concerning areas located southeast of the town of Maccabim and south of the village of Beit Lakia). After we heard (on March 31, 2004) the parties’ arguments, we decided to issue an order nisi, to the extent relevant to the villages and petitioners, and to narrow the application of the temporary injunction, such that it would not apply to the segment between Beit Ajaza and New Giv’on, and the segment between the Beit Chanan riverbed and the ascent to Jebel Muktam. We further decided to narrow the injunction, such that respondent would refrain from making irrevocable changes in the segment north of Har Adar, and in the segment between the villages of A-Tira and Beit Daku.  We have noted respondents’ announcement that if it turns out that the building of the obstacle at these locations was illegal, proper compensation will be given to all who suffered injury. See our order of March 31, 2004. We continued to hear the arguments of the parties (on April 16, April 21, and May 2, 2004).  Petitioners submitted an alternate route for construction of the separation fence.  Additional affidavits were submitted by the Council for Peace and Security and by respondent.  An opinion paper on the ecological effects of the route of the fence was submitted for our review.  Pursuant to our request, detailed relief models representing the topography of the area through which the obstacle passes were submitted.  The relief models showed the route of the obstacle, as set out by respondent, as well as the alternate routes proposed by petitioners. In addition, a detailed aerial photograph of these routes was submitted.

 

18.  Members of the Council for Peace and Security moved to be joined as amici curiae.  Pursuant to the stipulation of the parties, an additional affidavit (of April 15, 2004) submitted (by Major General (res.) D. Rothchild who serves as the president of the council, as well as by A. Adan, S. Giv’oli and Y. Dvir) was joined to the petition, without ruling that this position was identical to petitioners’.  In the opinion of the council members, the separation fence must achieve three principle objectives: it must serve as an obstacle to prevent, or at least delay, the entry of terrorists into Israel; it must grant warning to the armed forces in the event of an infiltration; and it must allow control, repair, and monitoring by the mobile forces posted along it. In general, the fence must be far from the houses of the Palestinian villages, not close to them. If the fence is close to villages, it is easier to attack forces patrolling it.  Building the fence in the manner set out by respondent will require the building of passages and gateways, which will engender friction; the injury to the local population and their bitterness will increase the danger to security.  Such a route will make it difficult to distinguish between terrorists and innocent inhabitants. Thus, the separation fence must be distanced from the Palestinian homes, and transferred, accordingly, to the border of the area of Judea and Samaria.  In their opinion, the argument that the fence must be built at a distance from Israeli towns in order to provide response time in case of infiltration, can be overcome by the reinforcement of the obstacle near Israeli towns.  Distancing the planned route from Israeli towns in order to seize distant hilltops with topographical control is unnecessary, and has serious consequences for the length of the separation fence, its functionality, and for attacks on it.  In an additional affidavit (from April 18, 2004), members of The Council for Peace and Security stated that the desire of the commander of the area to prevent direct flat-trajectory fire upon the separation fence causes damage from a security perspective.  Due to this desire, the fence passes through areas that, though they have topographical control, are superfluous, unnecessarily injuring the local population and increasing friction with it, all without preventing fire upon the fence.

 

19.  Petitioners, pointing to the affidavits of the Council for Peace and Security, argue that the route of the separation fence is disproportionate.  It does not serve the security objectives of Israel, since establishing the route adjacent to the houses of the Palestinians will endanger the state and her soldiers who are patrolling along the fence, as well as increasing the general danger to Israel’s security. In addition, such a route is not the least injurious means, since it is possible to move the route farther away from petitioners’ villages and closer to Israel.  It will be possible to overcome the concern about infiltration by reinforcing the fence and its accompanying obstacles.

 

20.  Respondent recognizes the security and military experience of those who signed the affidavit.  However, he emphasizes that the responsibility for protecting the residents of Israel from security threats remains on his shoulders and on those of the security officials.  The disagreement is between experts on security.  Regarding such a disagreement, the opinion of the expert who is also responsible for security bears the greater weight.  Respondent accepts that the border between Israel and Judea and Samaria must be taken into consideration when establishing the route of the separation fence, in order to minimize injury to residents of the area and to the fabric of their lives.  He argues, however, that the border is a political border and not a security border.  The security objective of the fence is not only to separate Israel from the residents of the area of Judea and Samaria, it must also ensure a security zone to allow the pursuit of terrorists who cross the separation fence before they enter Israel. The fence route must prevent direct fire by the Palestinians, it must protect the soldiers guarding the fence, and must also take topographical considerations into account. In light of all this, it is proper, under appropriate circumstances, to move the route of the separation fence within the areas of Judea and Samaria.  The military commander concedes that moving the separation fence proximate to houses of Palestinians is likely to cause difficulties, but this is only one of the considerations which must be taken into account.  Reinforcement of the fence adjacent to Israeli towns does not provide a solution to the danger of shooting attacks, and does not prevent infiltration into them.  Likewise, such a step does not take into consideration the engineering issues of moving the route of the fence.  Regarding the route of the fence itself, respondent notes that, after examining the material before him, he is willing to change part of the route.  This is especially so regarding the route adjacent to the town of Har Adar and east of it, adjacent to the villages of Beit Sourik and Bidu.  The remainder of the route proposed by petitioners does not provide an appropriate solution to the security needs that the fence is intended to provide.

 

21. Parties presented arguments regarding the environmental damage of the separation fence. Petitioners submitted, for our review, expert opinion papers (dated April 15, 2004), which warn of the ecological damage that will be caused by the separation fence. The separation fence route will damage animal habitats and will separate animal populations from vegetation, damaging the ecosystem in the area.  The longer and wider the route of the fence, the more severe the damage. Therefore, it is important to attempt to shorten the route of the fence, and to avoid unnecessary curves. The building of passageways for small animals into the fence, such as pipes of 20-30 cm. diameter, should be considered.  The fence will also mar virgin landscape that has remained untouched for millennia.  Respondents replied with an opinion paper prepared by an expert of the Nature and Parks Authority. It appears, from his testimony, that there will indeed be ecological damage, but the damage will be along any possible route of the fence.  It would have been appropriate to maintain passageways in the separation fence for small animals, but that proposal was rejected by the security agencies and is, in any case, irrelevant to the question of the route.  From the testimony it also appears that representatives of the Nature and Parks Agency are involved in the planning of the fence route, and efforts are being made to minimize ecological damage.

 

22. A number of residents of Mevasseret Zion, which is adjacent to the Beit Sourik village, requested to join as petitioners in this petition. They claim that the fence route should be immediately adjacent to the green line, in order to allow residents of the Beit Sourik village to work their land.  In addition, they claim that the gates which will allow the passage of farmers are inefficient, that they will obstruct access to the fields, and that they will violate the farmer’s dignity.  Furthermore, they point out the decline of relations with the Palestinian population in the area which, as a consequence of the desire to construct the separation fence on its land, has turned from a tranquil population into a hostile one. On the opposing side, Mr. Efraim Halevy requested to join as a respondent in the petition.  He argues that moving the route of the fence adjacent to the Green Line will endanger the residents of Mevasseret Zion. It will bring the route closer to the houses and schools in the community.  He also points out the terrorist activity which has taken place in the past in the Beit Sourik area. Thus, the alternate route proposed by petitioners should be rejected.  He claims that this position reflects the opinions of many residents of Mevasseret Zion. After reading the motions, we decided to accept them, and we considered the arguments they presented.

 

       The Normative Framework

 

23. The general point of departure of all parties – which is also our point of departure – is that Israel holds the area in belligerent occupation (occupatio bellica). See HCJ 619/78 “El Tal’ia” Weekly v. Minister of Defense; HCJ 69/81 Abu Ita v. Commander of the Area of Judea and Samaria; HCJ 606/78 Ayoob v. Minister of Defense; HCJ 393/82 Jam'iat Ascan Elma’almoon Eltha’aooniah Elmahduda Elmaoolieh v. Commander of the IDF Forces in the Area of Judea and Samaria. In the areas relevant to this petition, military administration, headed by the military commander, continues to apply. Compare HCJ 2717/96 Wafa v. Minister of Defense (application of the military administration in “Area C”).  The authority of the military commander flows from the provisions of public international law regarding belligerent occupation. These rules are established principally in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 [hereinafter – the Hague Regulations].  These regulations reflect customary international law.  The military commander’s authority is also anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949. [hereinafter – the Fourth Geneva Convention]. The question of the application of the Fourth Geneva Convention has come up  more than once in this Court.  See HCJ 390/79 Duikat v. Government of Israel; HCJ 61/80 Haetzni v. State of Israel, at 597.  The question is not before us now, since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review.  See HCJ 698/80 Kawasme v. Minister of Defense; Jam'iyat Ascan, at 794; Ajuri, at 364; HCJ 3278/02 Center for the Defense of the Individual v. Commander of the IDF Forces in the West Bank Area, at 396. See also Meir Shamgar, The Observance of International Law in the Administered Territories, 1 Israel Yearbook on Human Rights 262 (1971).

 

24.  Together with the provisions of international law, “the principles of the Israeli administrative law regarding the use of governing authority” apply to the military commander.  See Jam'iyat Ascan, at 793. Thus, the norms of substantive and procedural fairness (such as the right to have arguments heard before expropriation, seizure, or other governing actions), the obligation to act reasonably, and the norm of proportionality apply to the military commander.  See Abu Ita, at 231; HCJ 591/88 Taha v. Minister of Defense, at 52; Ajuri, at 382; HJC 10356/02 ­­­­­Hess v. Commander of the IDF Forces in the West Bank. Indeed, “[e]very Israeli soldier carries, in his pack, the provisions of public international law regarding the laws of war and the basic provisions of Israeli administrative law.”  Jam'iyat Ascan, at 810.

 

25.  This petition raises two separate questions. The first question: is the military commander in Judea and Samaria authorized, by the law applying to him, to construct the separation fence in Judea and Samaria?  An affirmative answer to this question raises a second question concerning the location of the separation fence. Both questions were raised before us in the petition, in the response, and in the parties’ arguments. The parties, however, concentrated on the second question; only a small part of the arguments before us dealt with the first question. The question of the authority to erect the fence in the area is complex and multifaceted, and it did not receive full expression in the arguments before us.  Without exhausting it, we too shall occupy ourselves briefly with the first question, dealing only with the arguments raised by the parties, and will then move to focus our discussion on the second question.

 

Authority to Erect the Separation Fence

 

26. Petitioners rest their assertion that the military commander does not have authority to construct the fence on two claims. The first is that the military commander does not have the authority to order construction of the fence since his decision is founded upon political – and not military – considerations.

 

27.  We accept that the military commander cannot order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to “annex” territories to the state of Israel. The purpose of the separation fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative.  The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:

 

The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology. However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations.  It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.

 

In the same spirit I wrote, in Jam’iyat Ascan, at 794, that

 

The military commander is not permitted to take the national, economic, or social interests of his own country into account . . . even the needs of the army are the army’s military needs and not the national security interest in the broad meaning of the term.

 

In Jam’iyat Ascan, we discussed whether the military commander is authorized to expand a road passing through the area. In this context I wrote, at 795:

 

The military administration is not permitted to plan and execute a system of roads in an area held in belligerent occupation, if the objective is only to construct a ”service road” for his own country.  The planning and execution of a system of roads in an occupied territory can be done for military reasons . . . the planning and execution of a system of roads can be done for reasons of the welfare of the local population.  This planning and execution cannot be done in order to serve the occupying country.

 

Indeed, the military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other.  In the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the state.  This Court has emphasized time and time again that the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary.  Permanent arrangements are not the affair of the military commander.  True, the belligerent occupation of the area has gone on for many years. This fact affects the scope of the military commander’s authority.  See Jam’iyat Ascan, at 800.  The passage of time, however, cannot extend the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation. 

 

28. We examined petitioners’ arguments, and have come to the conclusion, based upon the facts before us, that the fence is motivated by security concerns. As we have seen in the government decisions concerning the construction of the fence, the government has emphasized, numerous times, that “the fence, like the additional obstacles, is a security measure.  Its construction does not express a political border, or any other border.” (decision of June 23, 2002).  “The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the “Seamline Area,” is a security measure for the prevention of terror attacks and does not mark a national border or any other border.” (decision of October 1, 2003).

 

29.  The Commander of the IDF Forces in the area of Judea and Samaria (respondent no. 2), Major General M. Kaplinsky, submitted an affidavit to the Court.  In his affidavit he stated that “the objective of the security fence is to help contend with the threat of Palestinian terror.  Specifically, the fence is intended to prevent the unchecked passage of inhabitants of the area into Israel and their infiltration into Israeli towns located in the area. Based on this security consideration we determined the topographic route of the fence.” (affidavit of April 15, sections 22-23). The commander of the area detailed his considerations for the choice of the route. He noted the necessity that the fence pass through territory that topographically controls its surroundings, that, in order to allow surveillance of it, its route be as flat as possible, and that a “security zone” be established which will delay infiltration into Israel. These are security considerations par excellence. In an additional affidavit, Major General Kaplinsky testified that “it is not a permanent fence, but rather a temporary fence erected for security needs.” (affidavit of April 19, 2004, section 4).  We have no reason not to give this testimony less than full weight, and we have no reason not to believe the sincerity of the military commander.

 

30. Petitioners, by pointing to the route of the fence, attempt to prove that the construction of the fence is not motivated by security considerations, but by political ones.  They argue that if the fence was primarily motivated by security considerations, it would be constructed on the “Green Line,” that is to say, on the armistice line between Israel and Jordan after the War of Independence.  We cannot accept this argument. The opposite is the case: it is the security perspective – and not the political one – which must examine the route on its security merits alone, without regard for the location of the Green Line. The members of the Council for Peace and Security, whose affidavits were brought before us by agreement of the parties, do not recommend following the Green Line. They do not even argue that the considerations of the military commander are political. Rather, they dispute the proper route of the separation fence based on security considerations themselves. 

 

31. We set aside seven sessions for the hearing of the petition.  We heard the explanations of officers and workers who handled the details of the fence.  During our hearing of the petition, the route of the fence was altered in several locations. Respondents were open to our suggestions. Thus, for example, adjacent to the town of Har Adar, they agreed to move the fence passing north of the town to the security zone closer to it, and distance it from the lands of the adjacent village of El Kabiba.  We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are  political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in choosing the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding.

 

32. Petitioner second argument is that the construction of the fence in the area is based, in a large part, on the seizure of land privately owned by local inhabitants, that this seizure is illegal, and that therefore the military commander’s authority has no to construct the obstacle. We cannot accept this argument. We found no defect in the process of issuing the orders of seizure, or in the process of granting the opportunity to appeal them.  Regarding the central question raised before us, our opinion is that the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if this is necessary for the needs of the army.  See articles 23(g) and 52 of the Hague Convention; article 53 of the Fourth Geneva Convention.  He must, of course, provide compensation for his use of the land.  See HCJ 606/78 Ayoob v. Minster of Defense; HCJ 401/88 Abu Rian v. Commander of the IDF Forces in the Area of Judea and Samaria; Timraz.  Indeed, on the basis of the provisions of the Hague Convention and the Geneva Convention, this Court has recognized the legality of land and house seizure for various military needs, including the construction of military facilities (HCJ 834/78 Salama v. Minister of Defense), the paving of detour roads (HCJ 202/81 Tabib v. Minister of Defense; Wafa), the building of fences around outposts (Timraz), the temporary housing of soldiers (HCJ 290/89 Jora v. Commander of IDF Forces in Judea and Samaria), the ensuring of unimpaired traffic on the roads of the area (Abu Rian), the construction of civilian administration offices (HCJ 1987/90 Shadid v. Commander of IDF Forces in the Area of Judea and Samaria), the seizing of buildings for the deployment of a military force, (HCJ 8286/00 Association for Civil Rights in Israel v. Commander of the IDF Forces in the Area of Judea and Samaria). Of course, regarding all these acts, the military commander must consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework.  The infringement of property rights is insufficient, in and of itself, to take away the authority to build it. It is permitted, by the international law applicable to an area under belligerent occupation, to take possession of an individual’s land in order to erect the separation fence upon it, on the condition that this is necessitated by military needs. To the extent that construction of the fence is a military necessity, it is permitted, therefore, by international law. Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers. The building of the obstacle, to the extent it is done out of military necessity, is within the authority of the military commander.  Of course, the route of the separation fence must take the needs of the local population into account. That issue, however, concerns the route of the fence and not the authority to erect it. After reaching this conclusion, we must now contend with the second question before us – the question that constituted the main part of the arguments before us. This question is the legality of the location and route of the separation fence. We will now turn to this question.

 

The Route of the Separation Fence

 

33.  The focus of this petition is the legality of the route chosen for construction of the separation fence.  This question stands on its own, and it requires a straightforward, real answer.  It is not sufficient that the fence be motivated by security considerations, as opposed to political considerations.  The military commander is not at liberty to pursue, in the area held by him in belligerent occupation, every activity which is primarily motivated by security considerations. The discretion of the military commander is restricted by the normative system in which he acts, and which is the source of his authority. Indeed, the military commander is not the sovereign in the occupied territory. See Oppenheim, The Legal Relations Between an Occupying Power and the Inhabitants, 33 Law Q. Rev., 363, 364 (1917); Y. Dinstein, The Law of War 210 (1983).  He must act within the law which establishes his authority in a situation of belligerent occupation.  What is the content of this law?

 

34.  The law of belligerent occupation recognizes the authority of the military commander to maintain security in the area and to protect the security of his country and her citizens.  However, it imposes conditions on the use of this authority. This authority must be properly balanced against the rights, needs, and interests of the local population:

 

The law of war usually creates a delicate balance between two poles:  military necessity on one hand, and humanitarian considerations on the other.

 

Dinstein, Legislative Authority in the Administered Territories, 2 Iyunei Mishpat 505, 509 (1973)

 

This Court has emphasized, in its case law since the Six Day War, that “together with the right to administer comes the obligation to provide for the well being of the population.” HCJ 337/71 Al-jamaya Al-masihiye L’alararchi Elmakdasa v. Minister of Defense, at 581 (Sussman, D.P.). 

 

The obligations and rights of a military administration are defined, on one hand, by its own military needs and, on the other, by the need to ensure, to the extent possible, the normal daily life of the local population.

 

HCJ 256/72 Jerusalem District Electric Company v. Defense Minister, at 138 (Landau, J.).

 

This doctrine … does not have to result in the restriction of the power to tax, if this power is necessary for the well being of the area and due to its needs, since a proper balance between those considerations and the needs of the ruling army is a central and constant consideration of a military administration.

 

Abu Ita, at 270 (Shamgar, V.P.) (emphasis in the original).

 

In J’mayat Ascan, at 794, I myself similarly wrote, more than twenty years ago, that:

 

The Hague Regulations revolve around two central axes: one – the ensuring of the legitimate security interests of the holder of a territory held in belligerent occupation; the other – the ensuring of the needs of the local population in the territory held in belligerent occupation.

 

In HCJ 72/86 Zaloom v. The IDF Commander for the Area of Judea and Samaria, at 532, I held:

 

In using their authority, respondents must consider, on one hand, security considerations and, on the other hand, the interests of the civilian population.  They must attain a balance between these different considerations.

 

See also Marab, at 365. Similarly:

 

The obligation of the military administration, defined in regulation 43 of the Hague Regulations, is to preserve the order and the public life of the local population, but to do so while properly balancing between the interests of the population in the territory, and the military and security needs of soldiers and citizens located in the territory.

 

HCJ 2977/91 Thaj v. Minister of Defense, at 474 (Levin, J.).

 

The Hague Convention authorizes the military commander to act in two central areas: one – ensuring the legitimate security interest of the holder of the territory, and the other – providing for the needs of the local population in the territory held in belligerent occupation …. The first need is military and the second is civilian-humanitarian.  The first focuses upon the security of the military forces holding the area, and the second focuses upon the responsibility for ensuring the well being of the residents.  In the latter area the military commander is responsible not only for the maintenance of the order and security of the inhabitants, but also for the protection of their rights, especially their constitutional human rights.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must take into account.

 

Hess, at paragraph 8 (Procaccia, J.).

 

35.  This approach of this Court is well anchored in the humanitarian law of public international law.  This is set forth in Regulation 46 of the Hague Regulations and Article 46 of the Fourth Geneva Convention. Regulation  46 of the Hague Regulations provides:

 

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.  Private property cannot be confiscated.

 

Article 27 of the Fourth Geneva Convention provides:

 

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.  They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof …. However, 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.

 

These rules are founded upon a recognition of the value of man and the sanctity of his life. See Physicians for Human Rights, at para. 11.  Interpreting Article 27 of the Fourth Geneva Convention, Pictet writes:

 

Article 27 . . . occupies a key position among the articles of the Convention.  It is the basis of the Convention, proclaiming as it does the principles on which the whole “Geneva Law” is founded.  It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women . . . the right of respect for the person must be understood in its widest sense:  it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers, it includes, in particular, the right to physical, moral and intellectual integrity – one essential attribute of the human person.

 

The rules in Regulation 46 of the Hague Regulations and in Article 27 of the Fourth Geneva Convention cast a double obligation upon the military commander:  he must refrain from actions that injure the local inhabitants.  This is his “negative” obligation. He must take the legally required actions in order to ensure that the local inhabitants shall not be injured.  This is his “positive” obligation.  See Physicians for Human Rights. In addition to these fundamental provisions, there are additional provisions that deal with specifics, such as the seizure of land. See Regulation 23(g) and 52 of the Hague Regulations; Article 53 of the Fourth Geneva Convention. These provisions create a single tapestry of norms that recognizes both human rights and the needs of the local population as well recognizing security needs from the perspective of the military commander. Between these conflicting norms, a proper balance must be found.  What is that balance?

 

Proportionality

 

36.  The problem of balancing between security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation.  It is a general problem in the law, both domestic and international.  Its solution is universal.  It is found deep in the general principles of law, including reasonableness and good faith. See B. Cheng, General Principles of Law as Applied By International Courts and Tribunals (1987); T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989); S. Rosenne, The Perplexities of Modern International Law 63 (2002).  One of those foundational principles which balance between the legitimate objective and the means of achieving it is the principle of proportionality.  According to it, the liberty of the individual can be limited (in this case, the liberty of the local inhabitants under belligerent occupation), on the condition that the restriction is proportionate.  This approach crosses through all branches of law.  In the framework of the petition before us, its importance is twofold: first, it is a basic principle in international law in general and specifically in the law of belligerent occupation; second, it is a central standard in Israeli administrative law which applies to the area under belligerent occupation.  We shall now briefly discuss each of these.

 

37.  Proportionality is recognized today as a general principle of international law. See Meron, at 65; R. Higgins, Problems and Process: International Law and How We Use It 219 (1994); Delbruck, Proportionality, 3 Encyclopedia of Public International Law 1140, 1144 (1997).  Proportionality plays a central role in the law regarding armed conflict.  During such conflicts, there is frequently a need to balance between military needs and humanitarian considerations.  See Gardam,  Proportionality and Force in International Law, 87 Am. J. Int’l L. 391 (1993); Garden, Legal Restraints on Security Council Military Enforcement Action, 17 Mich. J. Int’l L. 285 (1996); Dinstein, Military Necessity, 3 Encyclopedia of Public International Law 395 (1997); Medenica, Protocol I and Operation Allied Force: Did NATO Abide by Principles of  Proportionality ?, 23 Loy. L. A. Int’l & Comp. L. Rev. 329 (2001); Roberts, The Laws of War in the War on Terror, 32 Isr. Yearbook of Hum. Rights. 1999 (2002).  Proportionality is a standard for balancing.  Pictet writes:

 

In modern terms, the conduct of hostilities, and, at all times the maintenance of public order, must not treat with disrespect the irreducible demands of humanitarian law.

 

From the foregoing principle springs the Principle of Humanitarian Law (or that of the law of war):

 

Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy.

 

J. S. Pictet, Developments and Principles of International Humanitarian Law 62 (1985). Similarly, Fenrick has stated:

 

[T]here is a requirement for a subordinate rule to perform the balancing function between military and humanitarian requirements. This rule is the rule of proportionality.

 

Fenrick, The Rule of  Proportionality and Protocol I in Conventional Warfare, 98 Military L. Rev. 91, 94 (1982). Gasser repeats the same idea:

 

International humanitarian law takes into account losses and damage as incidental consequences of (lawful) military operations … The criterion is the principle of proportionality.

 

Gasser, Protection of the Civilian Population, The Handbook of Humanitarian Law in Armed Conflicts 220 (D. Fleck ed., 1995).

 

38.  Proportionality is not only a general principle of international law. Proportionality is also a general principle of Israeli administrative law.  See Segal, The Cause of Action of Disproportionality in Administrative Law, HaPraklit 50 (1990); Zamir, The Administrative Law of Israel Compared to the Administrative Law of Germany, 2 Mishpat U’Mimshal 109, 130 (1994). At first a principle of our case law, then a constitutional principle, enshrined in article 8 of the Basic Law: Human Dignity and Freedom, it is today one of the basic values of the Israeli administrative law.  See HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, at 435; HCJ 3477/95 Ben-Atiyah v. Minister of Education, Culture & Sports; HCJ 1255/94 Bezeq v. Minister of Communications, at 687; HCJ 3643/97 Stamka v. Minister of Interior; HCJ 4644/00 Tavori v. The Second Authority for Television and Radio;  HCJ 9232/01 “Koach” Israeli Union of Organizations for the Defense of Animals v. The Attorney-General, at 261; D. Dorner, Proportionality, in 2 The Berenson Book 281 (A. Barak & C. Berenson eds., 1999).  The principle of proportionality applies to every act of the Israeli administrative authorities.  It also applies to the use of the military commander’s authority pursuant to the law of belligerent occupation.

 

39.  Indeed, both international law and the fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing between the authority of the military commander in the area and the needs of the local population.  Indeed, the principle of proportionality as a standard restricting the power of the military commander is a common thread running through our case law. See Segal, Security Authority, Administrative  Proportionality and Judicial Review, 1 Iyunei Mishpat 477 (1993).  Thus, for example, this Court examined, by use of the standard of proportionality, the authority of the military commander regarding “an order assigning a place of residence.”  See Ajuri; HCJ 9552/03 Abed v. Commander of the IDF Forces in the West Bank; HCJ 9586/03 Sualmeh v. Commander of the IDF Forces in the Judea and Samaria Region. The standard of proportionality was likewise used to examine his authority to surround towns and position checkpoints on the access roads to and from them, in order to frustrate terror.  See HCJ 2847/03 Alauna v. Commander of the IDF Forces in Judea and Samaria; HCJ 2410/03 Elarja v. Commander of the IDF Forces in Judea and Samaria. The same applied to injury to the property of residents due to combat activities of the IDF (HCJ 9252/00 El Saka v. State of Israel); the establishment of entry routes for Israelis into the area and its declaration as “closed military territory” (HCJ 9293/01 Barakeh v. Minister of Defense); the means employed to protect the safety of worshippers and their access to holy places (Hess); the demolition of houses for operational needs (HCJ 4219/02 Joosin v. Commander of the IDF Forces in the Gaza Strip);  such demolition for deterrence purposes (HCJ 5510/92 Turkman v. Defense Minister, at 219; HCJ 1730/96 Sabih v. Commander of the IDF Forces in the Area of Judea and Samaria, at 364; HCJ 893/04 Farj v. Commander of the IDF Forcers in the West Bank);  the living conditions of detained suspects in the area (HCJ 3278/02 Center for Defense of the Individual v. Commander of the IDF Forces in the West Bank Area; HCJ 5591/02 Yassin v. Commander of Kziot Military Camp); the authority to arrest for investigation purposes and the denial of a meeting between a detainee and an attorney (Marab); the siege of those hiding in holy places (HCJ 3451/02 Almandi v. Minister of Defence, at 36);  and the regulation of the recording and identification of residents of the area (HCJ 2271/98 Abed v. Interior Minister).

 

The Meaning of Proportionality  and its Elements

 

40.  According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize the governmental objective is of proper proportion. The principle of proportionality focuses, therefore, on the relationship between the objective whose achievement is being attempted, and the means used to achieve it. This principle is a general one. It requires application. As such, both in international law, which deals with different national systems – from both the common law family (such as Canada) and the continental family (such as Germany) – as well as in domestic Israeli law, three subtests grant specific content to the principle of proportionality. See J. Schwarze, European Administrative Law 687 (1992); N. Emiliou, The Principle of Proportionality in European Law; A Comparative Study (1996); The Principle of Proportionality in the Laws of Europe (1999).

 

41.  The first subtest is that the objective must be related to the means. The means that the administrative body uses must be constructed to achieve the precise objective which the administrative body is trying to achieve.  The means used by the administrative body must rationally lead to the realization of the objective.  This is the “appropriate means” or “rational means” test.  According to the second subtest, the means used by the administrative body must injure the individual to the least extent possible.  In the spectrum of means which can be used to achieve the objective, the least injurious means must be used.  This is the “least injurious means” test.  The third test requires that the damage caused to the individual by the means used by the administrative body in order to achieve its objectives must be of proper proportion to the gain brought about by that means. That is the “proportionate means” test (or proportionality “in the narrow sense.”)  The test of proportionality “in the narrow sense” is commonly applied with “absolute values,” by directly comparing the advantage of the administrative act with the damage that results from it.  However, it is also possible to apply the test of proportionality in the narrow sense in a “relative manner.”  According to this approach, the administrative act is tested vis-à-vis an alternate act, whose benefit will be somewhat smaller than that of the former one. The original administrative act is disproportionate in the narrow sense if a certain reduction in the advantage gained by the original act – by employing alternate means, for example – ensures a substantial reduction in the injury caused by the administrative act.

 

42.  It is possible to say that the means used by an administrative authority are proportionate only if all three subtests are satisfied.  Satisfaction of one or two of these subtests is insufficient. All three of them must be satisfied simultaneously. Not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a “zone of proportionality” must be recognized (similar to a “zone of reasonableness.”) Any means chosen by the administrative body that is within the zone of proportionality is proportionate.  See Ben-Atiyah, at 13; HCJ 4769/95 Menachem v. Minister of Transportation, at 258.

 

43.  This principle of proportionality also applies to the exercise of authority by the military commander in an area under belligerent occupation.  Thus, for example, in Ajuri, the question arose whether restricting the area in which one can live – in that case, the transfer of local inhabitants from the area of Judea and Samaria to the Gaza Strip – was proportionate. Regarding the proportionality test, as applied in that case, I wrote:

 

Like the use of any other means, the means of restricting the area in which one can live must be also be used proportionately. The individual’s offense must be proportionate to the means employed by the authorities … an appropriate link is necessary between the objective of preventing danger from the person whose living area is restricted, and the danger if this means is not employed … it is necessary that the injury caused by the means employed be minimal; it is also necessary that the means of restricting the living area be of proper proportion to the security benefit to the area.

 

Id., at 373.

 

The  Proportionality of the Route of the Separation Fence

 

44. The principle of proportionality applies to our examination of the legality of the separation fence. This approach is accepted by respondents.  It is reflected in the government decision (of October 1, 2003) that “during the planning, every effort shall be made to minimize, to the extent possible, the disturbance to the daily lives of the Palestinians due to the construction of the obstacle.” The argument that the damage caused by the separation fence route is proportionate was the central argument of respondents.  Indeed, our point of departure is that the separation fence is intended to realize a security objective which the military commander is authorized to achieve.  The key question regarding the route of the fence is: is the route of the separation fence proportionate? The proportionality of the separation fence must be decided by the three following questions, which reflect the three subtests of proportionality. First, does the route pass the “appropriate means” test (or the “rational means” test)?  The question is whether there is a rational connection between the route of the fence and the goal of the construction of the separation fence.  Second, does it pass the test of the “least injurious” means?  The question is whether, among the various routes which would achieve the objective of the separation fence, is the chosen one the least injurious.  Third, does it pass the test of proportionality in the narrow sense?  The question is whether the separation fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the fence. According to the “relative” examination of this test, the separation fence will be found disproportionate if an alternate route for the fence is suggested that has a smaller security advantage than the route chosen by respondent, but which will cause significantly less damage than that original route. 

 

The Scope of Judicial Review

 

45.  Before we examine the proportionality of the route of the separation fence, it is appropriate that we define the character of our examination. Our point of departure is the assumption, which petitioners did not manage to negate, that the government decision to construct the separation fence is motivated by security, and not a political, considerations.  As such, we work under the assumption – which the petitioners also did not succeed in negating – that the considerations of the military commander based the route of the fence on military considerations that, to the best of his knowledge, are capable of realizing this security objective. In addition, we assume – and this issue was not even disputed in the case before us – that the military commander is of the opinion that the injury to local inhabitants is proportionate.  On the basis of this factual foundation, there are two questions before us. The first question is whether the route of the separation fence, as determined by the military commander, is well-founded from a military standpoint. Is there another route for the separation fence which better achieves the security objective? This constitutes a central component of proportionality. If the chosen route is not well-founded from the military standpoint, then there is no rational connection between the objective which the fence is intended to achieve and the chosen route (the first subtest); if there is a route which better achieves the objective, we must examine whether this alternative route inflicts a lesser injury (the second subtest).  The second question is whether the route of the fence is proportionate. Both these questions are important for the examination of proportionality.  However, they also raise separate problems regarding the scope of judicial review.  My colleague Justice M. Cheshin has correctly noted:

 

Different subjects require, in and of themselves, different methods of intervention.  Indeed, acts of state and acts of war do not change their character just because they are subject to the review of the judiciary, and the character of the acts, according to the nature of things, imprints its mark on the methods of intervention.

 

HCJ 1730/96 Sabih v. Commander of IDF forces in the Area of Judea and Samaria, at 369. We shall examine, therefore, the scope of intervention for each of the two questions before us, separately.

 

The Military Nature of the Route of the Separation Fence

 

46.  The first question deals with the military character of the route. It examines whether the route chosen by the military commander for the separation fence achieves its stated objectives, and whether there is no route which achieves this objective better. It raises problems within the realm of military expertise.  We, Justices of the Supreme Court, are not experts in military affairs.  We shall not examine whether the military commander’s military opinion corresponds to ours – to the extent that we have a opinion regarding the military character of the route. So we act in all questions which are matters of professional expertise, and so we act in military affairs as well. All we can determine is whether a reasonable military commander would have set out the route as this military commander did.  President Shamgar dealt with this idea, noting:

 

It is obvious, that a court cannot “slip into the shoes” of the deciding military official … In order to substitute the discretion of the commander with the discretion of the Court, we examine the question whether, in light of all of the facts, the employment of the means can be viewed as reasonable.

 

HCJ 1005/89 Aga v. Commander of the IDF Forces in the Gaza Strip Area, at 539. Similarly, in Ajuri, I wrote:

 

The Supreme Court, sitting as the High Court of Justice, reviews the legality of the military commander’s discretion. Our point of departure is that the military commander, and those who obey his orders, are civil servants holding public positions.  In exercising judicial review, we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations.  We take no position regarding the way security affairs are run.  Our task is to guard the borders and to maintain the boundaries of the military commander’s discretion …. It is true, that “the security of the state” is not a ”magic word” which makes judicial review disappear. Thus, we shall not be deterred from reviewing the decisions of the military commander … simply because of the important security considerations anchoring his decision.  However, we shall not substitute the discretion of the commander with our own discretion. We shall check the legality of the discretion of the military commander and ensure that his decisions fall within the “zone of reasonableness.”

 

Id., at 375; see also HCJ 619/78 “Al Tal’ia” Weekly v. Defense Minister, at 512; Jam’iat Ascan, at 809; Barake, at 16.

 

47.  The petition before us is exceptional in that opinions were submitted by the Council for Peace and Security. These opinions deal with the military aspect of the separation fence. They were given by experts in the military and security fields, whose expertise was also recognized by the commander of the area.  We stand, therefore, before contradictory military opinions regarding the military aspects of the route of the separation fence.  These opinions are based upon contradictory military views.  Thus, for example, it is the view of the military commander that the separation fence must be distanced from the houses of Jewish towns, in order to ensure a security zone which will allow pursuit after terrorists who have succeeded in passing the separation fence, and that topographically controlling territory must be included in the route of the fence.  In order to achieve these objectives, there is no escaping the need to build the separation fence proximate to the houses of the local inhabitants. In contrast, the view of military experts of the Council for Peace and Security is that the separation fence must be distanced from the houses of local inhabitants, since proximity to them endangers security. Topographically controlling territory can be held without including it in the route of the fence.  In this state of affairs, are we at liberty to adopt the opinion of the Council for Peace and Security? Our answer is negative. At the foundation of this approach is our long-held view that we must grant special weight to the military opinion of the official who is responsible for security. Vice-President M. Landau J. dealt with this point in a case where the Court stood before two expert opinions, that of the Major General serving as Coordinator of IDF Activity in the Territories and that of a reserve Major General. Thus wrote the Court:

 

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

 

HCJ 258/79 Amira v. Defense Minister, 92.

 

Justice Vitkon wrote similarly in Duikat, in which the Court stood before a contrast between the expert opinion of the serving Chief of the General Staff regarding the security of the area, and the expert opinion of a former Chief of the General Staff.  The Court ruled, in that case, as follows:

 

In security issues, where the petitioner relies on the opinion of an expert in security affairs, and the respondent relies on the opinion of a person who is both an expert and also responsible for the security of the state, it natural that we will grant special weight to the opinion of the latter.

 

HCJ 390/79 Duikat v. Government of Israel.

 

Therefore, in our examination of the contrasting military considerations in this case, we give special weight to the fact that the commander of the area is responsible for security.  Having employed this approach, we are of the opinion – the details of which we shall explain below – that petitioners have not carried their burden, and have not convinced us that we should prefer the professional expert opinion of members of the Council for Peace and Security over the security stance of the commander of the area.  We are dealing with two military approaches.  Each of them has military advantages and disadvantages.  In this state of affairs, we must place the expert opinion of the military commander at the foundation of our decision.

 

The  Proportionality of the Route of the Separation Fence

 

48. The second question examines the proportionality of the route of the separation fence, as determined by the military commander. This question raises no problems in the military field; rather, it relates to the severity of the injury caused to the local inhabitants by the route decided upon by the military commander. In the framework of this question we are dealing not with military considerations, but rather with humanitarian considerations. The question is not the proportionality of different military considerations.  The question is the proportionality between the military consideration and the humanitarian consideration.  The question is not whether to prefer the military approach of the military commander or that of the experts of the Council for Peace and Security. The question is whether the route of the separation fence, according to the approach of the military commander, is proportionate. The standard for this question is not the subjective standard of the military commander. The question is not whether the military commander believed, in good faith, that the injury is proportionate.  The standard is objective.  The question is whether, by legal standards, the route of the separation fence passes the tests of proportionality.  This is a legal question, the expertise for which is held by the Court. I dealt with this issue in Physicians for Human Rights, stating:

 

Judicial review does not examine the wisdom of the decision to engage in military activity.  In exercising judicial review, we examine the legality of the military activity. Therefore, we assume that the military activity that took place in Rafah was necessary from a military standpoint.  The question before us is whether this military activity satisfies the national and international standards that determine the legality of that activity.  The fact that the activity is necessary on the military plane, does not mean that it is lawful on the legal plane.  Indeed, we do not substitute our discretion for that of the military commander’s, as far as it concerns military considerations.  That is his expertise.  We examine the results on the plane of the humanitarian law.  That is our expertise.

 

 

 

Id, paragraph 9.

 

From the General to the Specific

 

This oversight applies to the case before us. The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects. The military commander determines where, on hill and plain, the separation fence will be erected. That is his expertise. We examine whether this route's harm to the local residents is proportional. That is our expertise.

 

 

49.  The key question before us is whether the route of the separation fence is proportionate.  The question is:  is the injury caused to local inhabitants by the separation fence proportionate, or is it is possible to satisfy the central security considerations while establishing a fence route whose injury to the local inhabitants is lesser and, as such, proportionate?  The separation fence which is the subject of this petition is approximately forty kilometers long.  Its proportionality varies according to local conditions. We shall examine its proportionality according to the various orders that were issued for the construction of different parts of the fence.  We shall examine the legality of the orders along the route of the fence from west to east (See the appendix to this decision for a map of the region.) This route starts east of the town of Maccabim and the Beit Sira village. It continues south to the town of Mevo Choron, and from there continues east to Jerusalem.  The route of the fence continues to wind, and it divides between Israeli towns and Palestinian villages adjacent to it. It climbs Jebel Muktam in order to ensure Israeli control of it.  As such, it passes the villages of Beit Likia, Beit Anan, and Chirbet Abu A-Lahm. After that, it advances east, separating Ma’aleh HaChamisha and Har Adar from the villages of Katane, El Kabiba, and Bidu. The fence continues and circles the village of Beit Sourik, climbing northward until it reaches route 443, which is a major traffic route connecting Jerusalem to the center of the country. In its final part, it separates the villages Bidu, Beit Ajaza, and Beit Daku from Har Shmuel, New Giv’on, and Giv’at Ze’ev.

 

Order no. Tav/105/03

 

50.  This order concerns the route beginning east of the town of Maccabim and west of the village of Beit Sira, and ending northeast of the town of Mevo Choron. This segment was not the subject of substantial dispute by the parties.  Respondent informed us that the north tip of the route, which is subject to this order, as well as the southern tip, were changed (see map submitted to us by the parties, of March 31 2004). Thus, the injury to the cultivated lands proximate to it was reduced. Petitioners raised no arguments regarding the route itself, and the village of Beit Sira was not joined as a petitioner.  Members of the Council for Peace and Security did not mention this order in their affidavits. In light of all this, to the extent that it relates to this order, the petition is denied,.

 

Order Tav/104/03; Order Tav/103/03; Order Tav/84/03 (The Western Part of the Order)

 

51.  These orders apply to more than ten kilometers of the fence route. This segment of the route surrounds the high mountain range of Jebel Muktam.  This ridge topographically controls its immediate and general surroundings. It towers over route 443 which passes north of it, connecting Jerusalem to Modi’in. The route of the obstacle passes from southwest of the village of Beit Likia, southwest of the village of Beit Anan, and west of the village of Chirbet Abu A-Lahm.  Respondent explains that the objective of this route is to keep the mountain area under Israeli control.  This will ensure an advantage for the armed forces, who will topographically control the area of the fence, and it will decrease the capability of others to attack those traveling on route 443.

 

52. Petitioners painted a severe picture of how the fence route will damage the villages along it.  As far as the Beit Anan village (population: 5500) is concerned, 6000 dunams of village land will be affected by the fact that the obstacle passes over them. 7500 dunams of land will end up beyond the fence (6000 dunams of which are cultivated land). Ninety percent of the cultivated land seized and affected is planted with olive and fruit trees.  18,000 trees will be uprooted.  70,000 trees will be separated from their owners.  The livelihood of hundreds of families will be hurt. This damage is especially severe in light of the high unemployment rate in that area (approaching 75%).  As far as the Beit Likia village is concerned (population: 8000), 2100 dunams will be affected by the route of the obstacle.  Five thousand dunams will end up beyond the fence (3000 dunams of which are cultivated land).

 

53.  Respondents dispute this presentation of the facts.  They argue that the extent of damage is less than that described by petitioners.  As for the village of Beit Anan, 410 dunams (as opposed to 600) will be seized, and 1245 cultivated dunams will end up on the other side of the obstacle (as opposed to 6000).  Respondents further argue that 3500 trees will be uprooted (as opposed to 18,000).  However, even according to respondent, the damage to the villages is great, despite certain changes which respondents made during the hearing of the petition in order to relieve the situation of the local inhabitants.

 

54.  Petitioners attached the affidavit of the Council for Peace and Security (signed by Major General (res.) D. Rothchild, Major General (res.) A. Adan (Bren), Commissioner (ret.) S. Giv’oli, and Colonel (res.) Y. Dvir), which relates to this segment. According to the affidavit, the seizure of Jebel Muktam does not fit the principles set out for the building of the fence.  Effective light weapon fire from Jebel Muktam upon route 443 or upon any Israeli town is not possible. Moving the obstacle three kilometers south, adjacent to the Green Line, will place it upon topographically controlling territory that is easy to defend.  They argue that not every controlling hill is necessary for the defense of the separation fence.  Jebel Muktam is one example of that.  Moreover, the current route will necessitate the construction and maintenance of agricultural gates, which will create superfluous and dangerous friction with the local population, embittered by the damage inflicted upon them.  Petitioners presented two alternate proposals for the route in this area.  One passes next to the border of the area of Judea and Samaria.  This route greatly reduces the damage to the villages of Beit Likia and Beit Anan.  The route of the other proposal passes near the Green Line, south of the route of the first proposal.  This route does not affect the lands of these villages or the lands of the village of Chirbet Abu A-Lahm. 

 

55.  Respondent stated, in his response to the affidavit of members of the Council for Peace and Security, that it was not his intention to change the route of the fence that goes through this area.  He claims that IDF forces’ control of Jebel Muktam is a matter of decisive military importance. It is not just another topographically controlling hill, but rather a mountain looking out over the entire area.  He reiterated his stance that the current route will decrease the possibility of attack on travelers on route 443, and that erecting the obstacle upon the mountain will prevent its taking by terrorists.  Respondent surveyed the relevant area, and came to the conclusion that the route proposed by petitioners is considerably topographically inferior, and will endanger the forces that will patrol along the fence.  In order to reduce the injury to the local inhabitants, the military commander decided that agricultural gates be built. One daytime gate will be built south of Beit Likia.  Another daytime gate will be built three kilometers from it (as the crow flies), north of Beit Anan.  Specific requests by farmers will be examined on their merits.  Owners of land seized will be compensated, and olive trees will be transferred rather than uprooted. The route has even taken into consideration buildings built illegally by Palestinian inhabitants in the area, since there was not enough time to take the legal steps necessary for their demolition.  We were further informed that it was decided, during the survey which took place onsite with the participation of petitioners’ counsel, to make a local correction in the route of the obstacle, adjacent to the village of Chirbet Abu A-Lahm, which will distance the obstacle from the houses of the village.  We originally prohibited (on February 29, 2004) works to erect the separation fence in the part of the route to which the abovementioned orders apply.  During the hearing (on March 31, 2004), we ordered the cancellation of the temporary injunction with respect to the segment between the Beit Chanan riverbed and the ascent to Jebel Muktam.

 

56. From a military standpoint, there is a dispute between experts regarding the route that will realize the security objective.  As we have noted, this places a heavy burden on petitioners, who ask that we prefer the opinion of the experts of the Council for Peace and Security over the approach of the military commander. The petitioners have not carried this burden.  We cannot – as those who are not experts in military affairs – determine whether military considerations justify laying the separation fence north of Jebel Muktam (as per the stance of the military commander) or whether there is no need for the separation fence to include it (as per  the stance of petitioners’ and the Council for Peace and Security).  Thus, we cannot take any position regarding whether the considerations of the military commander, who wishes to hold topographically controlling hills and thus prevent “flat-trajectory” fire, are correct, militarily speaking, or not. In this state of affairs, there is no justification for our interference in the route of the separation fence from a military perspective.

 

57. Is the injury to the local inhabitants by the separation fence in this segment, according to the route determined by respondent, proportionate?  Our answer to this question necessitates examination of the route’s proportionality, using the three subtests.  The first subtest examines whether there is a rational connection between the objective of the separation fence and its established route. Our answer is that such a rational connection exists. We are aware that the members of the Council for Peace and Security claim, in their expert opinion, that such a connection does not exist, and that the route proposed by them is the one that satisfies the “rational connection” test.  As we stated, we cannot accept this position.  By our very ruling that the route of the fence passes the test of military rationality, we have also held that it realizes the military objective of the separation fence.

 

58.  The second subtest examines whether it is possible to attain the security objectives of the separation fence in a way that causes less injury to the local inhabitants.  There is no doubt – and the issue is not even disputed – that the route suggested by the members of the Council for Peace and Security causes less injury to the local inhabitants than the injury caused by the route determined by the military commander.  The question is whether the former route satisfies the security objective of the security fence to the same extent as the route set out by the military commander.  We cannot answer this question in the affirmative. The position of the military commander is that the route of the separation fence, as proposed by members of the Council for Peace and Security, grants less security than his proposed route. By our very determination that we shall not intervene in that position, we have also determined that there is no alternate route that fulfills, to a similar extent, the security needs while causing lesser injury to the local inhabitants.  In this state of affairs, our conclusion is that the second subtest of proportionality, regarding the issue before us, is satisfied.

 

59.  The third subtest examines whether the injury caused to the local inhabitants by the construction of the separation fence stands in proper proportion to the security benefit from the the security fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:

 

The third element is proportionality itself.  According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen.  The proportion between the benefit and the damage – and it is also possible to say the proportion between means and objective – must be proportionate.

 

Zamir, id., at 131.

 

This subtest weighs the costs against the benefits. See Stamka, at 776.  According to this subtest, a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual. The objective of the examination is to determine whether the severity of the damage to the individual and the reasons brought to justify it stand in proper proportion to each other.  This judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants, and which preserves “family honour and rights” (Regulation 46 of the Hague Regulations).  All these are protected in the framework of the humanitarian provisions of the Hague Regulations and the Geneva Convention.  The question before us is: does the severity of the injury to local inhabitants, by the construction of the separation fence along the route determined by the military commander, stand in reasonable (proper) proportion to the security benefit from the construction of the fence along that route?

 

60.  Our answer is that there relationship between the injury to the local inhabitants and the security benefit from the construction of the separation fence along the route, as determined by the military commander, is not proportionate. The route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. This approach is based on the fact that the route which the military commander established for the security fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law. Here are the facts:  more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the separation fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter.  The separation is not hermetic: the military commander announced that two gates will be constructed, from each of the two villages, to its lands, with a system of licensing.  This state of affairs injures the farmers severely, as access to their lands (early in the morning, in the afternoon, and in the evening), will be subject to restrictions inherent to a system of licensing.  Such a system will result in long lines for the passage of the farmers themselves; it will make the passage of vehicles (which themselves require licensing and examination) difficult, and will distance the farmer from his lands (since only two daytime gates are planned for the entire length of this segment of the route).  As a result, the life of the farmer will change completely in comparison to his previous life.  The route of the separation fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired.  The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe.

 

61.  These injuries are not proportionate.  They can be substantially decreased by an alternate route, either the route presented by the experts of the Council for Peace and Security, or another route set out by the military commander. Such an alternate route exists.  It is not a figment of the imagination.  It was presented before us.  It is based on military control of Jebel Muktam, without “pulling” the separation fence to that mountain.  Indeed, one must not forget that, even after the construction of the separation fence, the military commander will continue to control the area east of it.  In the opinion of the military commander – which we assume to be correct, as the basis of our review – he will provide less security in that area.  However, the security advantage reaped from the route as determined by the military commander, in comparison to the proposed route, does not stand in any reasonable proportion to the injury to the local inhabitants caused by this route.  Indeed, the real question in the “relative” examination of the third proportionality subtest is not the choice between constructing a separation fence which brings security but injures the local inhabitants, or not constructing a separation fence, and not injuring the local inhabitants.  The real question is whether the security benefit reaped by the acceptance of the military commander’s position (that the separation fence should surround Jebel Muktam) is proportionate to the additional injury resulting from his position (with the fence separating local inhabitants from their lands). Our answer to this question is that the military commander’s choice of the route of the separation fence is disproportionate.  The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference between a fence that separates the local inhabitants from their lands, and a fence which does not separate the two (or which creates a separation which is smaller and possible to live with).  Indeed, we accept that security needs are likely to necessitate an injury to the lands of the local inhabitants and to their ability to use them. International humanitarian law on one hand, however, and the basic principles of Israeli administrative law on the other, require making every possible effort to ensure that injury will be proportionate. Where construction of the separation fence demands that inhabitants be separated from their lands, access to these lands must be ensured, in order to minimize the damage to the extent possible.

 

62.  We have reached the conclusion that the route of the separation fence, which separates the villages of Beit Likia and Beit Anan from the lands which provide the villagers with their livelihood, is not proportionate.  This determination affects order Tav/103/03, which applies directly to the territory of the mountain itself, and leads to its annulment.  This determination also affects order Tav/104/03 which applies to the route west of it, which turns in towards the village of Beit Likia, in order to reach the mountain.  The same goes for the western part of order Tav/84/03, which descends from the mountain in a southeasterly direction. The eastern part of the latter order was not a matter of significant dispute between the parties, but as a result of the annulment of the aforementioned orders, it should be examined anew.

 

Order no. Tav/107/30 (Until the Hill Northeast of Har Adar)

 

63.  This order applies to the part of the fence route which begins south of the village of Katane and ends up east of the town of Har Adar.  Its length is about four and one half kilometers.  It separates between Har Adar and the villages of Katane (population: approximately 1000), El Kabiba (population: 2000), Bidu (population: 7500) and Beit Sourik (population: 3500).  Petitioners argue that the route of this segment of the fence will cause direct injury to 300 dunams of the village of Katane.  5700 dunams of the lands of the village will end up on the other side of the fence (4000 of them cultivated lands).  They further argue that 200 dunams of the land of the village of El Kabiba will be directly injured by the fence passing through them.  2500 dunams will end up on the other side of the fence (of which 1500 dunams are cultivated land).  Indeed, then, the separation fence causes severe injury to the local inhabitants. The fence cuts the residents of the villages off from their lands, and makes their access to it – access upon which the livelihood of many depends – difficult. Study of the map attached by respondents (response of March 10 2004) reveals that along this part of the route, two gates will be built. One gate can only be used by pedestrian traffic. It is located at the western edge of this part of the route (south of the village of Katane). A second gate is a daytime gate located south of the hill which topographically controls the town of Har Adar from the northwest, and west of the village of Bidu.  Respondent argues that the gates will allow the passage of farmers to their lands.  Compensation  will be paid to those whose lands are seized. Thus a proper balance will be struck between security needs and the needs of the local population.

 

64.  After submission of the petition and examination of the arguments raised in it, respondents changed the route of the separation fence in this area. This part of the route, which passes north of Har Adar, will be closer to the security systems already existing in that town. Respondents stated that, as a result of this correction, the solution to security problems will be an inferior one, but they will reduce the injury to the local population and provide a reasonable level of security. Petitioners, however, claim that these changes are insufficient.  The stance of the Council for Peace and Security, as per its first affidavit (signed by Major General (res.) Avraham Adan (Bren), Commissioner (res.) Shaul Giv’oli and Colonel (res.) Yuval Dvir), is that the separation fence should be integrated into the existing fence of the town of Har Adar.  Moving the fence to a location adjacent to the village of Katane (west of Har Adar) will cause severe injury to the local inhabitants and will suffer all of the same aforementioned problems of a fence proximate to houses of Palestinians. Placing the fence side by side with the existing security systems west of Har Adar will not increase the danger of fire upon Har Adar. That is since it is already possible to fire upon it from the adjacent villages.  Moreover, the current route, which passes next to Palestinian buildings, will endanger the forces patrolling along it, and will increase the concerns regarding false alarms.

 

65.  The military commander argued, in response, that it is impossible to make a change in the route in the area of the village of Katane. From the operational standpoint, the proposal will allow terrorists free access all the way to the houses at the western edge of  Har Adar. Nor can a change be made in the route from the engineering standpoint, since the patrol road that must pass along the fence will be so steep that it will not allow movement of vehicles there. Regarding the part of the route which passes north of Har Adar, respondent agrees that it will be possible to integrate it with the existing defense perimeter of Har Adar (partially, in the area of the pumping facility of the town).  Respondents are not prepared to make any additional changes to the remainder of the route in this segment.  The military commander argues, in addition, that the proposal of the Council for Peace and Security regarding the part of the route which passes east of Har Adar cannot be accepted. That proposal would leave a hill located northeast of the town, which topographically controls it and the surroundings, outside of the defended area.  Nonetheless, he testified that, after meetings with petitioners and members of the Council for Peace and Security, it was decided that slight changes would be made in the segment which passes alongside the northeast hill. As a result, the obstacle will be distanced further from the road and from the homes of the local inhabitants in the area (see para. 60 of military commander’s affidavit of April 15 2004).  Respondent also stated that order of seizure Tav/37/04, which amends the route accordingly, has already been issued. In our decision (of March 31 2004) we held that respondents shall refrain from making irreversible changes in the segment north of Har Adar.

 

66.  From the military standpoint, there is a dispute between the military commander (who wishes to distance the separation fence from Har Adar) and the experts of the Council for Peace and Security (who wish to bring the fence closer to Har Adar). In this disagreement on military issues – and according to our approach, which gives great weight to the position of the military commander responsible for the security of the area – we accept the security stance of the military commander. Against this background, the question arises:  is this part of the route of the separation fence proportionate?

 

67.  Like the previous order we considered, this order before us also passes the two first subtests of proportionality (rational connection; the least injurious means).  The key question here concerns the third subtest (proportionality in the narrow sense).  Here too, as in the case of the previous order, the injury by the separation fence to the lives of more than 3000 farmers in the villages of Katane and El-Kabiba is severe.  The rights guaranteed them by the Hague Regulations and the Fourth Geneva Convention are violated. The delicate balance between the military commander’s obligation to provide security and his obligation to provide for the local inhabitants is breached. The fence separates between the inhabitants of Katane and El-Kabiba and their lands east and west of Har Adar, while instituting a licensing regime for passage from one side of the fence to the other. As a result, the farmer’s way of life is impinged upon most severely. The regime of licensing and gates, as set out by the military commander, does not solve this problem.  The difficulties we mentioned regarding the previous order apply here as well. As we have seen, it is possible to lessen this damage substantially if the route of the separation fence passing east and west of Har Adar is changed, reducing the area of agricultural lands lying beyond the fence. The security advantage (in comparison to the possible alternate route) which the military commander wishes to achieve is not proportionate to the severe injury to the farmers (according to the route proposed by the military commander).  On this issue, attempts to find an appropriate solution were made during the hearing of the petition. These attempts must continue, in order to find a route which will fulfill the demands of proportionality. As a result of such a route, it may be that there will be no escaping some level of injury to the inhabitants of Katane and El-Kabiba, which should be reduced to the extent possible. As such, since the parties must continue to discuss this issue, we have not seen fit to make a final order regarding Tav/107/03.

 

The Eastern Tip of Order no. Tav/107/03 and Order no. Tav/108/03

 

68.  This order applies to the five and a half kilometer long segment of the route of the obstacle which passes west and southeast of the villages of Beit Sourik (population: 3500) and Bidu (population: 7500).  A study of this part of the route, as published in the original order, reveals that the injury to these villages is great.  From petitioners’ data – which was not negated by respondents – it appears that 500 dunams of the lands of the village of Beit Sourik will be directly damaged by the positioning of the obstacle. 6000 additional dunams will remain beyond it  (5000 dunams of which are cultivated land), including three greenhouses. Ten thousand trees will be uprooted and the inhabitants of the villages will be cut off from 25,000 thousand olive trees, 25,000 fruit trees and 5400 fig trees, as will as from many other agricultural crops. These numbers do not capture the severity of the damage.  We must take into consideration the total consequences of the obstacle for the way of life in this area.  The original route as determined in the order leaves the village of Beit Sourik bordered tightly by the obstacle on its west, south, and east sides. This is a veritable chokehold, which will severely stifle daily life. The fate of the village of Bidu is not much better. The obstacle surrounds the village from the east and the south, and impinges upon lands west of it.  From a study of the map attached by the respondents (to their response of March 10, 2004) it appears that, on this segment of the route, one seasonal gate will be established south of the village of Beit Sourik.  In addition, a checkpoint will be positioned on the road leading eastward from Bidu.

 

69.  In addition to the parties’ arguments before us, a number of residents of the town of Mevasseret Zion, south of the village of Beit Sourik, asked to present their position. They pointed out the good neighborly relations between Israelis and Palestinians in the area and expressed concern that the route of the fence, which separates the Palestinian inhabitants from their lands, will put those relations to an end.  They argue that the Palestinians’ access to their lands will be subject to a series of hindrances and violations of their dignity, and that this access will even be prevented completely.  On the other hand, Mr. Efraim Halevi asked to present his position, which represents the opinion of other residents of the town of Mevasseret Tzion.  He argues that moving the route of the fence southward, such that it approaches Mevasseret Tzion, will endanger its residents.

 

70.  As with the previous orders, here too we take the route of the separation fence determined by the military commander as the basis of our examination. We do so, since we grant great weight to the stance of the official who is responsible for security.  The question which arises before us is: is the damage caused to the local inhabitants by this part of the separation fence route proportionate?  Here too, the first two subtests of the principle of proportionality are satisfied. Our doubt relates to the satisfaction of the third subtest.  On this issue, the fact is that the damage from the segment of the route before us is most severe. The military commander himself is aware of that.  During the hearing of the petition, a number of changes in the route were made in order to ease the situation of the local inhabitants.  He mentioned that these changes provide an inferior solution to security problems, but will allow the injury to the local inhabitants to be reduced, and will allow a reasonable level of security.  However, even after these changes, the injury is still very severe.  The rights of the local inhabitants are violated. Their way of life is completely undermined.  The obligations of the military commander, pursuant to the humanitarian law enshrined in the Hague Regulations and the Fourth Geneva Convention, are not being satisfied.

 

71.  The Council for Peace and Security proposed an alternate route, whose injury to the agricultural lands is much smaller. It is proposed that the separation fence be distanced both from the east of the village of Beit Sourik and from its west.  Thus, the damage to the agricultural lands will be substantially reduced.  We are convinced that the security advantage achieved by the route, as determined by the military commander, in comparison with the alternate route, is in no way proportionate to the additional injury to the lives of the local inhabitants caused by this order.  There is no escaping the conclusion that, for reasons of proportionality, this order before us must be annulled. The military commander must consider the issue again.  He must create an arrangement which will avoid this severe injury to the local inhabitants, even at the cost of a certain reduction of the security demands. The proposals of the Council for Peace and Security – whose expertise is recognized by the military commander – may be considered.  Other routes, of course, may be considered.  This is the military commander’s affair, subject to the condition that the location of the route free the village of Beit Sourik (and to a lesser extent, the village of Bidu) from the current chokehold and allow the inhabitants of the villages access to the majority of their agricultural lands.

 

Order no. Tav/109/103

 

72.  This order applies to the route of the separation fence east of the villages of Bidu, Beit Ajaza and Beit Daku.  Its length is approximately five kilometers. As we take notice of its southern tip, its central part, and its northern part, different parts of it raise different problems. The southern tip of the order directly continues from the route of order no. Tav/108/03, to the area passing west of the town of Har Shmuel. This part of the fence passes east of the village of Bidu, and it is the direct continuation of the part of the separation fence considered by us in the framework of order no. Tav/108/03.  The fate of this part of order no. Tav/109/03 is the same fate as that of order no. Tav/108/03.  As such, the separation fence will be moved eastward, so that the inhabitants of the village of Bidu will be able to continue the agricultural cultivation of the part of their lands east of this part of the fence.

 

73.  The central part of the separation fence in this order passes west of the town of Har Shmuel and east of the village of Bidu, until it reaches New Giv’on, which is east of it, and the village of Beit Ajaza which is west of it.  The separation fence separates these two towns.  The route causes injury to the agricultural lands of the village of Bidu and to the access to them.  The route also impinges upon the lands of the village of Beit Ajaza.  We were informed that 350 dunams of the lands of this village will be damaged by the construction of the obstacle.  2400 dunams of the lands of the village will be beyond it (2000 dunams of it cultivated land).  In addition, the route cuts off the access roads that connect the villages to the urban center of Ramallah and to East Jerusalem   In the affidavit of the Council for Peace and Security (of April 4 2004) it was mentioned that the current route will allow the local inhabitants to reach Ramallah only via a long and difficult road. Petitioners proposed that the route of the fence pass adjacent to the town of Har Shmuel, to the road connecting the Ramot neighborhood to Giv’at Ze’ev, and to the southern part of the town of New Giv’on.  Thus, free access to the agricultural lands in the area will be possible.  Petitioners also proposed pressing the route up against the western part of New Giv’on, and thus distancing it a bit from the village of Beit Ajaza.

 

74.  The route proposed by petitioners is unacceptable to respondent.  He argues that it does not take into account the palpable threat of weapons fire upon Israeli towns and upon the road connecting Ramot with Giv’at Ze’ev.  Neither does it consider the need to establish a security zone which will increase the preparation time available to the armed forces in the event of an infiltration.  Respondent argues that pushing the separation fence up against the Israeli towns will substantially endanger those towns.  The military commander is aware of this, and therefore testified before us that a gate will be established at that location in order to allow the inhabitants’ passage to their lands.  East of the village of Bidu, a permanent checkpoint will be established, which will be open 24 hours a day, 365 days a year, in order to allow the preservation of the existing fabric of life in the area and ease the access to the villages.  It was further decided to take steps which will improve the roads connecting the villages to one another, in order to allow the continued relations between these villages, and between them and Ramallah. In addition, respondent is examining the possibility of paving a road which will allow free and fast access from the villages to the direction of Ramallah. In his affidavit (of April 20 2004), respondent testified (paragraph 22 of the affidavit) that, until the completion of said road, he will not prevent passage of the inhabitants of the villages in this petition to the direction of Ramallah; rather, access toward the city will be allowed, according to the current arrangements.

 

75.  According to our approach, great weight must be given to the military stance of the commander of the area.  Petitioners did not carry their burden and did not convince us that we should prefer petitioners’ military stance (supported in part by the expert opinion of members of the Society for Peace and Security) over the stance of the commander of the area.  We assume, therefore, that the position of the commander of the area, as expressed in this part of order no. Tav/109/03, is correct, and it forms the basis for our examination.

 

76.  Is the damage caused to the local inhabitants by this part of the route of the separation fence proportionate?  Like the orders we considered up to this point, the question is: is the security advantage gained from the route, as determined by the commander of the area, compared to other possible alternate routes, proportionate to the additional injury to the local inhabitants caused by this route, compared to the alternate routes?  Here, as well, the picture we have already dealt with reappears. The route of the fence, as determined by the military commander, separates local inhabitants from their lands.  The proposed licensing regime cannot substantially solve the difficulties raised by this segment of the fence. All this constitutes a severe violation of the rights of the local inhabitants. The humanitarian provisions of the Hague Regulations and of the Fourth Geneva Convention are not satisfied. The delicate balance between the security of the area and the lives of the local inhabitants, for which the commander of the area is responsible, is upset. There is no escaping, therefore, the annulment of the order, to the extent that it applies to the central part of the fence.  The military commander must consider alternatives which, even if they result in a lower level of security, will cause a substantial (even if not complete) reduction of the damage to the lives of the local inhabitants.

 

77.  We shall now turn to the northern part of order no. Tav/109/03.  The route of the gate at this part begins in the territory separating New Giv’on from the village of Beit Ajaza.  It continues northwest to the eastern part of the village of Beit Daku.  In our decision (of March 31 2004), we determined that respondents shall refrain from making irreversible changes in the segment between Beit Tira and North Beit Daku.  There is no dispute between the parties regarding the part of the fence which separates New Giv’on and Beit Ajaza.  This part of the fence is legal.  The dispute arises regarding the part of the separation fence which lies beyond it.

 

78.  Petitioners argue that this part of the route of the separation fence severely injures the local inhabitants of the village of Beit Daku.  The data in their arguments show that 300 dunams of village lands will be directly damaged by the passage of the obstacle through them. 4000 dunams will remain beyond the obstacle (2500 of them cultivated). The affidavit submitted by the Council for Peace and Security states that the route of the obstacle should be moved a few hundred meters northeast of the planned location, in order to reduce the effect on local inhabitants.  Petitioners presented two alternate routes for the obstacle in this segment.  One route passes through the area intended for expansion of the town of Giv’at Ze’ev known by the nickname of “The Gazelles’ Basin,” where a new neighborhood is already being built.  A second alternate route draws the obstacle closer to its present route, northeast of it.

 

79.  Respondent objects to the route proposed by petitioners and by the Society for Peace and Security.  He explains that there is great importance to the control of a high hill located east of the village of Beit Daku. This hill topographically controls New Giv’on, Giv’at Ze’ev and “The Gazelles’ Basin.” The route of the fence was planned such that it would not obstruct the road connecting the villages of Beit Daku and Beit Ajaza.  In addition, the route passes over ridges of the hill which are of relatively moderate gradient, whereas the other ridges which descend from it are steep. In respondent’s opinion, moving the fence northwest of its current route will allow terrorist activity from the high hill, and thus endanger the Israeli towns and the army forces patrolling along the obstacle. In addition, the fact that the route proposed by petitioners is steeper raises complex engineering problems, whose solution will demand multiple bends in the route that will seriously damage the crops located at the foot of the hill.

 

80.  As with other segments of the separation fence, here too we begin from the assumption that the military-security considerations of the military commander are reasonable, and that there is no justification for our intervention.  The question before us, therefore, is: is the route of the separation fence, which actualizes these considerations, proportionate?  The main difficulty is the severe injury to the local inhabitants of Beit Daku. The fence separates them from considerable parts (4000 dunams, 2500 of which are cultivated) of their lands. Thus, a disproportionate injury is caused to the lives of the people in this location.  We accept – due to the military character of the consideration – that the high hill east of the village of Daku must be under IDF control.  We also accept that “The Gazelles’ Basin” is a part of Giv’at Ze’ev and needs defense just like the rest of that town.  Despite all that, we are of the opinion that the military commander must map out an alternate arrangement – one that will both satisfy the majority of the security considerations and also mitigate, to the extent possible, the separation of the local inhabitants of the village of Daku from their agricultural lands.  Such alternate routes were presented before us. We shall not take any stand whatsoever regarding a particular alternate route. The military commander must determine an alternative which will, provide a fitting, if not ideal, solution for the security considerations, and also allow proportionate access of Beit Daku villagers to their lands.

 

Order no. Tav/110/03

 

81.  This order continues the route of the separation fence northwest of Beit Daku.  This part starts out adjacent to the east part of the village of A-Tira, and ends up at route 443, east of Beit Horon.  The village of A-Tira is not a party to the petition before us, and we will not deal with its inhabitants. As far as it affects the lands of Beit Daku, this order must go the way of Tav/109/03, which we have already discussed.

 

Overview of the Proportionality of the Injury Caused by the Orders

 

82.  Having completed the examination of the proportionality of each order separately, it is appropriate that we lift our gaze and look out over the proportionality of the entire route of the part of the separation fence which is the subject of this petition. The length of the part of the separation fence to which these orders apply is   approximately forty kilometers. It causes injury to the lives of 35,000 local inhabitants. 4000 dunams of their lands are taken up by the route of the fence itself, and thousands of olive trees growing along the route itself are uprooted.  The fence separates the eight villages in which the local inhabitants live from more than 30,000 dunams of their lands. The great majority of these lands are cultivated, and they include tens of thousands of olive trees, fruit trees and other agricultural crops. The licensing regime which the military commander wishes to establish cannot prevent or substantially decrease the extent of the severe injury to the local farmers.  Access to the lands depends upon the possibility of crossing the gates, which are very distant from each other and not always open. Security checks, which are likely to prevent the passage of vehicles and which will naturally cause long lines and many hours of waiting, will be performed at the gates. These do not go hand in hand with the farmer’s ability to work his land. There will inevitably be areas where the security fence will have to separate the local inhabitants from their lands. In these areas, the commander should allow passage which will reduce, to the extent possible, the injury to the farmers.

 

83.  During the hearings, we asked respondent whether it would be possible to compensate petitioners by offering them other lands in exchange for the lands that were taken to build the fence and the lands that they will be separated from. We did not receive a satisfactory answer. This petition concerns farmers that make their living from the land. Taking petitioners’ lands obligates the respondent, under the circumstances, to attempt to find other lands in exchange for the lands taken from the petitioners. Monetary compensation may only be offered  if there are no substitute lands.

 

84. The injury caused by the separation fence is not restricted to the lands of the inhabitants and to their access to these lands .  The injury is of far wider a scope. It strikes across the fabric of life of the entire population. In many locations, the separation fence passes right by their homes. In certain places (like Beit Sourik), the separation fence surrounds the village from the west, the south and the east.  The fence directly affects the links between the local inhabitants and the urban centers (Bir Nabbala and Ramallah). This link is difficult even without the separation fence. This difficulty is multiplied sevenfold by the construction of the fence.

 

85.  The task of the military commander is not easy.  He must delicately balance between security needs and the needs of the local inhabitants. We were impressed by the sincere desire of the military commander to find this balance, and his willingness to change the original plan in order to reach a more proportionate solution.  We found no stubbornness on his part. Despite all this, we are of the opinion that the balance determined by the military commander is not proportionate.  There is no escaping, therefore, a renewed examination of the route of the fence, according to the standards of proportionality that we have set out.

 

Epilogue

 

86. Our task is difficult.  We are members of Israeli society.  Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terror.  We are aware of the killing and destruction wrought by the terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that in the short term, this judgment will not make the state’s struggle against those rising up against it easier. But we are judges. When we sit in judgment, we are subject to judgment.  We act according to our best conscience and understanding.  Regarding the state’s struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit.  There is no security without law. Satisfying the provisions of the law is an aspect of national security. I discussed this point in HCJ 5100/94 The Public Committee against Torture in Israel v. The Government of Israel, at 845:

 

We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome  her difficulties.

 

That goes for this case as well.  Only a separation fence built on a base of law will  grant security to the state and its citizens. Only a separation route based on the path of law, will lead the state to the security so yearned for.

 

The result is that we reject the petition against order no. Tav/105/03. We accept the petition against orders Tav/104/03, Tav/103/03, Tav/84/03 (western part), Tav/107/03, Tav/108/03, Tav/109/03, and Tav/110/03 (to the extent that it applies to the lands of Beit Daku), meaning that these orders are nullified, since their injury to the local inhabitants is disproportionate.

 

Respondents will pay 20,000 NIS in petitioners’ costs.

 

 

Vice President E. Mazza

I concur.

 

Justice M. Cheshin

I concur.

 

Held, as stated in the opinion of President A. Barak.

June 30, 2004

 

 

HCJ 5666/03

Kav LaOved

and others

v.

1.     National Labour Court, Jerusalem

2.     Givat Zeev Local Council

3.     Attorney-General

4.     New General Federation of Labour

5.     Abir Textile Industries Ltd

6.     Y. Zarfati Vehicle Services Ltd

7.     Nituv Management and Development Company Ltd

8.     Aqua Print Technological Toning Ltd

 

 

The Supreme Court sitting as the High Court of Justice

[19 September 2007]

Before President D. Beinisch, Vice-President E. Rivlin
and Justices A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, E. Arbel, S. Joubran, E. Hayut

 

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

 

Facts: Palestinian workers filed claims in the Labour Courts against their Israeli employers with regard to their employment in the Israeli enclaves in Judaea and Samaria. These claims gave rise to the question whether these employment relationships were governed by Israeli law or by the local law of Judaea and Samaria, which is Jordanian law, the significance of this question being that Israeli law grants workers more rights and protection than Jordanian law.

The National Labour Court held on appeal that in the absence of any stipulation on this issue in the employment contracts, these employment relationships were governed by Jordanian law as the local law in force in Judaea and Samaria, since Israeli law has never been applied to the occupied territories as a whole, but only to Israelis living in Judaea and Samaria.

The petitioners, who are human rights organizations, petitioned the Supreme Court on behalf of the Palestinian workers to set aside the judgment of the National Labour Court and to rule that Israeli law governs their employment relationship. They argued that this intention could be clearly seen from the employment contracts. They further argued that this conclusion was also required on several other grounds: the second respondent is an Israeli government authority, and is therefore bound by Israeli law; the custom in employment law is that the employment contract should be governed by the law most favourable to the worker; in the absence of any agreement between the parties, the contract should be governed by the law that has the strongest ties to the contract, which in this case is Israeli law; the judgment of the National Labour Court is contrary to public policy; the judgment of the National Labour Court is discriminatory in that Palestinian workers and Israeli workers who do the same work receive different wages and employment benefits.

 

Held: The contracts in this case do not contain any express statement of the parties’ intentions as to the law that should govern their employment relationships. Therefore, the law governing the contracts should be decided in accordance with the ‘strongest ties’ test. In applying this test, the territorial criterion has less weight in the Israeli enclaves in the occupied territories, where more than one set of laws operate. Consequently, the weight of the other ties and of the principles of the legal system becomes greater when choosing the applicable law.

The circumstances of the case lead to the conclusion that the employment relationships are more closely connected with Israeli law than with Jordanian law.

This conclusion is also supported by the principles of substantive employment law, for which the choice of law is required. The principle of equality, which is a fundamental principle of employment law, demands that the same law govern both Israeli and Palestinian workers who work in the same place. Applying different sets of laws for Israeli workers and Palestinian workers necessarily results in discrimination. The conflict of law rules were not intended to legitimize such an outcome.

There is no decisive significance to the question of what law will benefit workers the most.

 

Petition granted.

 

Legislation cited:

Administration of Local Authorities (Judaea and Samaria) Order (no. 892), 5741-1981.

Basic Law: Freedom of Occupation.

Basic Law: Human Dignity and Liberty.

Contracts (General Part) Law, 5733-1973, s. 26.

Equal Employment Opportunities Law, 5748-1988.

Equal Remuneration for Female and Male Employees Law, 5756-1996.

Proclamation Concerning Law and Administration  (Territory of the West Bank) (No. 2), 5727-1967, s. 2.

Law and Administration Arrangements Order (No. 1), 5727-1967.

Hours of Work and Rest Law, 5711-1951.

Protection of Wages Law, 5718-1958.

Women’s Employment Law, 5714-1954.

 

Israeli Supreme Court cases cited:

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

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

[3]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[4]        HCJ 2612/94 Shaar v. IDF Commander in Judaea and Samaria [1994] IsrSC 48(3) 675.

[5]        HCJ 61/80 Haetzni v. State of Israel (Minister of Defence) [1980] IsrSC 34(3) 595.

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

[7]        CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [2005] IsrSC 59(1) 345.

[8]        HCJ 205/82 Abu Salah v. Minister of Interior [1983] IsrSC 37(2) 718.

[9]        CA 419/71 Menorah Liability and Secondary Insurance Co. Ltd v. Numikos [1972] IsrSC 26(2) 527.

[10]     CA 352/87 Griffin Corp. v. Koor Sahar Ltd [1990] IsrSC 44(3) 45.

[11]     CA 165/60 Union Insurance Co. Ltd v. Moshe [1963] IsrSC 17 646.

[12]     CA 750/79 Klausner v. Berkovitz [1983] IsrSC 37(4) 449.

[13]     CA 300/84 Abu Atiya v. Arbatisi [1985] IsrSC 39(1) 365.

[14]     CA 5118/92 Altripi Laltahoudat Ala’ama Ltd v. Salaima [1996] IsrSC 50(5) 407.

[15]     HCJ 3512/04 Shezifi v. Interclub Ltd (unreported decision of 29 December 2004).

[16]     HCJFH 922/05 Shezifi v. Interclub Ltd (unreported decision of 20 March 2005).

[17]     CA 6601/96 AES Systems Inc. v. Saar [2000] IsrSC 54(3) 850.

[18]     HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330.

[19]     CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[20]     CA 239/92 Egged Israel Transport Cooperation Society v. Mashiah [1994] IsrSC 48(2) 66.

[21]     HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [2006] (1) IsrLR 105.

[22]     HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[23]     HCJ 114/78 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

[24]     HCJ 6698/95 Kadan v. Israel Land Administration [2000] IsrSC 54(1) 258.

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

[26]     HCJ 525/84 Hativ v. National Labour Court [1986] IsrSC 40(1) 673.

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

[28]     HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[29]     HCJ 608/88 Finkelstein v. National Labour Court [1989] IsrSC 43(2) 395.

[30]     HCJ 932/91 Central Pension Fund of Federation Employees Ltd v. National Labour Court [1992] IsrSC 46(2) 430.

[31]     HCJ 1199/92 Lusky v. National Labour Court [1993] IsrSC 47(5) 734.

[32]     HCJFH 4601/95 Serrousi v. National Labour Court [1998] IsrSC 52(4) 817.

[33]     HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [2003] IsrSC 57(3) 31.

[34]     HCJ 240/98 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [1998] IsrSC 52(5) 167.

[35]     HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[36]     HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[37]     HCJ 6924/98 Association for Civil Rights in Israel v. Government of Israel [2001] IsrSC 55(5) 15.

[38]     HCJ 663/78 Kiryat Arba Administration v. National Labour Court [1979] IsrSC 33(2) 398.

 

Israel National Labour Court cases cited:

[39]     NLC 42/2-13 Nordan Oil Services Ltd v. Mori [1982] IsrLC 13 368.

[40]     LabA 1372/01 Shezifi v. Interclub Ltd (unreported decision of 11 February 2004).

[41]     NLC 42/2-33 State of Israel v. Azoulay [1983] IsrLC 15 105.

[42]     NLC 37/3-71 Elite Israeli Chocolate Industry Co. Ltd v. Lederman [1978] IsrLC 9 255.

 

For the petitioners — A. Spinrad, N. Pinchuk-Alexander.

For the second respondent — B. Ablin, R. Plitt.

For the third respondent — Y. Amsalem.

For the fourth respondent — E. Shilony.

For the fifth respondent — R. Hadar-Barabash.

For the sixth respondent — E. Bentovim.

For the seventh respondent — Y. Peri.

For the eighth respondent — A. Rivlin.

JUDGMENT

 

 

Vice-President E. Rivlin

1.    Several inhabitants of Judaea and Samaria, who are not citizens of Israel (hereafter: the Palestinian workers) filed claims in the Regional Labour Courts against their Israeli employers, who conduct business in the occupied territories. During the hearings, a question arose as to whether the claims should be governed by Israeli law or the local law. The Labour Courts held that Israeli law applied. The National Labour Court (the honourable President S. Adler, the honourable Judges N. Arad and S. Tsur, Workers’ Representative S. Guberman and Employers’ Representative H. Dudai) heard the employers’ appeals jointly, and held that the law applicable to the employment contracts between the parties was the law that governs the occupied territories. The National Labour Court also held that the hearing of each case would be returned to the Regional Labour Courts for them to examine the provisions of the law applicable in the occupied territories and to clarify the need for subjecting the employment contracts to special provisions of Israeli law by virtue of the principle of public policy. The first petitioner, Kav LaOved Workers’ Hotline, is challenging these findings of the Labour Court on behalf of all the Palestinian workers.

The proceedings in the Regional Labour Courts

2.    Claims were filed in the Regional Labour Courts by the Palestinian workers, who were employed in the occupied territories by various employers: the Givat Zeev Local Council, Abir Textile Industries Ltd, Y. Zarfati Vehicle Services Ltd, Nituv Management and Development Company Ltd and Aqua Print Technological Toning Ltd (hereafter: the employers). The plaintiffs claimed that they were entitled to be paid the minimum wage, severance pay and various employment benefits, all of which in accordance with Israeli employment law. As stated above, the main question before the courts concerned the question of which law should apply to the employment relationships between Palestinian workers who are inhabitants of the occupied territories, and Israeli employers, when the place of work is in the ‘Israeli enclaves’ in the territories. In view of the intentions and expectations of the parties, an analysis of which law is most applicable to the contract, and the special characteristics of employment law that are regarded as part of the contract by virtue of public policy, the Regional Labour Courts reached the conclusion that in the aforesaid cases the plaintiffs should be subject to Israeli law, rather than the law in the territories.

The employers challenged this finding in the National Labour Court.

The judgment of the National Labour Court

3.    When it considered which law should apply to the employment contracts under discussion, the National Labour Court addressed the question of what law is applicable in the territories and the conflict of law rules with regard to contracts where the parties are subject to different legal systems. The National Labour Court held that, as a rule, in the absence of strong ties linking the contract to the law of another place, the employment agreement should be governed by the law that is applicable in the place where the work is done. The National Labour Court took as its starting point s. 2 of the Proclamation Concerning Law and Administration Arrangements (Territory of the West Bank) Declaration (no. 2), 5727-1967, which provides:

‘Validity of existing law

2.  The law that was in force in the territory on 28 Sivan 5767 (7 June 1967) shall remain in force, in so far as it does not conflict with this declaration or any declaration or order that will be made by me, subject to changes that derive from the establishment of the rule of the Israel Defence Forces in the territory.’

The court explained that, according to this section, the law that applies in the territory of Judaea and Samaria consists of the Jordanian law that governed this territory until 1967 and orders that have been made by the military commander of the territory from then until today. This law has been supplemented by provisions of Israeli internal statutes that have been applied individually to Israeli citizens that live in the territory of Judaea and Samaria, but not to the whole territory or to all of its inhabitants. From this the National Labour Court concluded that in the absence of a provision of statute that expressly applies Israeli employment law to the territory, the law in force is Jordanian employment law, as amended by the orders of the military commander. The National Labour Court therefore went on to examine the question of whether there were any legal rules that might justify imposing provisions of Israeli law to Palestinian workers that are employed by Israeli employers.

4.    Since there was no express provision in the employment contract itself with regard to the law governing it and since it was not possible to find any indication of the intentions of the parties in this matter by interpreting the agreement, the National Labour Court turned to consider all of the ties that link the parties to the occupied territories, on the one hand, or the State of Israel, on the other. The National Labour Court found that the ‘Israeli’ ties, such as the fact that the employer was Israeli, the payment of wages in Israeli currency, the fact that various documents concerning the employment were in Hebrew, the determination of rest days and holidays in accordance with accepted practice in Israel, and the payment of tax to the Israeli tax authorities (in one of the cases under consideration) were insufficient to tip the balance in favour of the contract being governed by Israeli law. On the contrary, the National Labour Court was of the opinion that the fact that the occupied territories were the place where the contract was made and where the main work was carried out, and the fact that all of the parties were inhabitants of the territories tipped the scales in favour of the contracts being governed by the local law in force in the territories. Since there was no express arrangement that applied parts of Israeli employment law to these workers, and since there were insufficient ties to link the contracts to Israel law, the National Labour Court reached the conclusion that there was no justification for applying Israeli employment law to the Palestinian workers. The National Labour Court therefore decided that each of the employment contracts under consideration was governed by the local law of the occupied territories.

5.    Notwithstanding, the National Labour Court held that when an Israeli court acquired jurisdiction to hear the case, it was entitled, and even obliged, to examine every provision of a contract that is governed by a foreign law from the perspective of the principle of public policy, and to refrain from enforcing a contractual provision if it is contrary to public policy. It held that applying the rules of public policy to a specific case is a matter that requires a careful consideration of facts and ethics for each norm that is being considered. This was not done in the Regional Labour Courts, and therefore the National Labour Court decided to return all of the cases to the Regional Labour Courts. With regard to the employers’ prima facie breach of their duty to treat all of their workers fairly and equally, the National Labour Court stated that the question should be considered separately. In so far as private employers are concerned, this question can be considered within the framework of the examination of the rules of public policy and the principle of good faith. Finally, the National Labour Court held that in the absence of an express provision, a collective agreement to which the Israeli employer is a party does not apply to workers who are inhabitants of the occupied territories.

The arguments of the parties

6.    The judgment of the National Labour Court lies at the heart of this petition. The petitioner claims that the employment contracts clearly show that the parties intended them to be governed by Israeli law. To the extent that the Givat Zeev Local Authority is concerned, the petitioner argues that where a government authority enters into a contract with another party, it is clear that Israeli law should apply. The petitioner further claims that in so far as a government authority is concerned, where the work was done in an Israeli ‘enclave’ in the territory of Judaea and Samaria, it is clear that the employer’s intention is that Israeli law should apply, and it is also clear that this is the workers’ expectation. The petition also claims that even if the applicable law is not expressly stated in the contract, the contract should be regarded as incorporating custom, by virtue of the provisions of s. 26 of the Contracts (General Part) Law, 5733-1973. The petitioner goes on to argue that the custom that prevails in the field of employment law is that the employment contract should be governed by the provision of law that is most favourable to the worker, and this custom should also be applied in the present case. The petitioner further claims that in the absence of any express or implied agreement between the parties, the contract should be governed by the law that has the strongest ties to the contract in the circumstances of the case, and in this case the ‘strongest ties’ test clearly indicates that this law is Israeli law, since the place where the negotiations between the parties took place is an Israeli enclave in the territory of Judaea and Samaria, the workers are far more closely associated with the Israeli government with regard to their work than they are associated with the Palestinian Authority, and the place where the agreement was made, the work was done and the breach was committed, as well as the currency used for payment, indicate the close ties to Israeli law.

The petitioner is also of the opinion that the findings of the National Labour Court conflict with the principle of public policy, according to which the workers should be subject to Israeli law, which benefits them, and its findings are contrary to the principles of justice that bind the courts. The petitioner also complains of the discrimination that results, in its opinion, from the decision of the National Labour Court. It claims that the discrimination is reflected in the fact that Palestinian workers and Israeli workers who do the same work receive different wages and employment benefits — all because of the different laws that are applied to them.

7.    The petitioner’s positions were supported, after the filing of the petition, by the New General Federation of Labour (hereafter: the General Federation of Labour). It emphasized in its closing arguments the importance of determining a single rule for the employment of Palestinian workers by Israeli employers in the Israeli towns in the occupied territories, and the advantages inherent in having a uniform bargaining standard. From a collective perspective, the General Federation of Labour insists that there is no moral or legal reason why non-Israeli workers should be excluded from the application of the collective agreements that bind the Israeli employer in an ‘Israeli enclave’ and his Israeli workers. According to the General Federation of Labour, no departure should be allowed from the principle of treating all the workers of one employer at a given plant uniformly, other than on the basis of legitimate class distinctions, and for this purpose a distinction on the basis of nationality of country of origin between citizens, residents and ‘foreign workers’ cannot be justified.

8.    The second respondent, which is the Givat Zeev Local Council, claims that the petitioner’s objections were considered extensively by the National Labour Court, even if the petitioner was not the party that raised then in that forum, and there is no adequate justification for the intervention of the High Court of Justice, as a third instance, in the decision of the National Labour Court. On the merits, the Givat Zeev Local Council relies on the judgment of the National Labour Court and argues that there is no real concern of harm to the Palestinian workers, since the judgment guarantees an individual examination of each of their claims in accordance with the principle of public policy. The second respondent also claims that Israeli employment law was not applied by the legislature to the territory of Judaea and Samaria, and that we are not dealing with a situation of a conflict of laws at all. In any case, it claims that the ‘strongest ties’ test does not lead to the contract being governed by Israeli employment law.

9.    The attorney-general agrees with the position of the Givat Zeev Local Council; he too is of the opinion that there is no justification for any intervention in the findings of the National Labour Court. On the merits of the matter, the attorney-general claims that where there is no contrary stipulation, the employment of a Palestinian who is a resident of the occupied territories is governed by the local law, and as a rule the Israeli ties of the employer does not result, under the ‘strongest ties’ test, in the applicability of Israeli employment law, unless this is justified by virtue of the principle of public policy. The attorney-general also seeks to emphasize that ‘what the Israeli legislature or the military commander in the territories have not done should not be done by resorting to the rules of private international law, so that a kind of “back door” is used to apply Israeli private law to the Israeli towns in Judaea and Samaria.’ This interpretation is unfounded, as we shall explain later.

10. The fifth respondent, Abir Textile Industries Ltd, relies on its arguments in the National Labour Court, and it supports the claim of the other employers that there is no basis for any intervention in the judgment. The seventh respondent, Nituv Management and Development Company Ltd, also argues that there is no reason for any intervention in the findings of the National Labour Court, and it emphasizes in its pleadings the distinction between a public employer and a private employer. In doing so it argues that private employers who have set up or moved their businesses to the occupied territories relied on the cheaper cost of labour because of the applicability of Jordanian employment law. The eighth respondent, Aqua Print Ltd, which was a party to a settlement in the previous proceeding, was joined as a respondent but chose not to present any further argument. The sixth respondent, Y. Zarfati Vehicle Services Ltd, gave notice that it had no interest in participating in the proceeding.

The local normative framework — the law of the enclaves

11. This court has held in a host of judgments that the territories of Judaea and Samaria are subject to a belligerent occupation of the State of Israel, with all that this implies from the viewpoint of the applicable law:

‘Judaea and Samaria are subject to a military or a belligerent occupation by Israel. Military rule has been established in the territory, for which a military commander is responsible. The powers and authorities of the military commander derive from the rules of public international law relating to a military occupation. According to the provisions of these rules, all the executive and administrative powers are held by the military commander… Some of these powers derive from the law that prevailed in the territory before the military occupation, and some derive from new legislation, which was enacted by the military commander… In both cases the exercise of authority should comply with the rules of public international law relating to a military occupation, and the principles of Israeli administrative law relating to the exercise of executive authority by a civil servant’ (HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1], at p. 792; see also HCJ 1661/05 Gaza Coast Local Council v. Knesset [2], at pp. 558-559; HCJ 7957/04 Marabeh v. Prime Minister of Israel [3], at para. 14 of the opinion of President A. Barak).

Thus it has been held that the judicial and administrative jurisdiction of the State of Israel has no application in the territory of Judaea and Samaria (see for example HCJ 2612/94 Shaar v. IDF Commander in Judaea and Samaria [4], at p. 681). Indeed, for years the State of Israel has consciously refrained from applying Israeli law to the territories of Judaea, Samaria and the Gaza Strip (see, by contrast, the Law and Administration Arrangements Order (No. 1), 5727-1967, which applies the ‘law, jurisdiction and administration of the state’ to East Jerusalem). Indeed, from the arrangement provided in s. 2 of the Proclamation Concerning Law and Administration Arrangements (no. 2), 5727-1967, it can be seen that there are two main elements of the legislation applicable to the Palestinian inhabitants of the territories: one element is the law that was in force in the occupied territories until 1967, and in the case of Judaea and Samaria this is Jordanian law; the other element is the orders made by the area commander, which serve as primary and subordinate legislation in the territories. This normative position is also consistent with the outlook of customary international law with regard to the law applicable in a territory that is held under a belligerent occupation, as laid down in article 43 of the regulations appended to the Fourth Hague Convention Respecting the Laws and Customs of War on Land, 1907 (without considering the question of the status of the Hashemite Kingdom of Jordan in the West Bank prior to the occupation of the territory by the Israel Defence Forces and the question whether Jordanian law satisfies the tests of constitutionality accepted in public international law — see HCJ 61/80 Haetzni v. State of Israel (Minister of Defence) [5], at pp. 597-598; see also E. Zamir and E. Benvenisti, Jewish Land in Judaea, Samaria, the Gaza Strip and East Jerusalem (1993)).

The law is different for Israeli inhabitants of the occupied territories. They are subject to a different legislative element, which is known as ‘the enclave law’ and includes Israeli internal legislation that was applied on a personal basis solely to persons living in the territories that are Israeli citizens or entitled to become Israeli citizens. This was discussed by the learned A. Rubinstein and B. Medina:

‘Over the years a clear distinction has been made between the law applicable to Israeli settlers and the law applicable to the local inhabitants. Beyond the personal application of various provisions of law to the inhabitants of the settlements in Knesset legislation, there have also been acts of legislation of the military administration that apply solely to Jewish settlements’ (A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol. 2, fifth edition, 1996), at p. 1181, and see also the new version of the book (vol. 2, sixth edition, 2005), at pp. 927-928).

Elsewhere Rubinstein has clarified that —

‘A resident of Maaleh Adumim, for example, is prima facie subject to the military administration and local Jordanian law, but in practice he lives subject to Israeli law both from the viewpoint of his personal law and from the viewpoint of the local authority in which he resides. The military administration is merely a remote control, through which the Israel law and government operate’ (A. Rubinstein, ‘The Changing Status of the Occupied Territories,’ 11 Tel-Aviv University Law Review (Iyyunei Mishpat) 439 (1986)).

Indeed, the legal system that applies to the inhabitants of the territories — Israelis alongside Palestinians — is unique and complex. Within this framework, and for the purpose of the decision in the case before us, it is important to distinguish between the systems of public international law and private international law that apply to the area in general and to the employment contracts under consideration in particular.

Conflict of laws in the occupied territories between public and private international law

12. There is no dispute that with regard to the occupied territories the courts in Israel are subject to the provisions of the Proclamation Concerning Law and Administration Arrangements (Territory of the West Bank) (no. 2), 5727-1967, and the rules of customary public international law (HCJ 785/87 Afu v. IDF Commander in Gaza Strip [6], at pp. 35, 76). Notwithstanding, we have held in the past that ‘this alone cannot prevent the court from applying Israeli law to events that occur in the occupied territories, where such an application is required in view of the rules of private international law’ (CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [7], at p. 356). In other words, whereas public international law determines the local law — i.e., which law will apply, as a rule, in the geographic area of ‘the territory of Judaea and Samaria’ — private international law determines which law will apply in a given case of a dispute in the field of private law. In our case, public international law and the provisions of the Proclamation Concerning Law and Administration Arrangements (Territory of the West Bank) Declaration (no. 2), 5727-1967, provide, as a starting point, that as a rule the law applicable in the territory of Judaea and Samaria, including the ‘Israeli enclaves’ in that territory, is the law of the Hashemite Kingdom of Jordan that was in force on the date when the territory was occupied by the Israel Defence Forces. But this alone does not necessarily mean that the rules of private international law provide that the employment contracts in this case are indeed governed by Jordanian law. In order to determine the issue before us, there is no real significance to the fact that the vast majority of Israeli employment law has not been applied to the occupied territories or to the ‘Israeli enclaves.’ The decision regarding the law of contracts in this case will be made in accordance with the conflict of law rules accepted in private international law, as interpreted by the court. In this regard we should emphasize that although the conflict of laws process takes place at a kind of ‘international junction of law,’ every sovereign state is entitled to formulate the conflict of law rules that it will apply. In practice, most Western legal systems have formulated the conflict of law rules in accordance with several general theories (see M. Karayanni, The Influence of the Conflict of Law Process on International Jurisdiction (2000), at pp. 45-48).

For the sake of completeness, we should clarify that a decision within the context of the conflict of law rules that a given contract that was made in the occupied territories or to which one of the parties is an inhabitant of the occupied territories is governed by Israeli law does not, in itself, affect the sovereign status of those territories. We have said in the past ‘that the mere application of a certain Israeli norm to a place outside the State of Israel does not necessarily make that place a part of Israel’ (HCJ 205/82 Abu Salah v. Minister of Interior [8], at p. 720).

We should now turn to examine the law applicable to the employment relationship in the cases before us. We should first explain that Israeli law has not yet expressly adopted any conflict of law principles with regard to employment relations (but see NLC 42/2-13 Nordan Oil Services Ltd v. Mori [39]). Therefore, we shall first review the conflict of law rules in the contractual sphere in general, and subsequently we shall examine the specific applicability of these rules to employment relations.

Conflict of laws in the contractual sphere

13. In Israel there is no general legislation that regulates the subject of the conflict of laws in private law. Although there are several specific statutory provisions that regulate the conflict of laws in various areas, the sphere of the law of contracts has not been expressly regulated by the legislature (but see A. Levontin, Conflict of Laws — Proposed Legislation with Introduction and Brief Explanatory Notes (1987), which proposed a model whereby the conflict of laws in the contractual sphere should be based on the consent of the parties to the contract, and in the absence of such consent, an examination should be made with regard to the proximity of the contract to a certain set of realities and circumstances and an objective test should be applied to determine which law should apply (for details, see p. 32)). In such circumstances, as in most countries around the world, it is the court that is required to formulate the conflict of law rules that will apply, which it does by taking into account the conflict of law policy and the basic principles of the substantive law of that legal system (for a comprehensive discussion, see L. Brilmayer, ‘The Role of Substantive and Choice of Law Policies in the Formation and Application of Choice of Law Rules,’ 252 Collected Courses (1995)).

14. The basic principle in the law of contracts — a respect for the individual will of the parties in order that they may realize their ‘legitimate expectations’ — also lies at the heart of the conflict of law rules concerning contracts. Therefore, as a rule, the law of the contract is the law that the parties agreed should govern their conduct. But if the parties have not revealed their intentions, a need arises to determine ‘the law to which the transaction has the strongest and most tangible ties’ (CA 419/71 Menorah Liability and Secondary Insurance Co. Ltd v. Numikos [9], at p. 531). For this purpose, focusing on a certain factual connection, such as the place where the contract was made or the place where it was performed, and applying the law of that place, may result in a simple and clear solution, but in Israel, as in most Western legal systems, a broader and more flexible test is now accepted for identifying the law that governs the contract. This test —

‘… is made in accordance with several factors, of which the most important is the express intention of the parties. The absence of an express intention makes it necessary to discover the intention of the parties by means of objective criteria. In other words, the goal is to discover which legal system served as the basis for making the contract; it is the system to which the transaction has the closest ties’ (CA 352/87 Griffin Corp. v. Koor Sahar Ltd [10], at p. 62).

To this end, each contract should be examined according to its circumstances, on the basis of objective criteria, such as the place where the contract was made, the place where it was performed, the identity of the parties to the contract, the language of the contract, the currency of the contract, etc. (see Griffin Corp. v. Koor Sahar Ltd [10], at pp. 62-63, 70-71; see also CA 165/60 Union Insurance Co. Ltd v. Moshe [11], at pp. 652-659). In addition to specific criteria found in the actual contract, it is possible in appropriate cases to resort, as suggested by the learned A. Levontin, to an examination of objective criteria:

‘The law of the contract is the law that the parties adopted jointly, whether in an express choice or by implication, as the law that applies to the contract between them.

If the parties did not adopt a law for the contract as aforesaid, they may be presumed to have conducted business in accordance with the reality and circumstances with which a contract of the kind that they made is most closely associated; and what is accepted and customary in that reality and in those circumstances will serve, in so far as it is applicable, as the law of the contract’ (Levontin, Conflict of Laws — Proposed Legislation with Introduction and Brief Explanatory Notes, supra, at p. 1 (para. 2)).

15. Many Western countries have followed a similar course. Thus the status of the territorial approach, which had a central role in forming the conflict of law rules in common law and in Continental law until the middle of the twentieth century, has become somewhat eroded, because of the inflexibility of this approach and because sometimes the connection between the contract and a certain territory, such as the place where the contract was made, is not of great significance (see also Karayanni, The Influence of the Conflict of Law Process on International Jurisdiction, supra, at pp. 51-52). Main examples of the flexible modern approach can be found in articles 3 and 4 of the EC Convention on the Law Applicable to Contractual Obligations, 1980 (hereafter: the Rome Convention), which proposes a conflict of law arrangement for contracts within the European Union, and in sections 6 and 186-188 of Restatement of the Law (2d), Conflict of Laws, which regulates the conflict of law rules for contracts in the United States (see also L. Collins (ed.), Dicey & Morris on the Conflict of Laws (thirteenth edition, 2000), at pp. 1195-1250).

A study of these rules shows a clear legal trend that in the absence of any consent between the parties with regard to the law that will govern the contract, every specific issue or provision in the contract will be governed by the law of the state that has the strongest ties to that issue. Admittedly, in the Rome Convention and the Restatement the territorial connection is given real significance, but the general trend that can also be seen from these documents is that the ‘centre of gravity’ of the legal relations will be determined on the basis of a combination of all of the contract’s ties, and the country with the strongest ties to a given dispute will be regarded as the country whose law applies. This trend allows a degree of flexibility to be introduced into the conflict of law process; it gives the court a margin of discretion in determining the applicable law, while at the same time it prevents a mechanical selection process.

16. It should be pointed out in this respect that the advantages of the ‘strongest ties’ approach, as a principle that allows flexibility and justice in choosing the law that will apply in each case, have also been discussed in Israeli case law with regard to the conflict of laws in other contexts, and especially with regard to torts (see Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [7], and the remarks of Justices M. Ben-Porat and M. Bejski in CA 750/79 Klausner v. Berkovitz [12], the remarks of Justice T. Strasberg-Cohen in CA 300/84 Abu Atiya v. Arbatisi [13], and the remarks of Justice T. Or in CA 5118/92 Altripi Laltahoudat Ala’ama Ltd v. Salaima [14]). In Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [7], we preferred a territorial conflict of law rule (the place where the tort was committed), but we held that there would be an exception that would allow the choice of law to be made in accordance with other ties where this was required by considerations of justice. The differences between the law of torts and the law of contracts tip the scales in favour of greater flexibility in the contractual sphere, in the sense that the territorial connection should not be held to be the rule, but in each case the court should examine all of the ties according to their nature and their relative weight in the circumstances of the case.

As a matter of policy, it would appear that there are various reasons why the territorial connection should not be regarded as an independent conflict of law rule or as an exclusive and decisive element of the conflict of laws in the contractual sphere. In this context, we should examine the connection between the obligation and a particular territory against the background of the distinction between a voluntary obligation and an involuntary obligation. Thus it would appear that an involuntary obligation that arises from the commission of a tort is usually more closely connected with the place where the tort was committed, since by its very nature it is not the result of any planning or a joint intention or expectation of the parties, and its circumstances are usually random. We have therefore held, as stated above, that in the tortious sphere we should adopt the law of the place where the tort was committed as the ideal conflict of law rule, subject to an exception ‘that will allow the law of the place where the tort was committed not to be applied where considerations of justice so demand’ (Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [7], at p. 374). It was held in that case that the rule — the principle of territoriality — was justified because it provides a solution to the need to maintain public order in the territory of the countries that are involved, and it is also usually consistent with the expectations of the parties and creates certainty. Notwithstanding, it was also held that in cases where it is found that the connection of a given country to the tort is significantly stronger than the connection of the country where the tort occurred (and consequently the place where the tort was committed becomes incidental), the aforesaid exception is likely to apply.

17. By contrast, a voluntary obligation in a contract is not necessarily tied to the place where it was made or where the contract is performed, and therefore to the law of those places, but by virtue of other ties it may involve another law, and in any case it is subject to the apparent intentions of the parties. This gives rise to the approach that when considering the law that will apply to a contract, all of the relevant ties should be considered. All of this is naturally subject to the policy considerations underlying the legal system and the relevant legal subject-matter. The burden of proving the existence of a certain connection rests with the party claiming that it exists, and the proof of the connection is made on a qualitative basis rather than a quantitative one (see also P. Kaye, The New Private International Law of Contract of the European Community (1993), at pp. 236-237).

This approach to the conflict of law process in contracts is dictated by modern realities, which are characterized by extensive social and commercial mobility, which allows the existence of global activity and of transnational relations that result in the making of contracts that have a connection with more than one legal system, in which the territorial element is not of decisive significance. In addition to the fact that the connection to the place where contracts in general, and transnational contracts in particular, are made is not necessarily the strongest connection, contracts also frequently involve public (national and international) interests and various private interests, which should be taken into account when deciding which law will apply (see also A. Shapira, ‘Comments on the Nature and Purpose of the Conflict of Law Rules in Private International Law,’ 10 Tel-Aviv University Law Review (Iyyunei Mishpat) 275 (1984), at p. 276). Already at this point we should emphasize that the weight of the public and private interests increases when we are speaking not merely of any contractual arrangement, but of employment relations, which are naturally based not only on the contractual consents of the parties but also on employment law (which the parties cannot contract out of). This is also of significance for the purpose of the conflict of law process, as will be explained below.

Indeed, the development of commerce requires the formulation of conflict of law rules that are consistent with this new reality. Thus, for example, the difficulty in relying on the territorial connection alone for the purpose of choosing the law is exemplified by the spread of the phenomenon of entering into contracts via the Internet, where the place of the negotiations, the place where the contract is made, the place where the parties reside, and the place where the obligation is performed may be incidental and possibly even ‘virtual.’ It is therefore unsurprising that in such a framework these connections will, in certain cases, lose their weight and practical significance (see also in this regard Y. Bar-Sadeh, The Internet and Online Commercial Law (1998), at pp. 48-51). As we said above, a survey of American and European law also shows a general approach that the territorial connection, such as with the place of making or performing the contract, is not the entirety of the matter, and it should be considered against the contract’s other ties — ties that can lead to the application of the law of another country to the employment contract.

18. Moreover, the purposive doctrine that characterizes the modern conflict of law process necessitates a consideration of additional factors beyond the contract’s direct ties — factors that are capable of guaranteeing a proper and desirable outcome with regard to the choice of the applicable law (see, for example, s. 6(2) of the Restatement, the remarks of Karayanni, The Influence of the Conflict of Law Process on International Jurisdiction, supra, at pp. 52 and 234-237, and F.K. Juenger, Choice of Law and Multistate Justice (1993), at p. 191). In this context, modern private international law indicates an inclination to attach considerable weight, within the framework of the conflict of law process, to general policy considerations and principles that lie at the heart of the substantive law whose application is being considered. This was discussed by the learned M. Karayanni:

‘According to the methodology that currently characterizes the conflict of law rules, the aspiration is to formulate purposive rules that aim to reach just results. One of the declared purposes of this approach is the replacement of the traditional conflict of law rules, which sought to rely on mechanical formulae and in many cases led to unjust outcomes. The purpose of the modern methodology of the conflict of law rules is to be aware of and take into account every factor that can be relevant to the choice of law process, including the normative interest of the forum, in order to guarantee that just decisions are made’ (Karayanni, The Influence of the Conflict of Law Process on International Jurisdiction, supra, at p. 233; see also Brilmayer, ‘The Role of Substantive and Choice of Law Policies in the Formation and Application of Choice of Law Rules,’ supra, at pp. 60-97).

The essence of the matter is that the accepted conflict of law test for the law of contracts is the consent of the parties, or in the absence thereof, the ‘strongest ties’ test, where the result of the test may be affected by wider policy considerations that serve general normative interests. When applying the test, the nature and weight of the ties that are examined may naturally vary in accordance with the specific laws whose application is being considered and in accordance with the special circumstances of a given contract. As a rule — and we are not intending to set out a comprehensive list — it would appear that the contract’s ties to a given law should be examined with a view to the place where the contract was made, the place where the negotiations took place before the contract was made, the (only, main or usual) place where the contract is performed, the identity of the parties to the contract (including their place of residence, citizenship, incorporation and business activity), the language of the contract, the payment currency, the place where taxes are paid and the intention of the parties with regard to the conflict of laws in other aspects of their relationship. In identifying these ties and determining their weight, there is no reason why the court should not take into account general policy considerations of the legal system and the fundamental principles of the contractual sphere for which the choice of law is required. In the absence of concrete ties, the court may resort to objective ties of the contract, namely the law that is applied to similar contracts, between similar parties and in similar circumstances.

The conflict of laws and employment relations

19. As a rule, the ‘strongest ties’ test that we have discussed is also a proper test for choosing the law relating to employment relations. Thus, for example, in the American Restatement rules the employment contract is not excluded from the application of the rules listed in ss. 6 and 186-188, which concern contracts in general. Notwithstanding, we cannot ignore the fact that the employment contract is not an ‘ordinary’ contract, and employment law is a separate discipline from the law of contracts. Indeed, in most countries around the world these is a greater or lesser degree of regulation in employment relations, and this also has a real and important effect on the conflict of law rules regarding employment contracts. Article 6(2) of the Rome Convention, for instance, provides special conflict of law rules for the personal employment contract (the article does not apply to collective agreements), according to which, as a premise, a territorial conflict of law rule will apply to employment relations (the place where the work is carried out or the employer’s place of residence), unless most of the objective and subjective ties of the contract connect it with the law of another country with which the contractual relationship has a closer and more realistic connection (see also Dicey & Morris on the Conflict of Laws, supra, at pp. 1303-1322). In any case, it is clear that in view of the unique nature of employment law, the conflict of law rules that apply to employment relations should be adapted to the subject-matter of the substantive law in this field.

In Israeli law employment relations have an internal contractual element and an external element that the parties cannot contract out of, where the former is subject to the latter. The rights and liabilities of the parties to an employment relationship are not determined merely by the employment contract itself. They are also subject to external involvement in the internal contractual relationship of the parties: binding protective legislation, collective employment law, public policy and general principles of justice. Israeli law has assimilated the approach that the expectations of the parties and their consents in the employment contract are subject to an external legal framework that overrides them (even if there is no complete consensus as to the manner in which the binding rules influence the consents between the parties; see LabA 1372/01 Shezifi v. Interclub Ltd [40], and the petition to the High Court of Justice and the further hearing that were denied in HCJ 3512/04 Shezifi v. Interclub Ltd [15] and HCJFH 922/05 Shezifi v. Interclub Ltd [16]). This approach also has an effect on the conflict of law rules in the field, especially in the sense that when applying the ‘strongest ties’ test the weight of the various ties should be adapted to the fundamental concepts of employment law, and the cumulative weight of the ties should be examined in accordance with the working assumption that the consents between the employee and the employer are not the entirety of the matter. The National Labour Court addressed this when it examined the law applicable to employment contracts between an Israeli employer and employee that were supposed to be performed beyond the borders of the State of Israel:

‘… This viewpoint leads us to the main question in the field of the conflict of laws, which is unique to employment law or whose weight is particularly great in the field of employment law. The question is whether the applicable law should be determined exclusively in accordance with the rules that apply to the law of commercial contracts…

Those who refrain from speaking of a concept of an “employment contract” do so because of the ever-increasing weight of legal norms that regulate the relationship between an employee and an employer, which do not originate in the “wishes of the parties” but in the wishes of the legislator or the parties to collective relationships… The aforesaid is not relevant to every country, but it does apply to Israel. From the time of the first employment statute, the Knesset has refrained from using the term “employment contract” and has preferred the concept of “employee-employer relations.” The departure from the common expression certainly had a reason, and this remains true today’ (Nordan Oil Services Ltd v. Mori [39]).

20. Like the general trends in the field of the conflict of laws, which allow the courts in the country of the forum to consider, within the context of the conflict of law process, the policy, principles, purposes and public interests underlying the rules being examined (see also Shapira, ‘Comments on the Nature and Purpose of the Conflict of Law Rules in Private International Law,’ supra, at pp. 291-293), the determination of the conflict of law rules in the field of employment law is also not the result of mere technical criteria that take into account the different elements of the employment relationship. The principles, purposes and public interests underlying the concept of the ‘employment contract’ should also be taken into account, as well as the accepted subordination of the employment contract to the binding set of rights and liabilities. This legal policy, which involves complex social and ethical decisions with regard to what is desirable and proper in employment relations, also influences the conflict of law rules in this field. Therefore, when examining the various ties of the employment relationship within the context of the ‘strongest ties’ test, the relevance of each tie should be considered not only against the background of the facts of the specific case, but also with reference to the policy underlying the legal rule whose application in the circumstances of the case is under consideration.

21. Within this framework, and in view of the binding provisions of legislation in the field of employment law, there is no doubt that the ties based on the consent of the parties are likely to have less weight where the consent is inconsistent with the principles of employment law. In exceptional cases, it is possible that certain ties will not be taken into account at all. The weight of the ties arising from the language of the employment contract, in so far as it is drafted by the employer, should be reviewed in light of the outlook that there is a disparity of forces between the employee and the employer, subject to the circumstances of the concrete case. Where there is a lack of clarity or a lacuna in the contract with regard to the express or apparent intentions of the parties, the ‘strongest ties’ test should be influenced by the principle of equality — equal wages and employment conditions for the same or effectively the same work, whether the employees are men or women, parents or not parents, Jews or Moslems, Israelis or Palestinians. This influence may be realized by means of the principle of public policy (see, for example, CA 6601/96 AES Systems Inc. v. Saar [17], and the remarks of President Barak in HCJFH 4191/97 Recanat v. National Labour Court [18], at p. 370, and in the appropriate circumstances, also with regard to private employers; see also the remarks of Justice A. Barak in CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [19], at pp. 530-532; CA 239/92 Egged Israel Transport Cooperation Society v. Mashiah [20], at pp. 71-73; A. Barak, ‘Protected Human Rights and Private Law,’ The Klinghoffer Book of Public Law (Y. Zamir, ed., 1993) 163; N. Cohen, ‘Equality vs. Freedom of Contracts,’ 1 HaMishpat 131; R. Ben-Israel, Equal Opportunities and the Prohibition of Work Discrimination (vol. 1, 1998), at pp. 255-259); it may also be realized by virtue of a basic principle of the substantive law whose application is being considered (see, inter alia, the Equal Employment Opportunities Law, 5748-1988; the Equal Remuneration for Female and Male Employees Law, 5756-1996; NLC 42/2-33 State of Israel v. Azoulay [41], at p. 113; NLC 37/3-71 Elite Israeli Chocolate Industry Co. Ltd v. Lederman [42]; Ben-Israel, Equal Opportunities and the Prohibition of Work Discrimination, supra; and it may also be realized as a part of a basic principle of the forum law (see, for example, HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [21], at para. 13 of the opinion of President A. Barak; see also HCJ 98/69 Bergman v. Minister of Finance [22]; HCJ 114/78 Burkan v. Minister of Finance [23], at p. 806; HCJ 6698/95 Kadan v. Israel Land Administration [24]; HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [25], at p. 415). A violation of equality in the field of employment law can also constitute a violation of rights protected by the Basic Law: Human Dignity and Liberty and rights protected by the Basic Law: Freedom of Occupation.

22. The influence of the substantive law whose application is being considered and of the policy and fundamental principles that lie at the heart of the legal system on the conflict of law rules is also accepted in comparative law. Thus, article 6(2) of the Rome Convention has been interpreted as seeking to protect the (at least ostensibly) weaker party to a contract against attempts to prevent the application of the most appropriate protective law in the circumstances of the case, and there are those who have gone so far as to interpret the rule as a principle that was intended to allow the worker to rely on the provisions of law that will give him the broadest protection, even if this protection is based on more than one legal system (see Kaye, The New Private International Law of Contract of the European Community, supra, at p. 221, and Dicey & Morris on the Conflict of Laws, supra, at p. 1304). The Restatement also allows the court, when deciding which law should apply in the absence of a conclusive provision of statute, to take into account general policy considerations, and, as can be seen from s. 6(e), considerations relating to the field of substantive law with regard to which the choice of law needs to be made:

‘a) the needs of the interstate and international systems,

b) the relevant policies of the forum,

c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issues,

d) the protection of justified expectations,

e) the basic policies underlying the particular field of law,

f) certainty, predictability and uniformity of result, and

g) ease in the determination and application of the law to be applied.’

23. In summary, the conflict of law rule that applies to employment relations is influenced by the two foundations on which this field stands — the contractual foundation and the binding legislative foundation. The application of the ‘strongest ties’ test is influenced by the basic principles of employment law and the fundamental principles of the legal system, both internally, by identifying the relevant ties and giving proper weight to the ties being considered, and externally, by virtue of the principle of public policy and a constitutional scrutiny of the rights of the parties. Therefore, in an employment relationship where the parties have made no express agreement with regard to the law that will apply in their case, the court will apply the ‘strongest ties’ test in order to identify the law that will apply, in view of the aforesaid principles. It may be possible — but we do not need to discuss this at the present time — that in the field of employment relations there may be exceptional cases in which a certain consent of the parties will not in itself determine the question of the conflict of laws.

From general principles to the specific case

24. In our case, the contracts that were made do not contain any express statement of the parties’ intentions with regard to the identity of the law that governs the relationship between them. In the many documents that the parties filed, neither the Labour Court nor we were referred to any stipulation in a contract that expressly provides that one law or another governs the employment relationship between the parties. As a rule, in the absence of any expression of the parties’ intentions, the territorial connection would lead to the conclusion that the law that governs the Palestinian workers is Jordanian law, since the place where the Palestinian workers are employed is situated in the occupied territories. But, as stated above, the territorial test does not stand on its own, and the general position of the respondents, who sought to rely on the territorial connection to the place where the work is carried out as the sole and decisive tie, should certainly not be accepted. The place where the work was carried out, which is the immediate territorial connection of the employment relationship, should be considered together with the various ties that are examined within the framework of the ‘strongest ties’ test in this regard. In view of the principles of employment law that we have already discussed and in view of the special legal status of the ‘Israeli enclaves,’ which we shall address below, the ‘strongest ties’ test leads to the conclusion that the employment relationship under consideration should be governed by Israeli employment law.

25. No one disputes that the Givat Zeev Local Council, as well as the local authorities where the other employers (Israeli companies whose production plants are situated in the territories) operate, are Israeli enclaves in Judaea and Samaria. These authorities are listed in the schedule to the Administration of Local Authorities (Judaea and Samaria) Order (no. 892), 5741-1981 (Amendment of 20 July 1989 Order) (except for one employer whose production plant is situated in the ‘Barkan’ Industrial Zone, which lies within the jurisdiction of the Samaria Regional Council), and they are Israeli local authorities according to law. The negotiations between the Palestinian workers and the employers with regard to their terms of employment took place in these ‘Israeli enclaves,’ and the contract was performed there. These territorial ties require a comprehensive study of the legal position that prevails in the ‘Israeli enclaves,’ and the effect that this position has on choosing the law that will apply.

In other words, in the circumstances of the case before us, because of the identity of the parties and because of the geographic location in which the dispute took place, we should consider the unique nature of the legal position in the occupied territories and the ‘Israeli enclaves.’ Within the framework of the examination of the territorial connection, the conflict of law process should also take into account the special legal position that prevails in the place where the employment contract is made or performed, i.e., the ‘Israeli enclaves.’ From a theoretical viewpoint, basing the choice of law on a territorial factor relies on the assumption that a given territory has only one law, so that the individual develops a clear expectation with regard to which law will govern his transactions there. But in the case of the ‘Israeli enclaves’ in the occupied territories, there is a complex reality and a multi-faceted legal position. The Israeli inhabitants living in those territories are subject to extensive parts of Israeli law, in addition to special legislation of the military commander that also applies solely to the Israeli inhabitants. The Palestinian inhabitants who live in the very same territories are subject to Jordanian law and to the legislation of the military governor that applies to them (see Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [7], at pp. 378-379). Thus we see that in the case before us the law of the place where the work was performed is not uniform and does not depend merely on a territorial factor, but also on a personal factor. This outcome creates a situation in which different sets of laws operate in one territory and the ordinary expectations of the parties with regard to the law that will govern their actions has less weight. It may be, however — and we shall return to this later — that we can identify an expectation that certain workers will not be discriminated against, with regard to their rights, in comparison to their colleagues who are carrying out the same work, simply because the former are governed by different laws than the latter. Moreover, the legal character of the Israeli settlement as an ‘enclave,’ which is not de facto subject to the general law that governs that territory, weakens to a certain extent the connection between the place where the work is being carried out and the law that applies to the work contract. We discussed this in Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [7], and what we said is also pertinent to this case:

‘In view of the unique legal reality that exists with regard to the Israeli settlements situated in the occupied territories, the reasons underlying our choice of the rule that the law that governs a tort is the law of the place where it was committed do not apply. The rule was not intended to operate in such a reality, which is in no way similar to the framework in which the rule operates in the world of Western law.

…

The legal position in the Israeli settlements in the occupied territories is an exception to the territorial principle, and this exception is what justifies the need to apply the exception to the rule that a tort should be governed by the law of the place where it was committed (ibid. [7], at pp. 378-379).

Indeed, the question of the character of the place to which the rules apply is a critical question, and appropriate weight should be given to the various relevant factors.

26. In our case, because of the nature of the territory under consideration, the weight of the territorial connection is lessened, so much so that it is difficult to choose which law is required by the connection to the place where the contract is performed. Thus, within the framework of the ‘strongest ties’ test, the cumulative weight of the other ties and of the principles of the legal system become greater when choosing the law that will apply. Within this context, we should take into account the fact that the workers were paid in Israeli currency, various documents concerning the employment, such as letters of dismissal, salary slips and time cards were written in Hebrew, the days of rest and religious holidays were determined in accordance with the usual practice in Israel, and in one case before us the worker even paid tax in Israel. Thus, these other circumstances strengthen the conclusion that the connection of the employment relationships under discussion to Israeli law is stronger than their connection to the Kingdom of Jordan and its laws.

This conclusion is also supported by the principles underlying the substantive law for which the choice of law is required, namely employment law. These principles lead to the presumption that, as a rule, in the absence of a clear consent between the parties, the aspiration should be that the choice of law will result in an identical and equal law applying in the field of employment relations to all the workers who have no relevant difference in that they carry out the same or effectively the same work. Just as the employment of a Palestinian worker, by virtue of the proper permits, in the territory of the State of Israel by an Israeli employer is governed — in the absence of any agreement to the contrary or any other significant ties — by Israeli law, so too Israeli law should also govern the employment of a Palestinian worker who is employed, with the proper permits, by an Israeli employer in an ‘Israeli enclave.’ There should be no discrimination between the two, just as there should be no discrimination between them and an Israeli worker who is employed by the same Israeli employer in the ‘Israeli enclaves,’ if he performs the same or effectively the same work. The contractual relationship has the same form. A distinction of a kind that relies on citizenship or nationality is inappropriate. It does not point to any relevant difference and it is not required by the circumstances. This is true of the Palestinian workers inter se and also of any distinction between Palestinian workers and Israeli workers. Applying two different sets of laws to workers who work together for the same employer will necessarily result in prohibited discrimination. The conflict of law rules for employment law were not intended to sanction such an outcome. These rules, which are formulated in a normative environment that is determined by the fundamental values of Israeli society and the basic principles of the whole community of nations, are intended to prevent inequitable employment patterns based on distinctions relating solely to the national and ethnic origin of the workers.

Consequently, in the special circumstances before us, there is no alternative but to hold that the law that should govern the employment relationships under discussion — which is the law that has the ‘strongest ties’ with the employment contracts — is Israeli law.

27. We should clarify and emphasize that in the case before us — as in any other case concerning the formulation of conflict of law rules — there is no decisive significance to the question of which law will benefit the petitioners (and therefore we also do not need to adopt, in our case, a broad interpretation that the worker is entitled to benefit from the maximum protection possible under the laws whose application is being considered). Indeed, the aspiration to better the petitioners’ wages and their employment benefits lay at the heart of this litigation, but, as stated above, it is not capable to deciding the question of the choice of law that governs the contracts.

Now let us turn to the question of the relief sought.

Intervention in the ruling of the National Labour Court

28. This court may intervene in the rulings of the National Labour Court when two conditions are satisfied: one is that there is a material legal mistake in the judgment, and the other is that justice requires our intervention (HCJ 525/84 Hativ v. National Labour Court [26]). The main consideration when examining whether there has been a ‘material legal mistake’ concerns ‘the nature of the problem, namely its general public importance or its unique legal significance or its general applicability and recurrence as a phenomenon in employment relations or its general effect on social processes and other similar considerations’ (ibid. [26], at pp. 682-683; see also HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [27]; HCJ 104/87 Nevo v. National Labour Court [28], at p. 767 {161}; HCJ 608/88 Finkelstein v. National Labour Court [29]; HCJ 932/91 Central Pension Fund of Federation Employees Ltd v. National Labour Court [30]; HCJ 1199/92 Lusky v. National Labour Court [31]; HCJFH 4601/95 Serrousi v. National Labour Court [32]).

It would appear that these two conditions are satisfied in our case. No one disputes that the question before us has wide-ranging ramifications for all of the workers that are employed in Israeli settlements in the occupied territories and that its solution affects the relationship between the Israeli employers in the territories on the one hand and both Israeli and Palestinian workers on the other. The issues in dispute give rise to legal questions that involve several branches of law, and especially the conflict of law rules and employment law. This case requires a clear statement of how the ‘strongest ties’ test should be formulated and applied in general, and in particular how it should be applied in the field of employment law in the reality that prevails in certain parts of the territories. Moreover, applying Israeli law to the Palestinian workers is necessitated by the principle of equality and by the fundamental purpose of eliminating improper discrimination in the work market. It is thereby based on the basic principles of the legal system. Justice therefore requires intervention in the conclusions of the National Labour Court.

I would therefore propose to my colleagues that we grant the petition and make an absolute order setting aside the judgment of the National Labour Court and holding that, in the circumstances of the cases before us, Israeli law governs the employment relationship between the Israeli employers and the Palestinian workers who are inhabitants of the territories.

 

 

President D. Beinisch

I agree.

 

 

Justice E.E. Levy

I agree.

 

 

Justice A. Grunis

I agree.

 

 

Justice M. Naor

I agree.

 

 

Justice E. Arbel

I agree.

 

 

Justice E. Hayut

I agree.

 

 

Justice S. Joubran

1.    I agree with the opinion of my colleague, Vice-President E. Rivlin, that the petition should be granted. As I shall clarify below, I accept the petitioners’ claim that the ruling of the National Labour Court creates discrimination between Palestinian workers and Israeli workers who are carrying out the same work but receiving different wages and employment benefits. I also agree that it is important to determine a uniform rule for the employment of Palestinian workers by Israeli employers in Israeli settlements in the occupied territories.

2.    The main question that we need to decide in this petition concerns the law that applies to a claim brought by workers, who are inhabitants of Judaea and Samaria but not Israeli citizens, against an employer that is a local authority listed in the schedule to the Administration of Local Authorities (Judaea and Samaria) Order (no. 892), 5741-1981 (hereafter: ‘the schedule’). I accept the analysis of my colleague the vice-president, from which it can be seen that in view of the special character of employment law, applying the ‘strongest ties’ test in our case leads to the conclusion that the petitioners’ employment contracts should be governed by Israeli law. Notwithstanding, because of the importance of the issue, I would like to emphasize several points that arise from the opinion of my colleague the vice-president with regard to the application of the principle of equality in this case.

3.    It is well known that this court has held on many occasions that the principle of equality is one of the most basic principles of the State of Israel. This court has held in the past that ‘the right to equality is one of the most important human rights. It is “the heart and soul of our whole constitutional regime” ’ (Bergman v. Minister of Finance [22], at p. 698 {18}). Indeed, ‘it is common knowledge that equality is one of the basic values of the state. It lies at the heart of social life. It is one of the pillars of democracy’ (see Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [25], at p. 415; HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [33], at p. 39). It is the supreme principle for the interpretation and implementation of statutes (HCJ 240/98 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [34], at p. 177).

In Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [21], I said inter alia that:

‘Of the essence of equality and the deleterious effect of discrimination it has been said that —

“… equality is a basic value for every democracy… it is based on considerations of justice and fairness… the need to maintain equality is essential for society and for the social consensus on which it is built. Equality protects the government from arbitrariness. Indeed, there is no force more destructive to society than the feeling of its members that they are being treated unequally. The feeling of inequality is one of the most unpleasant feelings. It undermines the forces that unite society. It destroys a person’s identity” (per my colleague Justice A. Barak in Poraz v. Mayor of Tel-Aviv-Jaffa [35], at p. 330).

In the same spirit it has been said that —

“… (True or perceived) discrimination leads to feelings of unfair treatment and frustration, and feelings of unfair treatment and frustration lead to envy. And when envy comes, good judgment is lost… We are prepared to suffer inconvenience, pain and distress if we know that others too, who are our equals, are suffering like us and with us; but we are outraged and cannot accept a situation in which others, who are our equals, receive what we do not receive” (per my colleague Justice M. Cheshin in C.A.L. Freight Airlines Ltd v. Prime Minister [36], at pp. 203-204).’

 Likewise, the Declaration Concerning the Aims and Purposes of the International Labour Organization of 10 May 1944 (the Declaration of Philadelphia) states that ‘labour is not a commodity,’ because of the international recognition of the need to respect human dignity, including equal opportunities in employment, as paramount measures of creating a proper employment environment:

‘The Conference affirms that —

(a) All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.’

This recognition constituted the basis for the later conventions of the International Labour Organization, which were adopted by the community of nations. Thus, for example, convention 111 of the International Labour Organization concerning the prohibition of discrimination in employment and occupations, which has been adopted by 141 countries, including the State of Israel on 12 January 1959, defined discrimination as follows:

‘Article 1

(1) For the purpose of this Convention the term “discrimination” includes —

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

…

(3) For the purpose of this Convention the terms “employment” and “occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.’

Discrimination (Employment and Occupation) Convention, 1958.

Similarly, the Universal Declaration of Human Rights enshrined the international recognition of the principle of equality between human beings and the prohibition of discrimination on the basis of national or social origin:

‘Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.’

Universal Declaration of Human Rights (10 December 1948).

4.    In our case, the decision of the National Labour Court gives rise to the result that the only difference between the Palestinian workers and the Israeli workers — with regard to the law that governs their employment contracts — is the fact that the Palestinian workers are Palestinians living in the Palestinian Authority, whereas the Israelis are citizens of Israel.

This distinction on the basis of national identity for the purpose of deciding the law that is applicable to the employment contracts is, in my opinion, inappropriate and amounts to prohibited discrimination. In my opinion, all of the workers of the local authority, whether they are Israeli or Palestinian, should be governed by the same law, which in this case is Israeli law. This will lead to an equitable result that makes no distinction on the basis of nationality, in the spirit of the values of the State of Israel and in accordance with the spirit of the Basic Law: Human Dignity and Liberty.

5.    It was held by this court in HCJ 6924/98 Association for Civil Rights in Israel v. Government of Israel [37], at pp. 26-27, that:

‘The court has given a broad meaning to the principle of equality in a whole host of judgments, and it has applied it to almost every type of distinction between human beings on the basis of improper criteria. Thus, for example, a distinction between persons who apply to receive a subsidy according to their place of residence or according to the date of the application may be considered a violation of the principle of equality. But the original meaning of the principle of equality, and I think that this is also the precise meaning, is narrower. In this sense, which is accepted in other countries, the principle of equality applies to a limited list of defined grounds that can be called the classic grounds of equality, or, as Justice M. Cheshin calls them, the generic grounds of equality. Examples of these are religion, race, nationality and sex: every person is entitled to equality irrespective of religion, race, nationality or sex. The principle of equality in this sense, as distinct from the broad sense, is considered in many countries, and ought to be considered, a constitutional right. It is for good reason that the Declaration of the Establishment of the State of Israel proclaims… the commitment of the state to uphold “complete social and political equality of rights for all its citizens irrespective of religion, race and sex.”

A breach of the principle of equality in the narrow sense is considered especially serious. As Justice M. Cheshin said in the second Women’s Network case… (at pp. 658-659):

“Another example of generic discrimination [in addition to discrimination against a woman because she is a woman] is discrimination against a person because of the colour of his skin or because of his race. Generic discrimination, as has already been said, is discrimination that deals a mortal blow to human dignity.”

See also Kadan v. Israel Land Administration [24] … at pp. 275-276.

The same is true of discrimination against Arabs because they are Arabs, and it makes no difference whether the discrimination is based on religion or nationality. This is a violation of the principle of equality in the narrow sense. It is therefore particularly serious.

The principle of equality in this sense is the essence of democracy. Democracy requires not only one vote per person on election day, but also equality for everyone at all times. The true test of the principle of equality can be found in attitudes towards religious, national or any other minority. If there is no equality for the minority, there is also no democracy for the majority.

The same is also true with regard to the question of equality for Arabs.’

(Emphases added).

6.    It is my opinion that even though the work was not carried out in the territory of the State of Israel, but in the territory occupied by the Israel Defence Forces, which is outside the State of Israel, this cannot work to the detriment of the Palestinian workers, and where there is no express intention in the employment contracts between the parties, Israeli law should apply. Obviously there is nothing to prevent different workers receiving different salaries that are based on the quality of their work or any other relevant difference, but this may not be done because of their ethnic origin or group.

7.    In our case, it seems to me that applying a foreign law to the Palestinian workers, while Israeli workers are governed by Israeli law, violates the basic rights of the Palestinian workers and leads to discrimination against them — in relation to the Israeli workers — because they are Palestinians, even though all of the workers work side by side. Discrimination on the basis of nationality was described by Dr M. Karayanni in The Influence of the Conflict of Law Process on International Jurisdiction (2002), at p. 271, in the following terms:

‘Therefore, if the law that is applied in the other forum conflicts with the “principles of the lifestyle of the local society,” because it violates the basic principle of equality between the sexes or the best interests of the child, or because it is discriminatory on the grounds of race, nationality or religion, it may be assumed that the original forum will refrain from compelling the parties to litigate before the other forum by accepting a claim of forum non conveniens. This is also true if the norm that will be applied in the other forum violates the “basic values of morality, justice, freedom and fairness…”.’

8.    When we are speaking of employment relations, these remarks are doubly valid, since it is well known that the Israeli legislature saw fit to protect the worker by means of binding statutes that the worker cannot contract out of, in which the legislature took into account the best interests of the worker and sought to protect him from exploitation by the employer. For these reasons it enacted statutes such as the Protection of Wages Law, 5718-1958, the Women’s Employment Law, 5714-1954, the Hours of Work and Rest Law, 5711-1951, and other similar statutes.

9.    Applying the foreign law violates the basic rights of the Palestinian workers, contrary to Israeli employment law. The National Labour Court de facto deprived the Palestinian workers that are employed by the Givat Zeev Local Council of the protection that the Israeli legislature saw fit to give Israeli workers. In my opinion, removing this protection in the circumstances of the case constitutes improper discrimination and it de facto creates a distinction that is neither objective nor ethical in the employment terms of Israeli workers as compared to Palestinian workers, so that the same employer applies different laws, one of which benefits the worker whereas the other does not.

10. In my opinion, since employment relations are determined by rights and duties that are imposed on the parties, an Israeli authority that acts under the law may not discriminate between workers of different nationalities that do the same work, even on the basis of the principle of good faith and the principles of equality and justice. Since the principles of Israeli employment law are more favourable to the worker that the provisions of Jordanian law, in the circumstances of the case they should be preferred since they reflect the principles of employment law that protect the worker (see HCJ 663/78 Kiryat Arba Administration v. National Labour Court [38]).

The Rome Convention of 1980 also adopted this outlook for this very reason, namely that the worker should be given maximum protection. The purpose of article 6 is to prevent a situation in which a worker, who comes from a country where the employment conditions are worse than in the country where he works, becomes a victim of discrimination. The assumption is that a worker will not go from a wealthy country to a poor one, unless it is worth his while, in which case he does not need the protection of the law.

Article 6 of the Rome Convention of 1980 states the following:

‘Article 6 — Individual employment contracts

1. Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice.

2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed:

(a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or

(b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated;

unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.’

EC Convention on the Law Applicable to Contractual Obligations (19 June 1980).

11. In the case before us, it is true that we are speaking of inhabitants of the territories who are not generally subject to Israeli law and who are doing work in a place that from a geographic viewpoint lies outside the territory where Israeli law applies. But in practice the Israeli enclaves have the legal status of Israeli towns, at least for the purpose of the application of Israeli law, and especially employment law. Workers who have Israeli citizenship and who work in these enclaves are subject to Israeli employment law, with all that this implies. Therefore, in view of what we said above with regard to the principle of equality, no distinction may be made between these workers and their Palestinian colleagues, who differ from them in nothing other than their national identity.

12. In conclusion, for all of the aforesaid reasons I agree with the opinion of my colleague the vice-president that the petition should be granted and the order should be made absolute.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague Vice-President Rivlin and with the remarks of my colleague Justice Joubran.

 

 

Petition granted.

27 Elul 5768.

10 October 2007.

 

HCJ 10843/04

1. Hotline for Migrant Workers

2. Kav LaOved Worker’s Hotline

v.

1.     Government of Israel

2.     Minister of Interior

3.     Minister of Industry, Trade and Employment

4.     Yilmazlar International Construction Tourism and Textile Co. Ltd

5.     Israel Military Industries Ltd (IMI)

 

 

The Supreme Court sitting as the High Court of Justice

[19 September 2007]

Before Vice-President E. Rivlin and Justices E.E. Levy, E. Hayut

 

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

 

Facts: Within the framework of an agreement between the fifth respondent and the Turkish Ministry of Defence, the State of Israel undertook that the fourth respondent would be given permits by the Israeli authorities to employ Turkish workers in Israel in the construction industry. According to the terms of these permits, the Turkish workers are only permitted to be employed in Israel by the fourth respondent. Following the decision of the court in Kav LaOved Worker’s Hotline v. Government of Israel [1], which set aside arrangements that restricted foreign workers in Israel to a specific employer as a violation of their human rights, the petitioners challenged the restrictive arrangement relating to the Turkish employees of the fourth respondent.

 

Held: (Majority opinion — Vice-President Rivlin and Justice Hayut) The arrangement in this case differs from the restrictive arrangements addressed in Kav LaOved Worker’s Hotline v. Government of Israel [1] in two major respects. First, unlike the foreign workers in Kav LaOved Worker’s Hotline v. Government of Israel [1], the Turkish workers do not pay substantial sums to manpower contractors to be allowed to come to Israel. Second, the rights of the Turkish workers are subject to the supervision of both the Turkish authorities and the Israeli authorities, which both have an interest in ensuring that the Turkish workers’ wages are paid and remitted to Turkey.

(Minority opinion — Justice Levy) The fact that the Turkish workers are not required to pay substantial sums to manpower contractors in order to come to work in Israel does not derogate from the fact that they are subject to a restrictive arrangement that prevents them from changing employers in Israel. The result of this is that they are unable to realize their market value in the work market. The restrictive arrangement thus violates the rights of the Turkish workers, and this violation is unconstitutional.

 

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

 

Legislation cited:

Companies Law, 5759-1999, s. 2.

Contracts (General Part) Law, 5733-1973, s. 30.

Courts (Mediation) Regulations, 5753-1993, r. 4A.

Employment Service Law, 5719-1959.

Hours of Work and Rest Law, 5711-1951.

 

Israeli Supreme Court cases cited:

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

[2]        HCJ 8155/03 A. Arenson Ltd v. Director of the Foreign Workers Department (not yet reported).

[3]        HCJ 3541/03 A. Dori Engineering Works Ltd v. Government of Israel (not yet reported).

[4]        HCJ 1963/04 Resido Fi. Bi. Ltd v. Ministry of Industry, Trade and Employment (not yet reported).

[5]        HCJ 10692/03 Plassim Development and Construction Co. Ltd v. Prime Minister (not yet reported).

[6]        CA 11152/04 Pardo v. Migdal Ltd [2006] (2) IsrLR 213.

[7]        CrimA 11196/02 Frudenthal v. State of Israel [2003] IsrSC 57(3) 40.

[8]        CrimA 7757/04 Borstein v. State of Israel [2005] IsrSC 59(5) 218.

[9]        LCA 267/06 Yilmazlar International v. Yagel (unreported decision of 9 January 2006).

[10]     HCJ 4999/03 Movement for Quality Government in Israel v. Prime Minister (not yet reported decision of 10 May 2006).

[11]     HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

[12]     CA 10078/03 Shatil v. State of Israel (not yet reported decision of 19 March 2007).

[13]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported decision of 11 May 2006).

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

[15]     CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[16]     CA 337/62 Riezenfeld v. Jacobson [1963] IsrSC 17(2) 1009; IsrSJ 5 96.

 

Israeli District Court cases cited:

[17]     LCA (TA) 2782/05 Yilmazlar International v. Yagel (unreported decision of 4 January 2006).

 

Israeli Magistrates Court cases cited:

[18]     CC 2992/05 (Ram) Yagel v. Nomdar (unreported decision of 4 September 2005).

 

Canadian cases cited:

[19]     Dunmore v. Ontario (Attorney General) [2001] 3 S.C.R. 1016.

 

For the first petitioner — N. Levenkron, Y. Berman.

For the second petitioner — Y. Livnat.

For respondents 1-3 — A. Helman.

For the fourth respondent — T. Benenson.

For the fifth respondent — R. Wolf.

 

 

JUDGMENT

 

 

Vice-President E. Rivlin

The background to the petition and the arguments of the parties

1.    In 2002, an agreement was signed between Israel Military Industries Ltd (IMI) and the Turkish Ministry of Defence to upgrade 170 Turkish Army tanks, for a sum of approximately 700 million dollars. The agreement included an undertaking on the part of the State of Israel to make reciprocal purchases in an amount of approximately 200 million dollars over a period of ten years, i.e., approximately 20 million dollars per annum. An undertaking of this kind for a reciprocal purchase, which is called an ‘offset arrangement,’ is intended as a rule to compensate local industry for sending sources of income and employment out of the country, as well as to create an economic balance so that together with the purchase from a party outside the country, foreign currency will also travel in the opposite direction, which in our case is from Israel to Turkey. There is therefore no dispute that, without the undertaking to make a reciprocal purchase, the Turkish Ministry of Defence would not have approved the transaction as a whole.

In 2003, it was agreed between IMI and the Turkish Ministry of Defence that a part of the offset undertaking to which IMI committed itself would be realized by means of granting a permit to the fourth respondent, Yilmazlar International Construction Tourism & Textile Co. Ltd (hereafter: the Yilmazlar company), a company registered in Israel with Turkish owners, to employ workers from Turkey in the construction industry. Within the framework of the agreement it was stipulated that the wages of the Yilmazlar company’s workers, less the amounts of money that the employees would keep for themselves for the purpose of their living expenses in Israel, would be sent directly to Turkey, and would be deducted from the offset debt. In order to ensure that most of the amounts that the Yilmazlar company’s workers would receive would indeed be sent to Turkey and be deducted from the offset liability, it was stipulated that at least 90 per cent of the Turkish workers who would be employed by the Yilmazlar company within the framework of the agreement would have families to support.

The aforesaid agreement was enshrined in government decision no. 2222 of 11 July 2004 (hereafter: the government decision). It was stipulated in the decision that the Yilmazlar company would receive a special permit to employ 800 foreign workers from Turkey in the construction industry during the years 2004-2007, without this leading to an increase in the overall maximum number of foreign workers in the construction industry. The petition before us was filed against this decision.

2.    The petitioners before us — the Hotline for Migrant Workers and the non-profit organization Kav LaOved Worker’s Hotline — are challenging the aforesaid decision of the government. In their petition, they explain that the workers of the Yilmazlar company are not subject to the procedures that apply to other foreign workers in the construction industry in Israel with regard to the possibility of changing employers, but they are subject to the arrangement that existed before the aforesaid procedures were formulated. According to the previous arrangement, a worker may work solely and exclusively for the employer for whom he came to work in Israel, and when the contract between the worker and that employer ends, the validity of the worker’s entry visa and his permit to live in Israel expires. As a result of this, the workers of the Yilmazlar company are ‘bound’ to their employers. In view of the aforesaid, the petitioners demand that respondents 1-3 (hereafter: the respondents) apply to the workers of the Yilmazlar company the arrangements that apply to the other foreign workers in the Israeli construction industry. In particular the petitioners demand that the ‘change of employer’ procedure and the ‘closed skies’ procedure should be applied to the workers of the Yilmazlar company. The ‘change of employer’ procedure, it should be clarified, was intended to allow a worker to submit an application to change employers before he leaves his lawful employer or immediately after leaving him, if he proves that he was unable to submit the aforesaid application before he left. The procedure stipulates conditions that allow a worker to leave the employer whose name is stated in his permit and change over to a different employer, subject to the conditions and requirements stipulated therein. The ‘closed skies’ procedure allows in certain circumstances a worker who has been arrested for illegal residence in Israel to be released from custody and to obtain work with another employer. This is intended to provide a solution for employers who have a shortage of workers, in view of the closed skies policy. The petitioners therefore argue that the government decision, which provides that the Yilmazlar company’s workers shall not be subject to the aforesaid procedures, is an unreasonable decision that violates the basic constitutional rights of the workers.

3.    The petitioners give details in their petition of several cases in which the Yilmazlar company’s workers applied, because of allegedly harsh and illegal conditions of work and wages, to change over to another employer within the framework of the ‘closed skies’ procedure. The applications of these workers were refused — so it is alleged — because the state relied on the government decision that is the subject of the petition. The petitioners argue that the Yilmazlar company’s workers suffer from harsh work conditions and meagre, illegal wages. They explain that the Yilmazlar company’s workers are recruited for the work in Turkey and are immediately required to sign a several-page agreement, without being given the possibility of reading the agreement and without being given a copy of it. It is alleged that the workers’ wages, without overtime, are less than the minimum wage required by law. The workers are required to sign a blank promissory note, which remains in the possession of the Yilmazlar company and allows it to attach the worker’s money and property unconditionally and for whatever amount that it sees fit to write in the promissory note. The petitioners further argue that when the workers come to Israel, their passports are taken from them; that in the first few months of their work, the Yilmazlar company does not pay their wages; that they work many hours each day and in rare cases they are even required to work almost a whole day without interruption; that the workers are not paid for overtime; that in some cases the workers are forbidden to leave the site after the workday ends without the approval of the work manager or they are required to return home no later than 10:00 p.m.; that at some sites the workers are forbidden to have cellular telephones; that if workers make a complaint, they are fined by the company and threatened that they will be dismissed and sent back to Turkey; and that the company has the habit of holding ‘threat meetings’ from time to time. The petitioners claim that the respondents’ policy, according to which they do not allow the Yilmazlar company’s workers to change over to another employer, gives Yilmazlar absolute power over its workers, who are compelled to suffer any condition and any stricture that is imposed upon them. They also say that the petition is filed as a public petition and that the petitioners do not include any worker of the Yilmazlar company who has been personally harmed by the company’s policy. The reason for this, according to the petitioners, is that the Yilmazlar company has succeeded in exploiting its absolute power over the workers in order to suppress any possibility of a ‘revolt’ against its conditions of work, as well as against the restriction upon changing over to another employer.

The petitioners raise a host of arguments against the government decision. Inter alia, they argue that the government decision with regard to the restrictive arrangement was made ultra vires and is contrary to the provisions of the Employment Service Law, 5719-1959, and contrary to the decision of a previous government; that it is a restrictive arrangement that violates the dignity and liberty of Yilmazlar’s workers, the freedom of occupation, the freedom of contracts and their freedom to enter into contracts; that the decision is contrary to public policy, contrary to the principle of equality and unreasonable. Finally they are of the opinion that we ought to decide that the offset transaction that was signed between the Government of Israel and the Government of Turkey is nothing more than trafficking in human beings.

4.    The state argues at the beginning of its reply that no foreigner has an inherent right to work in Israel, and a foreigner certainly does not have an inherent right to work in any place of work where he wishes to work, for any employer whom he chooses. It argues that every state may make its willingness to allow a foreign national to enter and work in it conditional upon him working only for a specific employer for whose benefit a visa was issued to the worker. On the merits, the state is of the opinion that the government decision does not violate any inherent rights of the company’s workers and that there are objective and reasonable grounds that justify not applying the ‘closed skies’ procedure and the ‘change of employer’ procedure to the Yilmazlar company’s workers. The state argues that there are significant differences between the Yilmazlar company’s workers and other foreign workers. First, the state says that the Yilmazlar company’s workers do not, when they enter into a contract with the company, pay large sums of money for their actual employment in Israel. This is different from other foreign workers, who pay huge sums to manpower companies or other agents in return for their actual employment in Israel, and they are therefore subject to the possibility of exploitation by the employer. In view of the aforesaid, the state argues that a worker who is not satisfied with the terms of his employment with the Yilmazlar company and wishes to terminate his employment with it can return to Turkey without suffering serious economic loss as a result, and there is no ground or reason that justifies allowing him to remain in Israel and to work here. Second, the state claims that the Yilmazlar company’s workers are different from other foreign workers in Israel in that they are employed in Israel within the framework of an agreement that was made with the approval of the Turkish government and they are entitled to the protection of the Turkish government with regard to their rights as workers. Third, the state further argues that the State of Israel has a clear special interest in protecting the rights of the Turkish workers to earn proper wages and to receive their wages on time. It is emphasized that the State of Israel attributes great importance to carrying out the offset undertaking within the framework of the agreement with Turkey, both because of the serious economic consequences that could result from a breach of the undertaking and because of the negative consequences that could result from a breach of the undertaking in the sphere of Israel’s foreign relations with Turkey. The respondents say in this regard that the Turkish Ministry of Defence and the Israeli government check the conditions of employment of the Yilmazlar company’s workers. Thus a delegation from the Turkish Ministry of Defence visited Israel in order to check the conditions of employment of Yilmazlar’s workers. In addition, the Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment (hereafter: the Ministry of Industry) ordered a comprehensive investigation to be made of the conditions of employment of Yilmazlar’s workers at the various sites of the company throughout Israel. It is claimed that the findings of this investigation showed that, as a rule, the company’s workers are employed on fair conditions, their wages are not less than the minimum wage provided by law and their housing conditions at the company’s sites are reasonable. The state clarifies that where problems were found, a further check was made and this showed that most of the problems had been corrected, and it declares that, in any case, the department will continue to consider whether to take action pursuant to its powers under the law to prevent additional problems in the future. Finally, the state claims that the petitioners did not succeed in establishing their claim with regard to a systematic violation of the rights of the Yilmazlar company’s workers, and that in any case, even if there is a basis to their claims, nothing prevents the workers who are dissatisfied with their terms of employment from leaving their work and returning to Turkey.

5.    The Yilmazlar company, the fourth respondent, requests in its reply that we deny the petition against it in its entirety. Yilmazlar claims that the petitioners, in their innocence, have been deceived by parties that have economic interests — employers and manpower contractors — who wish to devise  a method of bringing foreign workers into the State of Israel, who will operate without supervision and in circumvention of the ‘closed skies’ policy of the Israeli government. Yilmazlar regrets the fact that the petitioners  made no contact with it requesting  to receive the relevant details and to clarify the truth of the claims raised against it. The company claims that the documents in its possession — salary slips, confirmations of the payment of wages by bank transfer, confirmations of direct payments to workers and work agreements — show that it fully complied with the employment laws, and that investigations that have been carried out, both by Turkish government authorities and by Israeli authorities, show this to be the case. Yilmazlar requests that we do not accept the affidavits of the three foreign workers on which the petition is based. It claims that a comparison of these affidavits with other affidavits, which were filed by workers in administrative petitions relating to them, show many contradictions and that many of the facts included in them are incorrect. Inter alia, Yilmazlar says that the workers keep their Turkish passports, which they claim was proved in the investigation carried out by the Ministry of Industry; that the workers, including the deponents, come to Israel after signing work agreements with Yilmazlar that are supervised and approved by the Turkish Ministry of Labour; that the terms of the agreements with them, including increases in wages, are punctiliously observed by Yilmazlar; that the Turkish Ministry of Employment controls the travelling of Turkish workers to Israel and supervises the procedure carefully; and that the fact that many of the workers who return to Turkey, including one of the petitioners’ deponents, wish to return to Israel and to be reemployed specifically by Yilmazlar shows that the employment is fair and the wages are proper and lawful. Yilmazlar claims that the offset agreement constitutes a golden economic opportunity for the Turkish workers, and that granting the petition and setting aside the agreement will inflict a mortal blow upon hundreds of Turkish workers who are employed by the company.

6.    IMI, which was joined as a party to the petition at a later stage, is also of the opinion that it should be denied. It argues that the petition should be denied in limine because of delay in filing it, both because it was filed more than four months after the date on which the government decision was made, and because IMI was joined as a party to the proceedings another four months thereafter. IMI explains that the realization of the undertaking to make a reciprocal purchase — in an amount of tens of millions of dollars, and in accordance with predetermined timetables — involves lengthy and complex planning. It argues that setting the government decision aside will case IMI real and serious damage, since it will have difficulty, and maybe will not succeed at all, in complying with its undertakings to make a reciprocal purchase within the timetable that applies in this regard. IMI points out that Turkey is one of its important strategic targets. It argues that a failure to comply with the undertakings that IMI took upon itself is likely to result in fines in a sum of millions of dollars; damage to its chances of winning a further order for the project; the inclusion of IMI on the ‘blacklist’ of the Turkish defence establishment; exclusion from participation in additional tenders in Turkey in the military-security sphere; damage to IMI’s additional projects in Turkey; and damage to other joint projects between Israel and Turkey and the strategic relationship between the countries.

Decision no. FW/3 of the ministerial committee and Government Decision no. 4024

7.    Before we turn to consider the merits of the petition, we should discuss several developments that have occurred since the court began  hearing the petition. First, on 7 September 2005, the state filed an update statement, in which it gave notice that on 7 June 2005 the ministerial committee for the employment of foreign workers adopted a decision concerning the workers of the Yilmazlar company (hereafter: ministerial committee decision no. FW/3), which states the following:

‘1.          a.         Further to Government Decision no. 2446 of 15 August 2004 and Government Decision no. 2222 of 11 July 2004 [the decision that is the subject of this petition], it shall be determined that the permits that were given to Yilmazlar… to employ 800 foreign workers until the end of 2007 shall not be subject to the procedures concerning the employment of foreign workers through licensed corporations, and the Minister of Industry, Trade and Employment shall be directed to grant an exemption to the Yilmazlar company from paying the permit fees for employing those workers. In addition, the Ministry of the Interior shall be directed not to apply the transfer procedure and the change of employer procedure to the Yilmazlar company’s workers, subject to the decision of the Supreme Court in petition HCJ 10843/04, and at the same time the Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment shall be directed to carry out special periodic checks of the conditions according to which the company’s workers are employed, in order to ensure the payment of wages and ancillary benefits to the workers according to law.

b.            It is clarified that only the government has the power to approve, in very exceptional cases, any additional arrangement for the bringing or the employment of foreign workers as a part of reciprocal purchase transactions.’

The update statement made it clear that the Minister of Finance submitted an objection to the aforesaid ministerial committee decision no. FW/3, and on 31 July 2005 the government adopted decision no. 4024 (hereafter: decision no. 4024), in which it decided, inter alia, to approve the aforementioned paragraph 1, which lies at the heart of this petition and which concerns the arrangement whereby the foreign workers are employed by the Yilmazlar company. The state, therefore, emphasizes that both the ministerial committee and the government directly considered the matter lying at the heart of the petition, and they decided, in the circumstances of the case, that the transfer procedure and the change of employer procedure should not apply to the 800 foreign workers who are employed by Yilmazlar. It is argued that the margin of discretion given to the government, as the executive branch of the state, with regard to the policy of employing foreign workers in Israel, is very broad. In view of the aforesaid, the state argues that Government Decision no. 4024 falls within the margin of reasonableness, and that there are no legal grounds for the court's intervention.

8.    For their part, the petitioners filed a response to the update statement, in which they clarified that they stand behind everything stated in their petition and insist upon the relief sought therein. The petitioners claim that the decision of the ministerial committee and Government Decision no. 4024 do not change the position of Yilmazlar’s workers. Moreover, the petitioners emphasize that other foreign workers who work in the construction industry are no longer employed by construction companies, but through licensed corporations who supply manpower to the construction companies. As we said above, these workers are subject to the ‘closed skies’ procedure and the ‘change of employer’ procedure, which allow workers to change over from one manpower company to another once every three months. The petitioners argue that, by contrast, Yilmazlar remains the only construction company in Israel which has permits to employ non-Israeli construction workers directly, and whose workers suffer from being absolutely bound to their employer and from a continued violation of their rights.

9.    On 8 February 2006, the petitioners filed an application to attach documents, which they claim are capable of shedding light on the harsh consequences of the arrangement under discussion in the petition, and of the violation of the rights of the Yilmazlar company’s workers. The documents that the petitioners wish to attach are the decisions of three instances of the courts in an action filed by the village of Yagel against the Yilmazlar company. In the action, the Yilmazlar company was requested to vacate a building in the village in which it had housed its workers. It was alleged that the company housed approximately one hundred of its workers in a building designed as a home for one family, thereby violating their rights. The petitioners claim that the Magistrates Court, the District Court and finally this Court accepted the factual contentions of the village of Yagel in this regard.

In response, Yilmazlar argues that the housing conditions of its workers are not a part of the petition, and the facts of this matter should be examined, if at all, in other proceedings. It argues that the citations from the judgments that the petitioners wish to attach are obiter remarks that were made within the framework of the hearing for a temporary order, before the actual claim was tried. Finally, Yilmazlar argues that inspectors from the Department for Enforcing the Employment Laws at the Ministry of Labour and Social Affairs made an inspection of the housing conditions of the workers who were housed in the village of Yagel. They argue that that the report that was compiled shows that the housing conditions of the workers were satisfactory and that Yilmazlar passed the inspection after correcting minor defects. Yilmazlar therefore wishes to attach to its submissions the report of the inspection of the foreign workers’ housing by the Department for Enforcing the Employment Laws of the Ministry of Labour and Social Affairs of 8 November 2005, and the report of the inspection after correcting the defects, in order to prove that there is no basis to the petitioners’ claims.

The judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1]

10. On 40 March 2006, judgment was given by this Court in HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]. The petition in Kav LaOved Worker’s Hotline v. Government of Israel [1] was filed inter alia by the petitioners before us. In that petition it was claimed that the arrangement that bound foreign workers in Israel to one employer seriously violated the rights of those workers. The Supreme Court granted the petition. In a comprehensive judgment (written by Justice E. Levy, with the agreement of President A. Barak and Vice-President M. Cheshin), the court first considered the realities of the employment of foreign workers in Israel. The position of the workers was described (in paragraph 27 of the judgment) as follows:

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

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

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

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

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

Against the background of this harsh reality, the court reached the conclusion that the arrangement that restricts a worker to one employer violates the basic rights of the foreign workers to dignity and liberty. The court explained that in view of the large sums that the worker invests in acquiring the possibility of working in Israel, the connection between the residency permit in Israel and working for one employer seriously violates the foreign worker’s autonomy of will, which constitutes a central part of the human right to dignity. It was held that the restrictive employment arrangement means that the act of resignation, which is a legitimate act and a basic right of every worker, is accompanied by a serious sanction — the person who wishes to terminate the employment relationship loses the licence to live in Israel. This involves a violation of the worker’s right to operate in the work market as a free agent. The judgment explains that:

‘Associating the act of resignation with a serious resulting harm is equivalent to denying the individual of the possibility of choosing with whom to enter into a contract of employment, and compelling a person to work in the service of another against his will. This not only violates the right to liberty, but it creates a unique legal arrangement that is by its very nature foreign to the basic principle of employment law, the moral value of the employment contract and the basic purpose of the employment contract in guaranteeing the economic survival, dignity and liberty of the worker. It gives the employer of the foreign worker an enforcement tool that is unrecognized in our legal system, which has freed itself of the idea of enforcing employment contracts (see s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970). It deprives the worker of the basic ability to negotiate for the remuneration that he will receive for his work potential, and for the terms of his employment and his social benefits’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at para. 32).

The court went on to hold that the arrangement that binds a worker to one employer does not satisfy the proportionality test. In view of the aforesaid, the court ordered the respondents:

‘…to formulate a new employment arrangement, which is balanced and proportionate, with regard to foreign workers in these industries. This should not be based on the restriction of the worker who comes to Israel to a single employer, and it should refrain from linking the act of resigning with any sanction, including the loss of the status in Israel.’

11. Following the judgement in Kav LaOved Worker’s Hotline v. Government of Israel [1], the parties were asked to notify the court of their position with regard to the ramifications of the aforesaid judgment on the petition before us. From the statements of the parties it can be seen that both the petitioners and the respondents have not changed their positions. According to the petitioners, the judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1] strengthens their petition and what is stated therein applies a fortiori to the specific restrictive arrangement of the Yilmazlar’s company’s workers. The petitioners are of the opinion that the arrangement that is the subject of this petition should also be set aside, since it is a unique and even more drastic arrangement than the arrangement that previously governed all  of the foreign workers in Israel. For their part, the respondents are of the opinion that Kav LaOved Worker’s Hotline v. Government of Israel [1] does not have any effect upon their response. According to them, there is a material and relevant difference between the workers of the Yilmazlar company and the other foreign workers, who are required to pay large sums of money in order to come to Israel. The respondents are of the opinion that in view of the special employment arrangements of the Yilmazlar workers, the additional supervision of their employment, the fact that that this is an exceptional and special arrangement and the fact that the arrangement is supposed to continue only until the end of 2007, a distinction should be made between the specific case in this petition and the general question considered in Kav LaOved Worker’s Hotline v. Government of Israel [1].

Consideration of the arrangement that applies to the Yilmazlar workers

12. No one disputes that the offset arrangement between the Turkish government and IMI, which is the background to this petition, involves important public interests of the State of Israel. Granting the petition, by ordering the state to apply to the workers of the Yilmazlar company the arrangements that apply to all the foreign workers in the construction industry, in so far as this concerns the ability to change employers, is likely to result in serious damage to essential interests of the state, since it will lead to one of two possibilities. The first possibility is that the Yilmazlar company will be given an opportunity to employ new workers from Turkey, as replacements for workers who leave it and change over to other employers. This course of action will allow foreign workers to be brought into Israel without any limit, which is completely contrary to the ‘closed skies’ policy that the government adopted in order to limit the number of foreign workers and to encourage Israelis to re-enter the work market. The respondents explain that this policy has, in the last two years, resulted in thousands of new Israeli workers joining the construction industry. It has also been approved in several decisions of this Court, which has held that it contains no flaw and that there are no grounds for court intervention (HCJ 8155/03 A. Arenson Ltd v. Director of the Foreign Workers Department [2]; HCJ 3541/03 A. Dori Engineering Works Ltd v. Government of Israel [3]; HCJ 1963/04 Resido Fi. Bi. Ltd v. Ministry of Industry, Trade and Employment [4]; HCJ 10692/03 Plassim Development and Construction Co. Ltd v. Prime Minister [5]). The second possibility available to the state is that it will not allow Yilmazlar to bring new workers from Turkey to replace those workers who have changed over to other employers. It should be noted that the employment of a worker who changes over to any employer other than the Yilmazlar company, which as we said above has Turkish owners, will not be credited to the implementation of the reciprocal purchase undertaking, unless the Turkish Ministry of Defence approves the identity of the employer. Consequently, this course of action will lead to a breach of the offset agreement with Turkey, and the respondents assert that it is likely to result in serious damage to IMI in particular, and to Israel’s foreign relations and security in general. In this regard, the state emphasized the great importance of the strategic relationship between the State of Israel and Turkey and the fact that Turkey is one of Israel’s most important allies.

13. Indeed, the concern that important interests of the state may be harmed carries great weight. However, in the case before us, I have reached the conclusion that in and of itself  this concern need not lead to the denial of the petition because I am persuaded that the petition is unjustified on its merits and that the rights of the foreign workers, whom the petitioners wish to protect, are not being violated to a degree that justifies our intervention.

The position of the Yilmazlar company’s workers is incomparably different from the position of the foreign workers whose case was considered in Kav LaOved Worker’s Hotline v. Government of Israel [1], because of a combination of several factors that are all present in our case. First, there is no dispute that the workers of the Yilmazlar company are not required to pay large sums of money in order to come to Israel for the purpose of working for Yilmazlar. In the judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1], the court emphasized that:

‘The question whether the restrictive employment arrangement violates the rights of the employee to dignity and liberty cannot be considered in a vacuum. It should be considered in view of the reality of the employment of foreign workers in Israel. It should be sensitive to the complex circumstances that led to the possibility of foreign workers coming to Israel in the first place. It should take into account the special status of the group of foreign workers in the Israeli work market — a group that is composed of weak, “temporary,” poor and unorganized workers. It should take into account the huge disparity in forces between the foreign worker and the state that is allowing them to enter its work market on its terms , and the manpower agencies and companies that operate in this work market’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at paragraph 28; emphasis supplied).

Indeed, the court went on to discuss this reality. It explained that:

‘… foreign workers that come to Israel to work here do so against a background of economic distress and their desire to provide for their families. In the process of coming here, they are charged, not infrequently, large sums of money, which in terms of what is customary in their countries of origin are sometimes enormous, in return for arranging their coming and staying in Israel. For these reasons, deporting them from Israel before the worker has the opportunity of earning an amount of money that is at least sufficient to “cover” his debt is an action that deals a mortal economic blow to the worker and his dependents’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at paragraph 28; emphasis supplied).

Later the court said:

‘…according to the restrictive employment arrangement the residence permit given to the foreign worker who comes to Israel is conditional upon him working for a specific employer whose name is stipulated in the residence permit. A termination of the work for this employer, whatever the reason for it may be, means that the permit to reside in Israel expires. In view of the money and the effort that the foreign worker invests in “acquiring” the possibility of working in Israel for a fixed period, it is clear that this connection between the validity of the residence permit and the work for a single employer seriously violates the autonomy of his will…’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at para. 31; emphasis supplied).

The conclusion of the court in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1] was therefore based to a large extent on the factual background. In the case before us, as we have said, the position is different: the Turkish workers are not required to pay huge amounts to middlemen or to manpower companies in order to come to Israel to work for Yilmazlar. The opposite is true: Yilmazlar pays the cost of bringing the workers to Israel, including the costs of medical checks, flights to Israel and medical insurance. In view of the aforesaid, and as the respondents justly point out in their replies, an employee of the Yilmazlar company who is not satisfied with his conditions of employment may terminate his work relationship with the company, return to his country of origin, and this too is at Yilmazlar’s expense (except in exceptional cases where the worker is dismissed because of damage and loss that he deliberately and wilfully caused to the company), without the worker being encumbered by any significant debt. Indeed, a foreign worker who enters Israel within the framework of the offset arrangement does not have any acquired right to work in Israel; he certainly does not have an acquired right to work at any place of work that he wishes and for any employer that he chooses. Notwithstanding, a worker who has returned to Turkey can, if he so wishes, take the necessary steps in order to be employed by another Israeli employer, like any foreign national who wishes to be employed in Israel.

14. Moreover, I have been persuaded that there is a significant difference between the Yilmazlar workers and other foreign workers. This difference finds expression in a host of other parameters: the procedure of making a contract with Yilmazlar’s workers is carried out under the auspices and supervision of the Turkish government; the employment agreement with the workers is drafted and prepared by the Turkish Ministry of Labour together with the Turkish Ministry of Defence; the agreement is written in Turkish, the mother-tongue of the workers, and a copy of it is kept in the file that is maintained by the central management of the Turkish employment office; the work agreement is signed in Turkey as a three-party agreement by the worker, the Yilmazlar company and also a representative of the Turkish Ministry of Labour; the agreement grants the Yilmazlar workers a right to sue Yilmazlar even in Turkey. In this respect, their situation is also different from other foreign workers, since the deportation of the latter from Israel to their country of origin is likely to make it impossible for them to pursue their rights against their Israeli employer. With regard to the work conditions of the Yilmazlar company’s workers, the employment of these workers requires compliance with very strict conditions that were determined by the Turkish authorities. The respondents declare that the workers enjoy good working conditions, which includes receiving three meals a day, housing and medical insurance that are all paid for by Yilmazlar. The activity of the Yilmazlar company, in so far as it concerns the protection of the rights of the Turkish workers employed by it in Israel, is subject to the institutional supervision and strict review of several bodies, both on the Turkish side and on the Israeli side: the Turkish Ministry of Labour recruits the workers, prepares the work agreement with them and signs it, as aforesaid, as a third party, together with the worker and the Yilmazlar company. In this way, it is possible for the Turkish authorities to monitor the conditions in which the workers are employed. It was also stated that a delegation from the Turkish Ministry of Defence actually visited Israel in order to check the employment conditions of the Yilmazlar workers; the Turkish authority that supervises the offset arrangement supervises the transfers of the money and payments to the workers. The money (at least 75% of the workers’ salaries) is transferred to a central account that is managed in a bank in Turkey and from that account the money is transferred to the private accounts of the workers. From the Israeli side, there is an equal degree of supervision: IMI sends the Turkish authorities copies of all the transfers of money to the workers’ accounts and in return it benefits from a credit for the reciprocal purchase in the total amount of those transfers; the Israeli Ministry of Industry, which is responsible for the performance of the offset agreement, conducts inspections of the Yilmazlar company. As the state explained in its reply, the Foreign Workers Department at the Ministry of Industry carries out checks at the company’s sites throughout Israel. In the most recent check that was made, it was found that all of the company’s workers are employed in decent conditions, their wages are not less than the minimum wage provided by law and their housing conditions at the company’s sites are reasonable. The state also declared that in places where problems were found, a further inspection was made, and this showed that most of the problems had been corrected. The state further declared that the Foreign Workers Department will continue to check that measures are taken in accordance with its powers under the law in order to prevent additional problems in the future. It will be remembered that in decision no. FW/3 of the ministerial committee, which was approved in Government Decision no. 4024, it was stated that:

‘The Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment shall be directed to carry out special periodic supervision of the conditions of employment of the company’s workers, in order to ensure the payment of wages and ancillary benefits to the workers according to law.’

In addition, the Israeli Ministry of Labour and Social Affairs is also carrying out checks, on a regular basis, of the manner in which Yilmazlar treats its workers.

15. From all of the aforesaid and after reviewing all the additional documents in the application to attach documents, it transpires that the position of the Yilmazlar company’s workers is materially different from the position of the foreign workers whose case was considered in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1]. In the circumstances described, I am satisfied that the rights of Yilmazlar’s workers are being protected, thanks to the strict supervision that is imposed both from the Turkish side and from the Israeli side. Indeed, the arrangement under review in this petition is an unusual and special arrangement. Counsel for the state emphasized that, according to Government Decision no. 4024, it will not be possible in the future to make an additional arrangement to bring foreign workers to Israel or to employ them as a part of reciprocal purchase agreements without the approval of the government. In view of the state’s foreign affairs and security interests that are in the balance, the fact that the arrangement under discussion is supposed to continue only until the end of this year, and that the workers’ terms of employment were dictated by the Turkish government, which has a sincere concern for the conditions in which its citizens are employed, there are no grounds for granting relief to the workers. This is especially so when considering that it is questionable whether they want such relief. I propose to my colleagues that the petition should be denied.

16. I have studied the comprehensive opinion of my colleague Justice E.E. Levy and the opinion of my colleague Justice E. Hayut. I agree in principle with everything stated in them. Indeed, no one could dispute that the restrictive employment arrangement is highly undesirable, and that its causes very great harm to the foreign workers.

In the course of his wide-ranging opinion, my colleague devoted approximately two pages to an examination of the ‘actual harm’ to the Yilmazlar workers. In his consideration of the concrete expression of the harm to the workers, my colleague reaches the conclusion that ‘the factual picture is not entirely clear,’ but he determines that, from his point of view, it is sufficient that there is ‘a real concern that arises from the case that the rights of the Yilmazlar workers may be violated in various respects.’ The heart of the matter, in his opinion, is therefore ‘the normative situation created by the Government Decision’ (paragraphs 19 and 20 of his opinion; emphasis in the original). It should be noted that this is the point of dispute between us: I agree with the rule held in Kav LaOved Worker’s Hotline v. Government of Israel [1] as well as with the vast majority of the legal analysis put forward by my colleague in the course of his opinion in this case. But, I am of the opinion that this Court cannot consider the legal position without reference to the actual factual position. In our case, we are dealing with a special group of workers, and in the special circumstances that have been brought before us. As I have emphasized and I emphasize once again,  there is no basis for granting the petition.

17. In the case before us, it is not possible to examine the specific work relationship between the parties — the foreign worker on the one hand and the employer on the other — without reference to all of the factors that are involved in the transaction between them. In the case before us, the contract between the foreign workers and Yilmazlar is based on the agreement between the Israeli and Turkish governments, with the respective supervision mechanisms contained therein, which constitute a kind of ‘collective protection’ for Yilmazlar’s workers. The fundamental agreement between the governments strengthens the position of Yilmazlar’s workers; these workers benefit ab initio from a different status than that of other foreign workers, since the Turkish government represents them, conducted the negotiations concerning their terms of employment and is responsible for ensuring that the terms that were agreed to are upheld. In the present case, the protection of the rights of Yilmazlar’s workers does not rely solely on the goodwill of the employer, but involves international political interests, which arise from the relationship between the two countries. Thus, the Yilmazlar workers are employed within the framework of a government arrangement, by virtue of a political agreement, which imposes on the private subcontractor (Yilmazlar) duties that do not apply in general to private manpower contractors. We cannot ignore the clear purpose of the offset agreement between the two countries, which is the background to the employment of the workers. Whereas, as a rule, the assumption is that the employer, who is motivated by economic interests, is likely to minimize his workers’ rights, in the present case it is in the interest of the Turkish government that foreign currency—the  workers’ wages—will flow into it. In these circumstances, the Turkish government can be presumed to ensure that the economic value that was agreed to will actually be transferred, since this is the main declared and agreed purpose of the agreement.

18. Finally, I should point out that a consideration of the operative consequences of my colleague’s opinion raises the question of whether, if the outcome proposed by him is adopted, the condition of Yilmazlar’s workers will actually be improved. Since a cancellation of the open skies policy is no longer a possibility, adopting my colleague’s position would lead to the cancelling of the offset agreement, and, as a consequence thereof, completely denying the Yilmazlar workers the possibility of earning their livelihoods in Israel. I think that, in view of the serious state of the Turkish job market, which my colleague also discusses in his opinion, the actual harm that such a decision will cause the Yilmazlar workers is very serious indeed, and is far greater than the theoretical concerns raised by my colleague. The interests and concerns of the foreign workers are the main focus of my decision. I also agree with the remarks of my colleague, Justice E. Hayut, that we are dealing with an agreement that is limited in time and subject to special supervision, and that any change will justify a reconsideration of the matter by this Court.

 

 

Justice E.E. Levy

1.    On 30 March 2006, this Court held that a procedure that made the entitlement of a migrant worker to a residency and work licence in Israel conditional upon his remaining with the employer whose name is stipulated in the licence was void because it violated basic rights excessively (HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]). It was held that the procedure blatantly conflicted with a major principle in labour law — the right of a person to cease  working for an employer with whom he no longer wants to be associated, without this involving such a serious sanction that it makes the termination of the employment relations not worthwhile. If you deny this right of someone — and with it the fundamental principle of competition between employers — there is a significantly greater risk that his rights as an employee will be violated. This violation, as we know, frequently results in serious cases of exploitation. It deprives the worker of the only real protection that he has — his "market value". Thus, in the absence of any sense of moral responsibility, which it would appear many people have long forgotten, it is as if we have removed the last barrier preventing the dissemination of the outlook that seeks to blur the image of the worker as a human being and to reduce his existence to being no more than a pair of working hands, a machine to be used by the employer. In the works of Aristotle:

καὶ ὁ δοῦλος κτῆμά τι ἔμψυχον, καὶ ὥσπερ ὄργανον πρὸ ὀργάνων πᾶς ὑπηρέτης. [Greek letters unclear in source – Trans.]

‘And the slave is a living possession, and every slave is like a tool that is preferable to all others’ (Aristotle, Politics 1, 21).

The fundamental case law ruling that the restrictive arrangement is void remains valid, even if it has not been implemented in full (see the decisions of October-December 2006 in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1]; see also Hotline for Migrant Workers and Kav LaOved Worker’s Hotline, Binding Migrant Workers to Corporations, 11 (March 2007), and Freedom Inc. — Binding Migrant Workers to Manpower Corporations in Israel, 14, 38 (August 2007)). It created a new legal position, in which the law is no longer prepared to tolerate the making of arrangements of this kind. It plays a major role in the normative framework in which migrant workers are employed in Israel. It looks equally to the present and the future. It binds all the organs of government, and in particular the government. As long as it is valid, it is also the concern of the court, whether it is this Court, the administrative courts, the labour courts or the detention courts.

2.    The ink has not yet dried on that ruling, and the question of employment restrictions has once again come before us. This time, it is alleged, it takes a different form, which should be distinguished from the case that we decided. It presents us with a specific and special arrangement that is based on important security, economic and political interests. This arrangement is limited in scope and prima facie concerns no more than several hundred workers. The seriousness of this arrangement is reduced — so it is alleged — because of the low level of the violation of rights that is actually inflicted. In all of this my colleague Vice-President Rivlin found a basis for departing from the case law ruling that was made. My position is different. Adopting my colleague’s approach means nothing more than turning the normative clock back and returning to a previous legal position that was found to betotally unacceptable. Were my opinion heard, we would hold that the restrictive element in the Government Decision cannot stand, because it is inconsistent with the provisions of the prevailing law.

Restrictive arrangements come in many forms but have the same result

3.    In Kav LaOved Worker’s Hotline v. Government of Israel [1] my colleagues and I discussed briefly the negative effects of restricting foreign workers to one employer, throughout the world in general and in Israel in particular (see, inter alia, paragraphs 24 and 38 of that decision and the citations there). I personally wonder whether the normative position that was set out in that case was not clear enough. I will not mention my own comments there, but can  anyone who reads the judgment not be be disturbed by the profound question of Vice-President Cheshin who asked —

‘What has happened to us that we are treating the foreign workers, those human beings who leave their homes and their families in order to provide for themselves and their families, in this way? We are overcome with shame when we see all this, and how can we remain silent?’ (ibid., at paragraph 4 of his opinion).

It is therefore incumbent upon us,  and this time with even greater force, to reemphasize the gravity of the  harm caused by restrictive employment mechanisms, and the immense injustice caused by their toleration. By considering these, we will also find an answer to the claims that are unique to the case before us.

4.    Throughout the world there are arrangements that apply to migrant workers, which, despite the many ways in which they are expressed, the different methods that they adopt and the various sectors of industry to which they apply, all have a similar purpose — to restrict an employee to one employer. By denying the employee of the natural protection inherent in the idea of the free market, the restrictive arrangement exposes him to violations of his rights concerning wages, including the payment of lower wages than the minimum wage provided by law and prohibited deductions from the wages actually paid, to the imposition of hours of work that are far longer than those permitted, to the seizing of travel papers by employers as a means of guaranteeing the continued existence of the work relationship, to poor quality housing, to the denial of proper medical care, to forced movement from one work site to another, and not infrequently also to sexual abuse and actual imprisonment. Where it concerns the treatment of migrant workers there is a considerable, surprising and most regrettable similarity between countries that are very distant from one another and between peoples who are completely foreign to one another. .

5.    A description of some of these phenomena in Israel was given by the State Comptroller in reports that he issued (State Comptroller, Annual report no. 49 (1998), at page 279; State Comptroller, Annual Report no. 55b (2005), at p. 379). Scholars have also written about them (see, inter alia, Amiram Gill and Yossi Dahan, ‘Between Neo-Liberalism and Ethno-Nationalism: Theory, Policy, and Law in the Deportation of Migrant Workers in Israel,’ 10 Mishpat uMimshal (Law and Government) 347 (2006), at p. 361; Adrianna Kemp and Rivka Reichman, ‘“Foreign Workers” in Israel,’ 13 Information on Equality and Social Justice in Israel 1 (2003), at p. 13). They were well described in the annual journal of the Israeli Society for Labour Law and Social Security for 2004:

‘The “restrictive arrangement” has led to widespread and serious phenomena of abuse and violations of the human rights of foreign workers. Many employers have exploited foreign workers in various ways. Workers are “charged” for fees and taxes that they [the employers] are liable to pay to the state, huge sums are deducted from the salaries of foreign workers on various pretexts and the workers are housed in wretched conditions. A large number of employers do not pay the foreign workers for all the hours during which they work, they pay less than the minimum wage and they do not pay overtime. Many employers do not pay medical insurance for their workers, and they shirk responsibility for them when they are hurt in work accidents and need medical treatment’ (Sharon Asiskovitch, ‘The Political Economy of Migrant Workers in Israel and the Immigration Policy vis-à-vis Foreign Workers in the 1990s,’ 10 Labour, Society and Law 79 (2004), at p. 90).

6.    But the negative consequences of restricting workers to their employers are not found in Israel alone. In Great Britain the recognition of the serious harm caused by this restriction to foreign domestic workers led to the amendment of the law in 1998 and the cancellation of the restriction (recently human rights organizations are warning of its return, de facto, because of government policy. See Kevin Bales, Disposable People: New Slavery in the Global Economy (2000), at page 28; Kate Roberts, ‘An important progressive response to globalisation is about to be reversed,’ Compass (May 22nd, 2007)). In Italy migrant workers are compelled to endure harsh treatment by their employers, since an attempt to change employers results in immediate deportation from the country and a three-year ban upon returning to work there (John Wrench, Migrants and Ethnic Minorities at the Workplace — The Interaction of Legal and Racial Discrimination in the European Union (Danish Centre for Migration and Ethnic Studies, Papers, Migration No. 19, 1997), at p. 29). In the United States the restriction of a whole sector — seasonal migrant workers whose main occupation is in agriculture — is a key factor in the serious exploitation of migrant workers by their employers. A comprehensive report, which was published this year by an American human rights organization, discussed this relationship between the restrictive arrangement and the violation of the rights of temporary migrant workers, who are sometimes treated like commodities:

‘Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market – the ability to change jobs if they are mistreated. Instead, they are bound to the employers who “import” them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation… They are the foreseeable outcomes of a system that treats foreign workers as commodities…’ (Southern Poverty Law Center, Close to Slavery — Guestworker Programs in the United States (2007) 1, 2, 33-40).

7.    Some people regard restrictive arrangements as a means used by the host countries to keep the migrant workers apart and estranged from society, and to make them a cheap and available work force that can only be employed in difficult and unattractive jobs. The direct link between being bound to one employer, on the one hand, and a reduction in the wages paid and the migrant worker being forced to the bottom of the work ladder, on the other, was well illustrated by what is happening in the labour markets in East and South Asia (Stuart Rosewarne, ‘The Globalisation and Liberalisation of Asian Labour Markets,’ 21 World Economy 963 (1998), at page 973) as well as in Canada (Nandita Sharma, ‘On Being Not Canadian: The Social Organization of “Migrant Workers” in Canada,’ 38 Canadian Review of Sociology and Anthropology  415 (2001), at pages 425, 433). This was also discussed in a working paper describing the territory of Macao in China, which each year attracts a significant number of migrant workers:

‘[Scholars] have gone a long way to expose the role of the state in keeping the migrant workers “cheap” and “flexible.” The state has constructed a regulatory system in managing this category of foreigners. Many of these mechanisms are legislated into laws. Typically, migrant workers are denied the right to change employers. Since the ability of foreign workers to switch employer is severely curtailed, they are forced into a status of bonded labour and thus allow their employers to pay them a rate below that of the local workers’ (Alex H. Choi, ‘Migrant Workers in Macao: Labour and Globalisation,’ Southeast Asia Research Centre Working Paper Series no. 66 (2004), at page 6).

In the United Arab Emirates, migrants that constitute the majority of the work force, are forbidden to change employers during their first two years and thereafter can only do so with the employer’s consent. A particularly serious consequence of this is in the construction industry, where dozens of migrant workers lose their lives every year as a result of poor safety conditions. Dozens of others, in their distress, take their own lives. Others do not receive wages on time, live in poor conditions and are compelled to work long hours. All of this is because the employers regard themselves as not needing to compete for the market value of the worker (Hassan M. Fattah, ‘In Dubai, an Outcry from Asians for Workplace Rights,’ The New York Times (March 26th, 2006)). This was discussed by the international human rights organization, Human Rights Watch, in a comprehensive report published last year:

‘In most other places, a worker faced with hazardous working conditions and unpaid wages, in a free market economy that has an extreme shortage of labor, would move to a different job. But this is not an option for the migrant construction workers of the UAE, who like all other migrant workers in the country are contracted to work only for a specific employer’ (Human Rights Watch, Building Towers, Cheating Workers – Exploitation of Migrant Workers in the United Arab Emirates (2006), at p. 13).

8.    But what happens around the world does not only include direct restrictive arrangements. Sometimes the arrangements in the law take on an indirect guise, so that it appears that they originate in the free will of workers, even though this is not the case. The United States also provides an example of this. Not many years ago, in 2000, the American legislator addressed the impropriety whereby foreign skilled workers were subject to restrictions by law and repealed it (S. 2045 American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. 106–313, title I, § 105, Oct. 17, 2000 (8 USCS §1184(n))). These workers are therefore allowed to change employers, but few of them take advantage of this, since their loyalty to a single employer is almost always an essential condition for recognition of their entitlement to a permanent residency visa (‘green card’). The strong desire to obtain this visa results in most workers binding themselves to an employer for many years. The direct and obvious result of this constraint — which as we have said appears to be a voluntary act deriving from freedom of choice — is the lack of competition for the workers, and consequently a significant worsening of their terms of employment. The figures show that even though these are skilled workers, including engineers, software and hi-tech personnel (who include, incidentally, no small number of Israelis), the wages paid to them are significantly lower than their American counterparts, they are compelled to work far more than the customary number of hours and they are harmed in other ways (Mark Krikorian, ‘Slave Trade: Permitting Guest Workers Sounds like the Perfect Solution to the Immigration Imbroglio: Look Again,’ National Review (September 14th, 1998); Norman Matloff, ‘On the Need for Reform of the H-1B Non-Immigrant Work Visa in Computer-Related Occupations,’ 36(4) University of Michigan Journal of Law Reform 50 (2003), at page 64).

9.    Additional aspects of an indirect restrictive arrangement, which results in workers refraining from changing employers and suffering unfair treatment and the loss of basic rights, may also be found in the following two measures. The first of these is where workers are required to sign promissory notes for large amounts or for unstated amounts, which allows the employer to sue the workers for large amounts of money at will and for any reason that he chooses. According to the petitioners, Yilmazlar’s workers were required to sign such promissory notes. The second is where there are ‘blacklists’ by means of which employers work together to blacklist workers who have the temerity to complain about their conditions of employment. Being blacklisted has serious consequences, since not only does the complaint result in many cases in an immediate termination of the work and deportation, but in the future also, even if those workers have a right in principle to ask for another work permit, they will have difficulty in finding someone who will be willing to employ them.

The restrictive arrangement and the alleged consent

10. Only a consideration of the complexity of the issue of restrictive arrangements, with the multitude of situations that it manifests, allows us to understand the real difficulty faced by migrant workers, for whom the restriction to one employer — whether overt or concealed, whether official or de facto, whether clearly the result of coercion or apparently the result of the worker’s free choice — is a main source of the violation of their rights. It is clear to everyone that were migrant workers not prepared to suffer the restrictive arrangement, because they have no choice, the restrictive arrangement would never have come into existence. Were the workers to make their arrival in the host country conditional upon their ability to change employers, were they to apply on a constant basis to the courts and to enforcement agencies in government ministries for help and receive a positive response, and were they to refrain from working under the restrictive arrangement system, then it is doubtful whether it would survive for long. Similarly, were they to refuse poor employment conditions, the employers would be compelled to improve them.

Does this lead us to the conclusion that the responsibility for the restrictive arrangement should be imputed to those who suffer from it? Do migrant workers bring upon themselves the wrongs that they suffer, by continuing to look for employment despite what they know of it? Should they complain to no one other than themselves for choosing to look for work abroad? This is exactly how we should understand the argument of the respondents before us. This can also be seen from an approach that, regrettably, has obtained some credibility in the public debate concerning migrant work in Israel. It was written in one research paper that the treatment of migrant workers ‘is based today on a contractual-commercial approach, according to which the consent of the migrant workers to accept the “rules of the game” makes the rules legitimate’ (Ofer Sitbon, ‘The Role of Courts in Israel and France in Designing the Policy towards Migrant Workers,’ 10 Mishpat uMimshal (Law and Government) 273 (2006), at page 278). This was well described by Professor Guy Mundlak:

‘One of the arguments raised in the public debate is that the discussion of the rights of the foreign worker is not important, since the state does not have a duty to take in foreign workers… The foreigner can decide if he wishes to accept the status that Israel offers and to work accordingly, or he can choose a competing status offered by another country or stay in his own country. [According to this argument], the willingness of a foreigner to enter a country with the status offered in itself indicates his consent to the conditions accompanying it that are presented before him. When this consent is given, it constitutes the moral basis for the whole set of rights that the state offers… If the number of foreigners who are interested in adopting this status, with its accompanying conditions, fills the quota, it means that these conditions are fair. The mere consent of the foreigners to accept them is the stamp of approval for their fairness’ (Guy Mundlak, ‘Workers or Foreigners in Israel? “The Basic Contract” and the Democratic Deficit,’ 27 Tel-Aviv University Law Review (Iyyunei Mishpat) 423 (2003), at page 428).

11. According to the respondents, the violation of rights inherent in the restrictive arrangement of the Yilmazlar workers is not a violation, since it can be remedied at any time by means of a simple act — the return of the worker to his country of origin. If he does not choose to do this, on the basis of a profit and loss reckoning that finally leads him to the conclusion that working in Israel is worthwhile, what right does he have to complain about a work system that he chooses to join? A similar approach is also implied in the position of my colleague, the Vice-President, when he says: ‘… an employee of the Yilmazlar company who is not satisfied with his conditions of employment may terminate his work relationship with the company [and] return to his country of origin…’ (paragraph 13 of his opinion, supra). Moreover, according to my colleague’s approach, the employee has the right to apply once again, when he returns to Turkey, for a work permit in Israel, as if there were no ‘closed skies’ policyand  as if the number of positions were not limited, and as if the workers could be confident or certain that they would not be prejudiced because they left in the first place.

In my opinion, this position cannot be tolerated, mainly for reasons of principle. It is inconsistent with the basic principles of our legal system. I am referring primarily to a fundamental principle in the law, which is a principle of public policy. It was my colleague, the Vice-President, who regarded this principle as ‘one of the legal tools that were designed to protect the fundamental core values of the legal system and to steer the operation of the rules of law in a direction that is consistent with those basic values’ (CA 11152/04 Pardo v. Migdal Ltd [6]). Indeed, the whole of public policy is based on the recognition of the superiority of social values, which are even capable of prevailing over a contractual consent that was made freely and willingly. It allows the court to invalidate a contract whose content is immoral (section 30 of the Contracts (General Part) Law, 5733-1973); it denies the right of a person to form a company whose purpose is not a proper purpose (section 2 of the Companies Law, 5759-1999); a mediator may terminate a mediation proceeding where he is of the opinion that the settlement reached by the parties is an improper one (regulation 4A of the Courts (Mediation) Regulations, 5753-1993), and so on.

12. Thus we see that the outlook that regards consent as the whole of the matter is an idea that is foreign to our legal system. A clear example of this was provided in the past by the rulings that addressed the serious issue of trafficking in human beings, which despite the clear differences has more than one point of similarity with the issue that we are currently considering. In several cases that came before it, this Court emphasized the limited value of the argument of consent in that context. In CrimA 11196/02 Frudenthal v. State of Israel [7], at p. 46, Justice D. Beinisch emphasized that the consent of the victim of the trafficking to what is done to him is of no relevance. In CrimA 7757/04 Borstein v. State of Israel [8], at p. 233, Vice-President Cheshin also held that ‘there is no significance to the issue of the consent or lack of consent of a person to work in prostitution; consent does not reduce the severity of the offence nor can it serve as a defence for the trafficker.’ Within the narrow limits of the case before us, we are not dealing with criminal liability. But the criminal prohibition is one of several tools for expressing our unwillingness to tolerate moral wrongs, which harm the ethical basis on which our society is founded. Where someone wishes to put forward the argument of consent in order to indicate prima facie acquiescence in a situation that is regarded as ethically wrong, we have the power — or perhaps I should say that we are required by the law — not to satisfy ourselves with that argument but to investigate further the moral basis underlying the matter, and where necessary to set matters right.

This is the position in the law in general, and it is also the position in labour law, which for some time has not regarded a contract as the final word with regard to the relationship between a worker and his employer. An approach that consent is sufficient to make a contract for providing a service valid, whatever its contents, is inconsistent with our understanding of the labour laws and their purpose — to encompass, within the well-established limits of decency and morality, interactions between an employer and an employee. It is also clearly contrary to the rationale underlying protective legislation, and regrettably we so often find ourselves acquiescing in the blatant breach of such legislation (see Gill and Dahan, supra, at p. 363). A ‘foreign worker,’ before he is a foreigner, is a worker. The spirit of labour law, which extends its protection to him, does not allow us to regard his relationship with his employer, as well as with the state, merely from the narrow viewpoint of informed consent.

Basic values of law, as well as basic principles of morality, cannot be excluded from the normative framework that applies to migrant workers. Mundlak answers the questions that we cited above so correctly that it is fitting that I should cite his remarks:

‘Even if we accept the premise that the arrival of the foreigner to work in Israel is based on consent, there are limits to the extent of the consent that can be attributed to the contract that was agreed by the foreigner when he came to work in Israel. First, there are universal rights that do not depend upon prior association with the national community; contracting out of these in an agreement with a foreign worker has no effect… The mere presence of foreign workers in Israel cannot provide the answer to the question of the extent of the rights to which they are entitled. In essence, the argument of consent grants a legitimacy that does not depend on content but merely on procedure (a kind of offer and acceptance). But offer and acceptance are not the proper procedure… There is a basis for making the prima facie consent in the basic contract subordinate to norms of public policy, including the protection of human rights and democratic norms’ (Mundlak, supra, at pages 430, 432, 480).

Although we have spoken above of ‘market value,’ we should always remember that this is a starting point, but not the end of the matter, and to this important element we ought to add other factors that are also capable of protecting workers — whether foreign or local — when their market value is limited.

13. The position adopted by my colleague also does not sufficiently take into account factors that are inherent to migrant workers. The first and foremost of these is the question of motivation. The foreign worker is almost always looking for employment opportunities outside his country of origin because of a desire to improve his economic condition. Sometimes poverty, which is clearly recognizable to western eyes, and a difficulty to support his family are what compel him to look for work abroad. The same economic distress is also what leads temporary workers to return time after time to countries in which they were exploited in the past, in the hope — usually a false one — that this time they will receive better treatment. Indeed —

‘Propelled by desperate economic circumstances in their home countries, and perhaps misplaced naive optimism, they return a second or third time with hopes of better conditions, only to experience salary reductions again’ (Human Rights Watch, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia (2004), ch. 2).

In other cases, and it is possible that this is also the case before us, the background from which the migrant worker comes is better. But we should not treat lightly the economic constraints which the migrant worker faced and which led him to seek an alternative source of livelihood. Not infrequently the opportunity of employment in the host country is the alternative to a high level of unemployment in the country of origin, which reduces a person’s chances of finding work in his homeland. The wages paid in the host country, which are often considerably higher than those in the country of origin, are also a major factor in encouraging migration for the sake of work. The economic enticement is great, and its effects are considerable. It is not difficult to imagine what motivates a person who earns a relatively low wage in his country of origin, sometimes merely a few dollars a day, to uproot himself from his home and his family and look abroad to the promise of wages that are hundreds of times higher. This promise, whether it is realized or not, is very powerful and has great effect. Frequently, it overrides concerns of difficulties, and even specific knowledge concerning the danger of exploitation and the loss of rights. This too was considered by the American report, which asked:

‘This raises the question: Why do workers choose to come to the United States under these terms? The simple fact is that workers from Mexico, Guatemala and many other countries often have very few economic opportunities… Where jobs exist [in those countries], the pay is extremely low; unskilled laborers can earn 10 times as much, or more, in the United States as they can at home. So even though they risk being cheated, many workers are willing to take that chance. Most perceive the guestworker program as their best chance to provide a better life for their families. These desperate workers are easily deceived’ (Southern Poverty Law Center report, supra, at p. 12).

14. Turkey is a developed country in comparison with many of the countries from which workers come to find employment in Israel. The Turkish economy has undergone considerable changes in recent years, and the economy of that country is experiencing growth and making efforts to increase employment opportunities. Notwithstanding, the report of the World Bank, which was written in 2006, indicates that the increase in jobs available there still lags considerably behind the natural growth of the population. Whereas the number of residents of working age has increased considerably — between 1980 and 2004 approximately 23 million potential employees entered the market — only six million additional jobs have been created (World Bank, Turkey Labour Market Study, report no. 33254-TR 12 (April 2006)). For this reason, the World Bank states that the employment rate in Turkey is one of the lowest in the world (ibid.). The report goes on to reveal that as a result of economic crises that Turkey underwent in 1994 and 2001, there was a significant reduction in the amount of the average wage paid in Turkey, and only recently has there been some degree of improvement in this index (ibid., at p. 21). To illustrate this, in 2004 — the year in which the arrangement that is the subject of the petition before us began to be implemented — the average monthly salary of a worker in Turkey was the equivalent of approximately 3,600 NIS. In Israel the amount of the average wage at that time was double — approximately 7,000 sheqels.( http://www.databasece.com/international.htm)

Moreover, precisely because of extensive protective legislation that is included in the Turkish code of laws and that makes the dismissal of a worker there very expensive for his employer, not only is the incentive for Turkish employers to take upon themselves the risk of creating new jobs small, but there is a flourishing market of informal workers who do not benefit at all from the protection of the labour laws (World Bank report, supra, at pp. iii, 21). The vast majority of formal workers do not benefit from proper protection because they are not parties to collective arrangements that are the result of collective bargaining (ibid., at p. 26). Turkey has, of course, a long tradition as an ‘exporter’ of migrants to foreign countries, and the migration consciousness in Turkey, including for the purposes of work, is well developed. According to official figures of the Turkish Ministry of Labour, in June 2005 more than three and a half million persons with Turkish nationality lived in countries around the world (approximately five per cent of the country’s population at that time), and of these almost a million and a half persons worked in the foreign workers market.

15. From reading all this it becomes very clear what motivates the persons who are employed as workers by Yilmazlar to look for a livelihood outside their country of origin, notwithstanding the difficulties that may accompany their work in Israel, including the absence of any possibility of choosing their employer here. Even more important is the understanding that it is not their informed choice — their preferred choice between several good options — that is the basis for their agreeing to the restrictive aspect of the agreement. Difficulty and distress are the essence of the matter. Their fear of a harsh economic fate, their natural desire to improve the living conditions of their families, their ambition to take advantage of an opportunity that the global village of the beginning of the twenty-first century has opened up to them — these are the motives of these workers to agree to a well-institutionalized denial of their rights. Can anyone fault them for this?

The argument concerning enforcement

16. It may be argued, and this reasoning is also used by my colleague the Vice-President in his opinion, that the concern with regard to the evil consequences of restricting the workers is allayed by the protection given to them in labour law, and especially the declared policy of the Israeli and Turkish governments that the employment of the workers shall be subject to ‘institutional supervision and strict review,’ in the words of my colleague. First I will say that I question how strict the supervision measures adopted can really be, and of this I will say more below. But before this I will emphasize that experience in most countries around the world, as well as in Israel, proves that in the main the enforcement authorities cannot provide a solution to the concern that we have described.

Not infrequently there is an inherent conflict of interests, even if it is an unspoken one, between the system of laws that is the basis for the policy whose main purpose is to provide a cheap and effective work force for various industries in the economy and the part of the legal system that concerns workers’ rights.

‘If supplying this labor force is a primary goal of immigration policy, then legal protections for guest workers cannot be guaranteed, since they contradict its essential purpose’ (David Bacon, Be Our Guests, The Nation (September 27th, 2004)).

Second, the protection of the rights of foreigners, who are found on the margin of society, is usually a low-level priority for governments, and only limited resources are devoted to it. As a direct result, in many countries that host foreign workers the enforcement system has difficulty in preventing a violation of their rights. It should be emphasized that I am not referring to rights of a vague or external nature that rely on the overburdened foundations of universal morality or general principles, which may well not be given any expression in the law of the host country. Even those principles that are expressly enshrined in the laws of the state and whose solid foundations are unchallenged, both in their application to local employees and also to temporary guests in the work force, are not sufficiently enforced. Often, even if on paper these rules are quite well-developed, when put to the test they are an empty shell and have no real effect (Sitbon, supra, at page 278). This is the case throughout the world, including in the United States (Southern Poverty Law Center report, supra, at pages 1, 7), in East Asia (Rosewarne, supra, at page 22), in Africa (Nasseem Ackbarally, Foreign workers in Mauritius face torrid time, Mail & Guardian Online (28 November 2006)), and in the countries of the United Arab Emirates (Human Rights Watch report regarding UAE, supra, at pages 9, 13, 48).

Even the countries of origin of migrant workers do not always have the same interests as their citizens abroad. Even if in some cases an effort is made to further the rights of the workers, usually in agreements with host countries, this effort is often confronted by, and sometime in direct conflict with, the interest of the country of origin to develop its economy by means of income from a foreign source and the import of knowledge and work methods. When this interest prevails, the first to be harmed are the workers (S. Rosewarne, Globalisation and the Valorisation of Migrant Labour: Recasting the Migration-Development Nexus (Paper presented to the Regional Conference on Institutions, Globalisation and their Impacts on Labour Markets in Pacific Island Countries, October, 2006), at page 4).

17. The case of the Yilmazlar workers, which according to the state’s argument before us — an argument that my colleague the Vice-President sees fit to accept — also benefits from the protection of representatives of the Turkish authorities, is very similar to the case of temporary workers in Canada, who are employed in the agricultural industries and are bound to a single employer during all the months when they are in that country (Sharma (2001), supra, at page 423). The unique aspect of work migration to Canada is that almost all of it is based on bilateral agreements, in which the federal government is one party and the authorities of the country of origin the other. These agreements contain mechanisms that allow the two countries to supervise the enforcement of proper conditions of employment. If a foreign worker has any complaint with regard to any aspect of his work, he may bring it before the representatives of his country, and they, in turn, are supposed to raise the matter with the Canadian authorities. In practice, those representatives of the countries of origin are faced with a conflict: on the one hand, they owe a duty of faith to the worker, but on the other hand, they have a similar duty to the interests of their country, including to its good diplomatic relations with Canada. It is not surprising to discover that in this competition of interests, the workers find themselves at a disadvantage. They are employed in very harsh conditions and with small salaries, and there is no real address for their complaints. Because they fear being deported, they are compelled to suffer conditions that would be unacceptable to local workers (Nandita Sharma, Mexican Standoff – Canadian ‘Guest Workers,’ The Globe and Mail (March 29th, 2006)). The Supreme Court of Canada discussed this in a judgment in 2001, in which it set aside a provision of legislation that forbade foreign workers to form unions (Dunmore v. Ontario (Attorney General) [19], at paragraphs 41, 102). This harmful reality is also described in an article that was published last year and reviewed the Canadian experience, which is so bad that some have called it ‘Canada’s shameful little secret.’ The article states:

‘…the consular liaison officers [of the sending nation] appointed to look out for the workers suffer from a conflict of interest: maintaining good relations with Canada and the smooth operation of the scheme versus taking up the fight on behalf of individual workers.

 As one former contract worker from Mexico puts it, a complaint to a consular official “enters in one ear and goes out the other.” It is simpler for consular officials to replace workers who raise concerns in the workplace than to address the root cause of their complaints’ (Peter Mares, Workers for all seasons, The Diplomat (July-August, 2006). See also World Bank, Pacific Islands At Home & Away — Expanding Job Opportunities for Pacific Islanders Through Labor Mobility, Report No. 37715-EAP 117 (September, 2006)).

Moreover, contacting the enforcement authorities, which is often the most effective way in which workers who have been harmed can bring their case to the attention of the authorities, is not practicable in view of the concern, which is a common occurrence in the experience of migrant workers, that it will lead to the loss of their livelihood. Another report of Human Rights Watch, which deals with the American labour market, found that migrant workers in that country are generally reluctant to sue for legal remedies to which they are entitled under the law, in case it leads to their being blacklisted for work. In the words of the report:

‘… found widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in [labor organizations]’ (Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (2002), at pages 42, 202, 206).

18. To all of this we should add the recognition that despite the well-developed labour law in the country of origin of Yilmazlar’s workers, the legal protection actually afforded to workers in Turkey leaves much to be desired. This was discovered by the World Bank, which said: ‘Compliance with labor law is weak in Turkey. Many workers are not receiving the protection that is the intent of the laws’ (World Bank report, supra, at page xi). In view of the aforesaid, one can only look sceptically upon the promise that the authorities will carry out enforcement measures, both in Israel and in Turkey. In the absence of any real course of action in the legal sphere, there is additional support for the conclusion that a worker who refuses to acquiesce in his being bound to one employer faces a real difficulty in protecting his rights.

To complete the picture I will add that this difficulty is aggravated by an additional element that is integral to work migration, and this is the limited ability of foreign workers to form unions and to achieve collective protection. In many places the local workers’ organizations are not prepared to admit foreigners into their ranks, and there are places where the law prevents this and even forbids the creation of alternative frameworks. It is also natural that temporary workers, who come from different countries, speak different languages and sometimes have conflicting interests (for example, because of the competition over a limited number of positions or a desire to improve their work conditions at the expense of other workers), have difficulty in forming unions. To all of this we should add the well-known difficulty, which is inherent in work migration, of being removed from a familiar environment, the normative system to which the workers are accustomed and the family unit, which is capable of weakening them and preventing them from becoming organized in an effective manner.

Theoretical harm and actual harm

19. What is the concrete expression of all this in the case of the Yilmazlar workers? The parties disagree on this question. On the one hand, workers of the company have testified, in affidavits that were attached to the petition before us, with regard to difficult conditions in which they were employed, harsh treatment that they received, being required to sign contracts whose content — which is sometime draconic — was unclear to them, prolonged delays in receiving wages, the confiscation of passports, the payment of wages that are lower than the minimum wage in force in Israel, non-compliance with the provisions of the Hours of Work and Rest Law, 5711-1951, and an absolute dependence on their employer, which prevents any possibility of improving the situation. On the other hand, Yilmazlar remains insistent that everything stated in those affidavits is false and unfounded. As proof, the company presented affidavits from other workers, in far greater numbers, that testify to fair employment conditions and the payment of wages on time. Unfortunately, these affidavits are all drafted in identical language, as if they were all dictated word for word. All that I can hope is that it is merely a false concern that someone wished to have workers sign a declaration that does not reflect their true position. In any case, these affidavits do not address at all the amount of the wages paid to the workers, the content of the work contract, the claim that workers were compelled to sign blank promissory notes, the question of the workers’ dependence on the company including the claim that passports were confiscated, the proper housing conditions that are provided and the question of vacations and rest days.

In practice, checks that were conducted by the Ministry of Employment on the work sites where Yilmazlar operates, on 8 November 2005 and 23 November 2005, found nothing detrimental to the company. This was also the case when a visit was made by representatives of the Undersecretariat for Defence Industries (SSM) at the Turkish Ministry of Defence. On the other hand, in a legal proceeding that took place not long ago against Yilmazlar in the Ramla Magistrates Court, a case was considered in which dozens of its workers were housed with considerable overcrowding in a residential house in a village in the centre of the country. At the request of the village, the Magistrates Court ordered the company to remedy the matter immediately (CC 2992/05 (Ram) Yagel v. Nomdar [18]). In its decision to deny an application for leave to appeal filed by Yilmazlar, the Tel-Aviv District Court (the honourable Judge S. Dotan) held that: ‘If we are dealing with the rights of the workers, there is no greater violation of their rights than housing them with inhuman overcrowding as described above’ (LCA (TA) 2782/05 Yilmazlar International v. Yagel [17]). The same conclusion was reached by this Court, which approved the decision and added (per the honourable Justice E. Arbel): ‘I agree with the remarks of the District Court with regard to the serious conditions in which the workers were placed — a hundred people in one overcrowded house’ (LCA 267/06 Yilmazlar International v. Yagel [9]).

20. Even though the facts are not entirely clear, it is sufficient that there is a real concern, which arises in this case, that the rights of the Yilmazlar workers are likely to be violated in various respects. In any case, this Court is not the appropriate framework for clarifying questions of fact (HCJ 4999/03 Movement for Quality Government in Israel v. Prime Minister [10], in the second paragraph of the opinion of President A. Barak). The focus of the matter, therefore, is upon the normative situation created by the Government Decision. This has created an opportunity, which is very considerable, for the abuse of Yilmazlar’s workers, as well as other foreign workers in the future. Experience teaches us that where there is an opportunity, there will always be someone who tries to avail himself of it. I cannot acquiesce in this.

The argument concerning the imminent expiry of the arrangement

21. I should further emphasize that the respondents should not rely on the assumption that in any case the entire arrangement is soon to expire,  at the end of 2007. First, I should say that I would  not be surprised if someone decides to extend it. Second, even though the decision of the Ministerial Committee for Foreign Workers no. FW/3 of 7 June 2005 states that ‘only the government has the power to approve, in very exceptional cases, an additional arrangement for the bringing or the employment of foreign workers as a part of reciprocal purchase transactions,’ I think that I will not be mistaken in my assessment that giving legal sanction to the Government Decision in this case will result in similar decisions in the future. Indeed, the normative impropriety of the decision is the heart of the matter, and this should not be countenanced, no matter how long it is valid.

22. My colleague the Vice-President bases his position mainly on the fact that the case of the Yilmazlar workers does not involve debt bondage. This is almost the entire basis for the distinction that he wishes to make between the case before us and the ruling made in the aforementioned Kav LaOved Worker’s Hotline v. Government of Israel [1].

Indeed, the question of debt bondage is of critical importance in the context of migrant workers, and a major factor in the cruel fate — no less — that ensnares them in host countries. In brief, the meaning of this concept is that a worker who wishes to obtain a visa to work in a foreign country is often required to pay huge sums to various agencies and middlemen, who are responsible for obtaining it. To illustrate the point, the average agency fee that a foreign worker is required to pay, when he earns in Israel an average wage of 500-1,000 US dollars a month, is 10,000 dollars and even more (Binding Migrant Workers to Corporations, supra, at page 23; Freedom Inc. — Binding Migrant Workers to Manpower Corporations in Israel, supra, at pages 12, 26). Most of the workers borrow money for this purpose in their countries of origin, and they thereby become debtors who pay high rates of interest. Often they are given a promise that they can work in Israel for several years, even though their residency permit in Israel is valid only for one year and there is no certainty that it will be renewed. Even a very small delay in receiving the wages — for example because of not turning up to work because of illness or another reason, may result in a situation in which this debt increases significantly to a point where it can no longer be repaid. This harsh reality, which threatens to bring serious economic disaster upon them, is the lot of foreign workers throughout the world. It is possible that it is the main problem in work migration in modern times. There are three petitions addressing this issue that are pending in this Court (HCJ 2405/06, HCJ 1193/07, HCJ 2768/07).

It also cannot be denied that when the two evils — debt bondage and being restricted to one employer — befall a worker simultaneously, the extent of the harm to him is greatly increased. In the absence of any bargaining power, not only does the worker have difficulty in earning the true value of his work (which is usually greater than what he is paid) and repaying his debt, but he will think twice  before he dares to complain about his conditions of employment, because of the fear that he will be dismissed, which means — in the absence of an alternative possibility of employment — that he will be unable to repay the debt. Indeed, a worker who is not burdened with a debt, but is bound to one employer, is in a better position that his fellow worker who both has a debt and is also bound to one employer.

23. But all of this is not capable of combining the two — the debt and the restrictive arrangement — into one entity that cannot be separated. It should be emphasized that we are dealing here with two different factors that are independent of one another, even though each one of them may be affected by the other in its deleterious effects. A restrictive arrangement without a debt is still a restrictive arrangement, and the harm that it causes, as I have described  above, is great.

It is therefore clear that there is no basis to the state’s claim that the special position of the Yilmazlar workers, who do not leave behind them any debt to be repaid when they come to Israel, lies in the fact that the restrictive arrangement does not cause them any real harm. This harm, the essence of which is the worker’s loss of his bargaining power, does not depend — it should be emphasized once again — on the existence of a debt and does not derive from it. It is independent. Can it seriously be argued that the removal of the element of debt is sufficient to make employers willing to pay their workers wages that will reflect the true value of their work, adhere strictly to the hours of employment, stop taking passports or provide fitting housing conditions? Is the absence of a debt capable of repairing the moral flaw inherent in the restrictive arrangement mechanism? I think that the answer to these questions is self-evident.

24. Another aspect of the argument, if I have understood it fully, is that in the absence of a debt there is nothing to prevent an employee, who is not satisfied with the conditions offered to him, from leaving Israel. Once again the same error has arisen, since, as I clarified above, often the option of leaving Israel and giving up the job is a bad one, both because of the alternative in the country of origin and because of the reliance that has already taken place. If there are workers — and there are very many of these — who are prepared to work under a regime of both a debt and a restrictive arrangement, with its double evils, then a fortiori there will certainly be those  who  will be prepared to work subject to the restrictive arrangement only, while suffering the harm that it causes them. I have already discussed the weakness of the argument of consent, and I need not elaborate further.

My colleague, the Vice-President, bases his position on remarks that were written in Kav LaOved Worker’s Hotline v. Government of Israel [1]. In this matter too I think I should make matters clear. Debt bondage was mentioned there as one of the factors that made the restrictive arrangement so evil, but it is not the only one, and not necessarily the dominant one. The violation of ‘the foreign worker’s autonomy of will’ — in the words of my colleague in paragraph 10 of his opinion above — does not arise solely from the debt bondage. The following is what I wrote in Kav LaOved Worker’s Hotline v. Government of Israel [1]:

‘The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates his human dignity and liberty in the most basic sense’ (paragraph 29 of my opinion).

These violations, regrettably, are unaffected by the absence of debt bondage.

All of the above shows that the special characteristics of the Turkish transaction cannot undermine the basis of the claim that the restrictive arrangement seriously violates the rights of the workers. I shall now consider how this violation is consistent with the public interest.

The public interest and the purpose of the administrative act

25. The contract with the Turkish Ministry of Defence is important to the respondents. It is important to the State of Israel. Their counsel emphasized the interests that it serves, in both the economic and the political spheres. First and foremost it would appear, and I am prepared to accept this as a fact, that without the offset component, the agreement would not have been made. The Israeli economy, and especially the fifth respondent, Israel Military Industries Ltd, would then have lost substantial income in foreign currency. IMI’s ability to enter into future transactions with the Turkish authorities would have been impaired. It would have to suffer the consequences of a breach of contract. The effects on workers in the security industries would have been considerable, and possibly employment in the economy as a whole would have been affected. It is possible that in the long term this would have even harmed the security of Israel. Moreover, it cannot be denied that the agreement plays a part in Israel’s relationship with Turkey, a main ally without any doubt, and it is difficult to exaggerate the importance of maintaining good relations with it. In so far as the agreement, with its various elements, can benefit the interests of that country, this too is indirectly desirable for Israel, its ally. Indeed, ‘the phenomenon of work migration is an inseparable part of international relations’ and of ‘the mutual interest of governments in developing relations’ (Kemp and Reichman, supra, at page 10).

The realization of this interest by means of implementing the Turkish transaction imposes a duty on Israel, which is not at all a light one. It is obliged to carry out its share in the offset mechanism, and for this purpose it was required to take upon itself an undertaking with a significant financial value. A particularly creative mind gave rise to the idea that it would be possible to make use of human beings in order to cover a part of this liability. As the state explained in its response to the petition (in paragraph 9 of the preliminary response), of the two hundred million dollars that Israel is required to ‘return’ to Turkey, approximately 28 million dollars are supposed to be derived from the employment of the Turkish workers (which is only approximately fourteen per cent of the total amount). The restriction of the workers to their employer makes it much easier to reach this target. It ensures that the majority of the wages will be transferred in an orderly manner to Turkey. It is particularly important in view of the fact that the Turkish Ministry of Defence has taken upon itself the task of supervising the implementation of the agreement and it refuses to hold discussions with several different employers but is prepared, and it has its reasons, to work only with Yilmazlar.

26. When  enquiring into the dominant purpose of an administrative act such as the one undertaken by the government of Israel in the case of the Yilmazlar workers, we should of course consider those aspects that indicate, in so far as possible, the essence of the act and properly reflect the reality and the context in which it arose (see and cf. HCJ 1030/99 MK Oron v. Knesset Speaker [11], at page 665; CA 10078/03 Shatil v. State of Israel [12], at paragraph 26 of my opinion)). In view of the aforesaid, it is possible to determine without any difficulty that a main purpose of the Government Decision is to create an effective mechanism of discharging a part of the offset debt, by means of ensuring that Yilmazlar has foreign manpower available at all times.

But this is not the only purpose of the restrictive arrangement mechanism. It serves another purpose. The concern of the authorities that the floodgates will be opened, after they have been erected with considerable effort in recent years and prevented Israel from being inundated by legal and illegal migrant workers, is what led them to act so that the number of Yilmazlar’s workers would be limited and watched carefully at all times, and that no use would be made of the narrow route that was provided for individual cases in order to bring hundreds and thousands of others into the Israeli economy.

These, then, are the two dominant purposes of the decision that is the subject of this petition. They seek to realize important interests, and to this end the government of Israel took the liberty of restricting the rights of the Yilmazlar company’s workers. In order to determine whether the government did this lawfully, we are required to consider the matter — just as we did in Kav LaOved Worker’s Hotline v. Government of Israel [1] — from the perspective of the formulae that we have borrowed from the limitations clauses in the Basic Laws.

Judicial scrutiny

27. The first stage in the process of scrutiny seeks to ascertain whether the purposes are proper ones. With regard to the first purpose of which I spoke above, I think that it can be determined with the utmost clarity that it is not a proper purpose. Whoever looks at the facts of the case before us cannot, in my opinion, fail to be outraged at the use that has been made of these workers as an instrument and a means of furthering the interests of the Israeli government and commercial companies. After all, of what concern to the Turkish worker are international relations? What does he care for the success of the security industries in Israel? Of what interest is it to him that tanks are improved for his country’s army? What is the source of the obligation, for which that worker is required to pay with his liberty, his dignity, his ability to earn a livelihood and his hopes for a better future for his family, in order to further these interests? What justification is there that he should be subjected to the binding force of the restrictive arrangement? (cf. HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [13], at para. 6 of my opinion). What justification is there that in addition to the consideration that he is required, in the usual manner, to provide within the framework of a free and fair contract with an employer, he should be required to pay an additional price, from which he does not benefit and with regard to whose nature and character he was never consulted?

28. This purpose is inherently inconsistent with the ethical foundations on which the State of Israel was established. The basic principles of liberal morality have taught us that a human being is always an end and not merely a means to an end. Kant wrote:

‘… der Mensch und überhaupt jedes vernünftige Wesen existiert als Zweck an sich selbst, nicht bloß als Mittel zum beliebigen Gebrauche für diesen oder jenen Willen… dagegen vernünftige Wesen... das nicht bloß als Mittel gebraucht werden darf... mithin sofern alle Willkür einschränkt (und ein Gegenstand der Achtung ist).’

‘… man and generally any rational being exists as an end in himself, not merely as a means to be used arbitrarily by this or that will…; but rational beings… are… something that should not be used merely as a means, and consequently all arbitrariness is thereby eliminated (and he is an object of respect)’ (Immanuel Kant, Groundwork of the Metaphysic of Morals).

To this I would add that, prima facie, even if a person is required to take part in achieving any purpose, it should be one in which he is directly the goal of that purpose. Any other approach is tantamount to treating a human being as an object, and in our case, as the property of the employer. Justice M. Cheshin said: ‘An inanimate object and likewise an animal may be taken by its owner from place to place, transferred from one person to another, and no one will object. But man is different; nothing should be done to him against his will’ (HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [14], at p. 575). And Justice D. Beinisch emphasized: ‘The dark ages in which a person could be regarded as the property of another person have passed’ (CrimA 11196/02 Frudenthal v. State of Israel [7], at p. 47). Particularly appropriate here are remarks written by my colleague  Vice-President Rivlin himself in New Federation of Workers v. Israel Aerospace Industries Ltd:

‘… We should not also include within the scope [of the employer’s property rights] the power to hold onto the worker, even if only as a premise. I said as a premise, because no one disputes that the worker always has the power to leave his new employer, just as he had the power to leave his previous employer. But a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative. There can only be one premise, the former one, if we agree that the employer’s property rights will never also include control of the worker’s liberty… The liberty of the worker to choose his employer is derived from the right to liberty, which is enshrined in the Basic Law: Human Dignity and Liberty, and from the value of human dignity, which is the foundation of the aforesaid Basic Law… This liberty of the worker is derived directly from the outlook that the human being is an end and not a means’ (ibid., at page 595).

These remarks were admittedly written with regard to Israeli workers, but I do not know what moral basis there is for distinguishing between them and their foreign counterparts. The principle is simply that the idea that Yilmazlar’s workers can be used as a tool for performing the obligation in a commercial transaction between third parties is immoral and cannot stand. The restrictive arrangement mechanism, which turns the migrant worker into an object, cannot be accepted in a normative environment that seeks to emphasize — in the course of implementing the processes of globalization and openness — the value of the human being, every human being, as a subject rather than an object (Stuart Rosewarne, ‘Globalization and the Recovery of the Migrant as Subject: “Transnationalism from Below”,’ 15(3) Capitalism, Nature, Socialism 37 (2004); Ivan G. Alvarado & Hilda Sánchez, ‘Migration in Latin America and the Caribbean: A view from the ICFTU/ORIT,’ 129 Labour Education 101 (2002), at page 104). Such an environment, which raises the banner of the autonomy of the human will and the dignity of the human being, cannot stand idly by when it sees, in the words of the poet Yehuda Amihai: ‘How people who went out whole are returned in the evening to their homes like pocket change’ (Yehuda Amihai, ‘Out of three or four in a room,’ Poems 1948-1962 (2002), at page 97).

29. I might have ended here, since the impropriety of the dominant purpose of an administrative act is sufficient in order to annul the act itself . But since a similar conclusion — that the act should be set aside — also arises from a consideration of the second purpose of which I spoke, I should also add the following: admittedly, preventing a possibility that the employment market in Israel will be flooded with  migrnat workers is likely, as a rule, to be regarded as a proper purpose, and therefore it will pass the first part of the test of judicial scrutiny. But my opinion is that the measures that were adopted to realize this purpose do not satisfy the second part of the test of judicial scrutiny, by which I mean the principle of proportionality.

30. I have difficulty in imagining what motive may induce a  migrant worker who enjoys fair conditions of employment that are compatible with his market value to stop working for his employer. If the picture is so rosy, and reflects — in the words of counsel for Yilmazlar — the ‘huge advantage given to the Turkish workers in the offset agreement’ without which ‘they would not be able to come and work in Israel at all’ (pages 708 of the statement of reply), why is there any need for a restrictive arrangement? One is compelled to wonder why this ‘huge advantage’ is not capable of ensuring loyalty to the employer. Is it perhaps because the main advantage is actually enjoyed by the Yilmazlar company, which, because of the power of control given to it by the restrictive arrangement mechanism, must be an object of envy to other employers?

It is precisely the restrictive arrangement that threatens to deprive the worker of fair conditions that is likely — and this is the heart of this case — to provide an incentive for workers to leave their employers, and to result in an increase in the market of unlicensed workers and the breakdown of control over what happens in this sphere. As I said in Kav LaOved Worker’s Hotline v. Government of Israel [1], figures that were compiled by the Ministry of Industry, Trade and Employment indicate that there is such a connection between a restrictive arrangement and illegal work, since the latter is ‘a rational act necessitated by reality’ in the efforts of the  migrant worker to improve his conditions (Yoram Ida, Factors Influencing Foreign Workers to Revert to Illegal Employment (Research Department of the Ministry of Industry, Trade and Employment, 2004), at page 57). That research found that the phenomenon of foreign workers in Israel resorting to illegal employment was not usually the result of a worker receiving a better financial offer, nor of the expiry of his residency permit. It was mainly the result of the worker’s desire to extricate himself from the difficulties that he experienced in consequence of unfair employment conditions enforced by the employer (ibid., at pages 64, 74; see also Malsiri Dias & Ramani Jayasundere, ‘Sri Lanka: Good Practices to Prevent Women Migrant Workers From Going Into Exploitative Forms of Labour,’ 9 GENPROM Working Paper 26 (ILO, Geneva, 2000)). From this we can see the lack of a rational connection between the purpose and the means adopted to achieve it, since the restrictive arrangement not only does not reduce the illegal employment market but it is one of the factors creating it. An additional conclusion is that the restrictive arrangement is a more harmful measure than other measures that could be adopted in order to realize the purpose under discussion, especially the measure of ensuring that workers are given their rights.

31. The proportionality test in the ‘narrow’ sense is also not satisfied, since in my opinion, as I explained above, the impropriety in the restrictive arrangement is greater than the benefit that it provides. In this respect I should add the following: it is hard to dispute the contribution of work migration to economic success in the host country and to ensuring the existence of industries in which it would otherwise be difficult to recruit workers, by which I am referring especially to the construction and agriculture industries. This can be shown clearly by Germany after  World War II, the markets of the United States and Canada today and what is happening in additional countries (see, for example, Michael J. Piore, ‘Illegal Immigration to the U.S.: Some Observations and Policy Suggestions’, in Illegal Aliens: An Assessment of the Issues 26 (1976). But the foreign work market does not only make a positive contribution. The public interest is not monolithic, and some aspects of it may be harmed — even from a narrow economic viewpoint of the interests of the economy — as a result of acquiescing in a reality where  migrant workers are deprived of their rights. Thus, inter alia, there is a concern that unemployment may be increased among local workers and the level of their salaries may be adversely affected by being ‘dragged’ down by a whole sector of  migrant workers whose salary is inconsistent with what is required by law. The willingness to ignore the value of having fair employment relations in the economy is a two-edged sword, which will ultimately harm local workers. Cheap labour also removes the incentive to develop new technologies and hi-tech industries, and it leads instead to an excessive focus on manual labour industries that impede the development of the economy. There are other negative aspects as well (see and cf. O. Yadlin, ‘Foreign Work in Israel,’ Menachem Goldberg Book 337 (2001), at page 342). All of these, which are strengthened when the restrictive employment mechanism operates, should not be ignored. We should also consider the possible risk of harm to the international standing of the State of Israel as well as its image in the eyes of the exploited community of workers, who ultimately return to their country of origin and share their impressions with others.

On membership of the community of civilized nations

32. In this last context, I would add another significant aspect that may have remained, unjustifiably, in the background of the discussion of the technical aspects of the restrictive arrangement. I am referring to the responsibility that the State of Israel is obliged to take upon itself as a member of the community of civilized nations and on the basis of its commitment to universal values of justice and morality (CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [15], at p. 206). In my opinion, these do not allow the continued implementation of the restrictive arrangement. Even if the  migrant worker does not have an inherent right to work in Israel, the state has a duty not to harm him once he comes within its borders, especially after the state has itself invited him to do so. The spirit of the twenty-first century, a spirit of openness and transnational cooperation, cannot allow this. A strange and questionable combination of globalization on the one hand, and adherence to old laws of serfdom and bondage on the other, is unacceptable. Indeed, in the first part of my remarks I gave many disturbing examples of the harm that restrictive employment arrangements inflict on foreign workers all around the globe, including in progressive and enlightened western democracies. I do not think that the conclusion that follows from this is that we should regard restrictive arrangements as a necessary evil or — worse still — as a desirable and acceptable phenomenon. We can learn from the bad experience of others, and we should not hasten to adopt into our legal system anything other than what should be adopted. In the words of Justice A. Witkon: ‘It is possible that in one question or another the [Israeli] public will have an outlook of its own that is different from the outlook of other peoples, and it need not be said that in such a case we will be guided solely by the outlook of our public’ (CA 337/62 Riezenfeld v. Jacobson [16], at page 1026 {113}). The rights of the weak are naturally not the subject of great popularity and enthusiasm, but they are rooted in a solid and well-founded ethical outlook. This is the direction in which our social conscience leads us, and we can only hope that its light will also shine on others.

With regard to work migration in Europe in the 1970s, the Swiss novelist and playwright coined a phrase that many  quote. ‘Wir riefen Arbeitskräfte, und es kamen Menschen’ (‘We called for workers, and human beings came’). Indeed, the Yilmazlar workers, before they are workers, are human beings. We should recognize this. This should be reflected in our legal arrangements. This is how we should treat the migrant worker who enters into our gates.

 

 

Justice E. Hayut

My colleague Justice E. Levy has once again set out in his comprehensive opinion the basic principles that this Court addressed not long ago in HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]. By virtue of these principles, the decision in Kav LaOved Worker’s Hotline v. Government of Israel [1] set aside a procedure that was practised in the agriculture, nursing and manufacturing industries, according to which the residency and work licence of foreign workers was conditional upon being bound to a specific employer. With regard to this procedure, my colleague Justice E. Levy said in that case (in para. 29 of his opinion):

‘The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates the individual’s human dignity and liberty in the most basic sense.’

These pertinent remarks were adopted by President A. Barak and by Vice-President Emeritus M. Cheshin who added some remarks of his own in that case, and as a result the arrangements that bound foreign workers to their employers were set aside. It seems that there is not, nor can there be any dispute between my colleagues with regard to the basic principles underlying the ruling made in Kav LaOved Worker’s Hotline v. Government of Israel [1], but my colleagues are in disagreement with regard to the implementation of this ruling in the special circumstances of the case before us. In this dispute, I agree with the opinion of my colleague Vice-President E. Rivlin, and like him I too am of the opinion that the offset arrangement is an exceptional arrangement with special characteristics that justifies the exclusion of the Government Decision under consideration in this petition from the rule that invalidates restrictive arrangements. Notwithstanding, I would like to emphasize that in my opinion it is possible to allow this arrangement as an exception inter alia because it is limited in time. But if the concern that my colleague Justice E. Levy raises is realized, and the denial of the current petition ‘will result in similar decisions in the future,’ then it will be necessary to re-examine the legality of those decisions and it is not improbable that a different conclusion will be required in those cases. I would also like to emphasize that in view of the restriction imposed on the Yilmazlar workers when they are in Israel that prevents them from changing over to another employer, there is in my opinion an extra and special duty to protect the rights of these workers, and it is to be expected that the respondents will take care to do this and will continue to carry out regular and strict supervision of their conditions of employment.

 

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

7 Tishrei 5768.

19 September 2007.