Abstract

HCJ 5658/23 Movement for Quality Government v. Knesset

Date of judgment: 20 Tevet 5784 (Jan. 1, 2024)

Before: President E. Hayut, Deputy President U. Vogelman, Justices I. Amit, N. Sohlberg, D. Barak-Erez, A. Baron (emer.), D. Mintz, Y. Elron, Y. Wilner, O. Grosskopf, A. Stein, G. Canfy-Steinitz, K. Kabub, Y. Kasher, and R. Ronen.

A majority of the Supreme Court (12 of 15 justices) held that the Court held jurisdiction to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in which the Knesset deviated from its constituent authority.

A majority of the Court (8 of 15 justices) further held that Amendment No. 3 to Basic Law: The Judiciary, which comprehensively eliminated judicial review of the reasonableness of decisions of the government, the prime minister, and government ministers, should be declared void. This, in view of the serious, unprecedented harm to the core character of the State of Israel as a democratic state.

In view of the importance of the issues raised by the petitions against Amendment No. 3, the Court held an en banc hearing on Sept. 9, 2023. The events of October. 7, 2023, unrecognizably transformed Israeli reality, and the country has since been at war with murderous terrorist organizations. But inasmuch as Amendment No. 3 remains in force, and given the final date upon which President (emer.) Hayut and Justice (emer.) Baron could render judgment in accordance with the Courts Law [Consolidated Version], 5744-1984, the decision on the petitions was handed down.

The Court majority (per President Justice E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice Y. Wilner, Justice O. Groskopf, Justice A. Stein, Justice G. Canfy-Steinitz, Justice K. Kabub, Justice Y. Kasher, and Justice R. Ronen concurring) held that in exceptional, extreme cases, the Supreme Court – sitting as High Court of Justice – holds the authority to void a Basic Law that constitutes a deviation from the constituent authority of the Knesset. In this regard, the Court already held in HCJ 5555/18 Hasson v. Knesset (2021) (the “Nation State” case) that the Knesset, as a constituent authority, is not “all powerful”, and that it does not hold the authority – even by means of a Basic Law – to deny or facially contradict the core character of the State of Israel as a Jewish and democratic state. Given these limitations, and in order that it be possible to enforce them, a majority of the Court was of the opinion that the Supreme Court’s authority to conduct judicial review over Basic Laws must be recognized. Some of the justices based this conclusion upon Israel’s unusual constitutional structure, which is, inter alia, characterized by a lack of any designated, separate process for adopting constitutional norms; the problematic practice of enacting and amending Basic Laws that testifies to a contempt for the Basic Laws and to their being turned into pawns of the political majority; and upon the role of the Court in protecting the constitutional enterprise. In this regard, some of the justices emphasized Israel’s Declaration of Independence as a basis for the judicial review of Basic Laws, while others grounded that authority in Basic Law: The Judiciary, which grants the High Court of Justice authority to grant relief for the sake of justice and to issue orders to all state authorities.

A majority of the Court (per President  E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice O. Groskopf, Justice K. Kabub, and Justice R. Ronen concurring) held that the amendment that was the subject of the petitions – Amendment No. 3 to Basic Law: The Judiciary – was an extreme case in which the Knesset deviated from its constituent authority and therefore, there was no alternative but to declare the amendment void. The Court emphasized that the exceptional, sweeping language of the amendment prevented all courts from adjudicating and hearing arguments upon the reasonableness of decisions of the government, the prime minister and government ministers in regard to every decision, including a decision to refrain from exercising authority. The majority was further of the opinion that interpretation of the amendment left no room for doubt that it applies to capricious decisions and to decisions that are unreasonable in the extreme. The result is an unprecedented infringement of two of the core characteristics of the State of Israel as a democratic state – the separation of powers and the rule of law. In this regard, it was noted that the amendment significantly increases the substantial power already concentrated in the hands of the government and its ministers, while blocking the possibility for an individual to obtain relief in a wide range of situations in which grave harm may be inflicted to his important interests as a result of governmental actions. It was further emphasized that the amendment leads to a situation in which the most significant elements of the executive are effectively exempted them from their duty to act reasonably, it leaves whole areas without effective judicial review, it prevents the protection of such public interests as ethical conduct and administrative regularity, and may lead to a fundamental change of the state’s civil service, severe harm to the independence of the law enforcement authorities, and exploitation of government resources for political gain in the electoral process.

Justice Y. Wilner was of the opinion that the amendment could be upheld by means of narrow construction and therefore, the Court should not consider voiding it. Justices Stein and Canfy-Steinitz were of the opinion that it is possible and would be appropriate to construe the amendment narrowly, and that there is, therefore, no need to intervene inasmuch as it a far cry from those instances in which it might be said that the Knesset deviated from its constituent authority. Accordingly, Justices Wilner, Stein and Canfy-Steinitz were of the opinion that the amendment should be construed such that it would prevent judicial review only on the basis of reasonableness as it has developed since the Court’s decision in HCJ 389/80 Dapei Zahav v. Broadcasting Authority (1980), which focuses upon examining the balance of the various considerations for the governmental decision (“reasonableness balancing”). In accordance with their approach, the amendment, as so construed, would still allow for intervention in the case of capricious decisions in which the Court could have intervened even prior to Dapei Zahav. Justice Kasher refrained from deciding upon the question whether the amendment could be narrowly construed, holding that despite the amendment’s infringement of the separation of powers and the rule of law, it did not rise to the level that would justify the High Court’s intervention in a Basic Law.

Justices Sohlberg and Mintz dissented from the majority view in all that concerned the Court’s jurisdiction in principle to conduct judicial review of Basic Laws, as well as in regard to its authority to decide upon the question itself, noting that there is no legal source that would permit such review. According to their approach, even were one to ignore the problem of the Court’s jurisdiction, the amendment stood far from the narrow limits established by the majority, and they noted that even were it proper to adopt a narrow exception that would allow intervention in Basic Laws in extreme cases of infringement of the basic rights of the individual, the arguments in regard to Amendment No. 3 were not ripe for decision in that the amendment had yet to be interpreted and its boundaries had yet to be set. Therefore, it could not be assumed that its consequences would be as severe as suggested.

 

Following are summaries of the opinions of each of the justices (in the order of their appearance in the judgment):

President (emer.) E. Hayut:

In her opinion, President (emer.) Hayut reiterated the Court’s holding in HCJ 5555/18 Hasson v. Knesset (2021), according to which the Knesset’s power as a constituent authority is not unlimited, and that it is not authorized to enact a Basic Law that denies or directly contradicts the core character of the State of Israel as a Jewish and democratic state. According to the President (emer.), this conclusion derives from the “elements of the constitution” developed since the earliest days of the state – the Declaration of Independence, the Basic Laws, the laws enacted by the Knesset, and the case law of the Supreme Court. The President (emer.) further held that given the unique character of Israel’s constitutional regime – the enacting of a constitution “chapter by chapter”, the absence of a rigid process for its enactment and amendment, and the political majority’s control over the exercise of constituent authority – the limitations upon the Knesset’s power cannot be left unenforced and exempt from judicial review through which the Court can intervene in those extreme, exceptional cases in which the Knesset deviates from the bounds of its constituent authority in enacting a Basic Law.

According to the President (emer.), Amendment No. 3 to Basic Law: The Judiciary is an extreme case in which the Knesset deviated from its constituent authority. In this regard, it should be emphasized that given the existing Israeli situation, judicial review is the only effective check upon the substantial power concentrated in the government and its ministers. Therefore, the amendment that is the subject of the petitions – which comprehensively denies the Court’s authority to conduct judicial review of the reasonableness of all decisions of the government, the prime minister, and government ministers, and even blocks any possibility of addressing such questions – strikes an extremely severe blow to the principle of the separation of powers and the principle of the rule of law. This extreme harm to two of the quintessential characteristics of the State of Israel as a democratic state (the significance of which the President (emer.) addressed at length in her opinion) can significantly affect the individual and the public in general in an unprecedented way. Therefore, the President (emer.) held that there is no alternative to holding that in enacting Amendment No. 3, the Knesset deviated from its constituent authority and the amendment must be declared void.

Justice Y. Wilner: Justice Y. Wilner concurred with the opinion that the Court holds jurisdiction to review Basic Laws. In her opinion, this is also the case by virtue of sec. 15(c) of Basic Law: The Judiciary, which authorizes the Court to “grant relief for the sake of justice”. She further held that in view of the ambiguity of the term “reasonableness” adopted by the constituent authority in the framework of the amendment, a question arises as to its meaning. Justice Wilner resolved this question by means of an affirming construction according to which the repeal of reasonableness refers only to “reasonableness balancing”, i.e., the sense it was given in Dapei Zahav. In her opinion, this conclusion is required by the firmly established rules of the Court according to which a construction that affirms the law is to be preferred to one that may lead to its voidance. In her opinion, such an affirming construction is linguistically possible, it is grounded in the subjective purpose, and it best realizes the objective purpose. Given the said construction, the amendment does not strike a mortal blow to the democratic identity of the State if Israel. This is so, inter alia, in view of the fact that the amendment does not detract from the duty of the government and its ministers to act lawfully and does not prevent effective judicial review in accordance with the other grounds for such review. And note that while cases may arise in which it will not be possible to grant relief as in the past, nevertheless, while that may be regrettable, we will be concerned with decisions made with authority, following a proper administrative process, in good faith, in the absence of irrelevant considerations, that are proportionate, not arbitrary, non-discriminatory, and not fundamentally unfounded. Justice Wilner further noted that the approaches that, over the years, called for restoring reasonableness to its original meaning were never deemed anti-democratic. She further explained that in examining the constitutionality of the amendment, the Court must take account only of the existing legal situation, and not give heed to arguments concerning future legislative bills. Therefore, Justice Wilner held that the petitions should be dismissed while interpreting the amendment in accordance with an affirming construction.

 

Justice Y. Elron:

Justice Elron was of the opinion that the petitions should be dismissed. He reiterated his principled view that the mandate granted to the High Court of Justice to examine the justification for decisions by the members of the Knesset is limited, and that in the absence of an express norm that limits the authority of the Knesset to enact Basic Laws or that establishes the manner for the exercise of that authority, the continued development of doctrines that grant the Court authority to set the limits for adopting the constitution constitutes a role reversal. Justice Elron further noted his position in regard to the possible existence of a narrow exception in the case of exceptional, extreme cases of harm to fundamental individual rights as a last resort. As for the “cause of reasonableness”, Justice Elron emphasized that if the limitation imposed by Amendment No, 3 meets the test for intervention in a Basic Law, the door that is opened for the Court’s intervention is not narrow at all. In addition to his position in principle, Justice Elron was of the opinion that the petitions could also be dismissed on the grounds that the arguments against Amendment No. 3 were not ripe. He explained that where the Court is of the opinion that it would be proper to consider intervening in the content of a Basic Law, this should be carried out only after examining the law’s application and the definition of its scope as interpreted by the Court. In the instant case, the courts might establish that the import of the amendment is the abolition of the Dapei Zahav rule, and nothing more. If that be the case, then the magnitude of the amendment’s harm to the various democratic principles is far from justifying voiding a provision of a Basic Law. In conclusion, he wrote: “I am firm in my conviction that this is not the time to shake the constitutional foundations of our state. It would be better that we defer the matter to the appropriate time, if and when a decision will be required on the basis of the facts of the case. I fear that at the present time, the harm that will be caused by undermining the foundations of Israeli constitutional law due to the voiding of Amendment No. 3 may be many times greater than the harm in leaving it in place.”

 

Jusitce A. Stein:

Justice A. Stein held that the enactment of laws and of Basic Laws by the Knesset is subject to the boundaries delineated in the Declaration of Independence. This is the case inasmuch as the Proclamation [of the Provisional Council of State] and the Law and Administration Ordinance – which were enacted and promulgated upon the establishment of the state – expressly established that the legislative authority of the Provisional Council of State, which transferred that authority to the Knessets that would succeed it, is grounded in the Declaration of Independence. In addition, Justice Stein held that the amendment to the Basic Law that is the subject of the petitions does not contradict the principles of the Declaration of Independence, inasmuch as it only repeals the Supreme Court’s authority to void government decisions on the basis of unreasonableness as an independent and exclusive cause, while preserving its authority to void government decisions that are found to be facially capricious due to irrelevant considerations, arbitrariness, lack of good faith, and other causes for invalidation. In the opinion of Justice Stein, this narrowing of judicial review returns administrative law to its status prior to the Dapei Zahav case – which recognized unreasonableness of a governmental decision as an independent cause for invalidation – as was expressly stated in the explanatory notes of the amendment’s bill. For this reason, Justice Stein held that the amendment that is the subject of the proceedings does not uproot judicial review and therefore does not breach the requirement of basic justice in the Declaration of Independence. This led Justice Stein to the conclusion that the amendment under review is constitutional.

 

Justice I. Amit:

In his opinion, Justice Amit addressed the Israeli legal system’s lack of checks and balances for restraining the government, which grants it unusual power. This situation leads to the conclusion that what is needed is additional mechanisms for strengthening the democratic regime, whereas the amendment that is the subject of the proceedings moves in the opposite direction. It further empowers the executive branch and harms the fundamental principles of the legal system.

Justice Amit addressed the sweeping language of the law, which appeared to apply to reasonableness in all its forms in the case law, without distinguishing among different types of decisions. He explained that the reasonableness doctrine treats of the day-to-day life of the citizen, and its main power and effect are not in the post-facto examination of an administrative decision in court, but rather ab initio, at the stage of arriving at and framing the decision. In the absence of the reasonableness cause, the duty of reasonableness will wither and die, which may leave the public with no defense, and reshape the civil service. The other tools offered by administrative law cannot fill the gap that would result, and the possibility for examining a decision by means of parliamentary oversight or public pressure cannot provide a real alternative to judicial review.

The amendment to the Basic Law inflicts harm upon the democratic core of the state: the right to access to the courts, the principle of the separation of powers and the principle of distribution of power upon which that rests, and upon fundamental constitutional rights. The amendment also undermines several aspects of the rule of law – placing the government and its ministers above the law; facilitating improper appointments and dismissals, including of the “gatekeepers”; immunity in regard to refraining to exercise administrative power and ignoring professional considerations; a lack of supervision over an interim government; and a fear of elections tampering.

 

Justice G. Canfy-Steinitz:

Justice G. Canfy-Steinitz agreed that the Supreme Court has the authority to conduct judicial review of Basic Laws, but in her view, an examination of the amendment in accordance with its proper interpretation leads to the conclusion that it does not meet the very narrow criteria that would justify voiding a Basic Law.

The issue of the judicial review of Basic Laws raises complex questions that would be better resolved in the public arena. When the Court is required to address this question, Justice Canfy-Steinitz is of the view that the Basic Laws provide a textual foundation for a limitation that the Knesset assumed upon itself, subjecting its constituent power to preserving the character of the State of Israel as a Jewish and democratic state. This limitation is grounded in the existing Basic Laws, including sec. 17A(a)(1) of Basic Law: The Knesset, the purpose of which is to protect the core constitutional identity of the state and prevent a change of the system “from within”. The Court’s authority to review Basic Laws derives from the said limitation in cases where the Knesset deviates from its constitutional limits – but this is as narrow as “the eye of a needle” and should be exercised only in the most rare cases of mortal harm to the core identity of the state.

The amendment was adopted against the background of years of debate on the scope of reasonableness. While the broad, sweeping language of the amendment raises problems, it is a far cry from threatening to undermine the foundations of Israeli democracy. On the interpretive level, the amendment should be narrowly construed, such that it would prevent judicial review on the basis of reasonableness “balancing” but not on the basis of the “narrow” cause of reasonableness. Under this construction, the practical ramifications of the amendment are very limited, inasmuch as recourse to reasonableness balancing can be replaced by other grounds for review in administrative law. The few decisions that cannot be reviewed under the amendment are decisions that by their nature and by the normative position of the legislature – which must be respected – cannot be examined in terms of reasonableness balancing. This would not strike a mortal blow to the rule of law and the principle of the separation of powers.

 

Justice R. Ronen:

Justice Ronen concurred in the opinion of President (emer.) Hayut. She held that the power of the Knesset, as a constituent authority, is limited, such that it cannot enact Basic Laws that significantly infringe the two core characteristics of the State of Israel – its being a Jewish and democratic state. She further held that the Supreme Court holds jurisdiction to conduct judicial review of Basic Laws.

Justice Ronen also held that the possibility of a narrow construction of the amendment must be rejected inasmuch as it has no basis in the language of the amendment, clearly contradicts the subjective purpose of the amendment, and provides the Court no clear operative instruction as to how to examine government and ministerial decisions in the future. This is the case, inter alia, in view of an examination of the legal situation before and after the Dapei Zahav case, and rejecting the assumption according to which an instruction to return to the “pre-Dapei Zahav” situation is significant. It was therefore held that the amendment, properly construed, denies the Court the possibility of examining any claim whatsoever that touches upon reasonableness.

Justice Ronen addressed the standard of review applicable to the amendment and held that since the amendment undermines the judiciary’s ability to review the executive, while materially changing the existing system of balances among the branches, it raises a suspicion concerning Knesset’s inherent conflict of interests. This fear is intensified by the fact that the amendment was adopted without the consent of any of the members of the opposition and its immediate entry into force. That being the case, she held that a somewhat more rigorous standard of review should be applied to the question of whether the harm to democratic characteristics constitutes a deviation from constituent authority.

In view of the interpretation of the amendment and the denial of judicial review in regard to all aspects of reasonableness, Justice Ronen’s conclusion was that the amendment inflicts significant harm to the core values of the democratic system. In this regard, inter alia, the subject of appointments and dismissals of gatekeepers was emphasized. Therefore, in view of the standard of review noted above, Justice Ronen held that the Knesset deviated from its authority in adopting the amendment, and it should be declared void.

 

Justice Y. Kasher:

Justice Kasher concurred with the opinion of the President (emer.) according to which the constituent authority of the Knesset is limited in that it is subject to the definition of the State of Israel as a Jewish and democratic state. In addition, the Hight Court of Justice holds the authority to decide that the Knesset has deviated from its constituent authority and order the voiding of a Basic Law. The test for a deviation from the Knesset’s constituent authority was established in the Hasson case – a narrow test expressed in the question whether the amendment denies the core democratic identity of the state or inflicts mortal harm upon the minimal core characteristics of its identity as a Jewish and democratic state.

In the opinion of Justice Kasher, the amendment under review weakens judicial review of the government and its ministers and thereby harms the separation of powers and the rule of law. However, not every shift in the balance point between the judiciary and the executive by means of narrowing judicial review of the executive constitutes a denial of the core democratic identity of the state. In his opinion, the amendment will lead to a certain weakening of judicial review over the executive. However, it is not expected to lead to a situation in which the said review will be ineffective, and thus there is no justification for voiding the amendment.

Justice Kasher concluded in stating that the question that he was called upon to decide is not to what extent he agrees with it and whether, in his view, it were better had it not been enacted, but rather whether the amendment that is the subject of the petitions rises to the level of the extreme circumstances – a mortal blow to the minimal core characteristics of the State of Israel’s identity as a Jewish and democratic state – that alone would justify the Court’s exercise of its very far-reaching authority to declare an amendment to a Basic Law void. Justice Kasher stated that in his opinion, the answer was no, and thus his conclusion.

 

Deputy President U. Vogelman:

The Deputy President held that the constituent authority cannot undermine the Jewish and democratic character of the state, and that the characteristics of the Israeli constitutional enterprise and the actual use of the constituent authority lead to the conclusion that the Court is the institution that holds the authority to decide whether the Knesset has deviated from its constituent authority. The Deputy President held that Israel’s unique situation, in which the control of executive, legislative and constituent powers are all effectively held by the government, as well as the shortcomings of the system for establishing constitutional provisions, have bearing on the threshold for the Court’s intervention.

 As for Amendment No. 3, the Deputy President held that barring any possibility of the Court addressing a claim of unreasonableness in regard to the ministerial level constitutes a mortal blow to the principle of the rule of law and the principle of the separation of powers. This harm is expressed in three spheres: first, for the individual who is harmed by an unreasonable decision and whose access to the Court is barred by the amendment; second, at the ministerial level, regarding  which the amendment removes a significant limitation and erodes the already shaky system of checks and balances of the Israeli legal system; third, regarding the legal system as a whole, by intentionally creating a system in which “there is law but no judge”.

The amendment’s harm in these three spheres is particularly severe because it is comprehensive and absolute: it prevents every court from addressing the cause of reasonableness in regard to decisions at the ministerial level; it extends to every decision at that level; it lacks mechanisms for oversight or other balances; the other causes of action in administrative law cannot provide an effective alternative.

The Deputy President added that a narrow construction of the amendment is not possible in this case. This is so, inter alia, because the suggested interpretive theories have no foothold in the language of the amendment and do not provide a coherent alternative. In any case, he held that even under such interpretation, the severe harm to the rule of law and the separation of powers would remain.

 

Justice D. Mintz:

Justice D. Mintz emphasized that every agency and every judicial instance can act only within the boundaries of the authority granted to it by law. The Court must take care to act strictly within the bounds of its authority, with the same strictness that it applies when the question of authority arises in regard to other authorities. In this regard, jurisdiction to review laws does not rest upon strong foundations, and there is certainly no source of authority that would permit the Court to address the validity of a Basic Law or void it. The development of doctrines that examine the content and substance of Basic Laws ex nihilo undermines fundamental principles of democracy, among them the separation of powers, the legality principle, and the rule of law. Voiding a Basic Law on the basis of a vague doctrine and an undefined formula comprises a heavy price from a democratic perspective, particularly when it involves an issue in regard to which the Court itself has an “institutional conflict of interests”.

From this perspective, there is no need to address the amendment on the merits. In any case, the discussion of its construction is premature inasmuch as its boundaries have yet to be shaped and put into practice. In regard to the position of the majority, Justice Mintz emphasized that a constitutional provision should be interpreted from a “broad perspective” and not “technically”, in a manner that reflects the “fundamental concepts” that it is intended to realize as a constitutional document; it is difficult to establish that the language of the amendment is “sweeping”, unbounded, and leaves “no room for doubt” as to its scope; and there is no flaw in the very fact that it concerns a general concept that requires interpretation. In addition, the amendment does not entirely preclude judicial review of government and ministerial decisions, does not grant them absolute, comprehensive discretion, and does not grant immunity to their decisions. The State of Israel is a strong democracy, and it remains so even after the amendment. The fact that there is a narrow majority among the opinions of the judges for the conclusion that we are concerned with a mortal blow to the principles of democracy also speaks for itself.

 

Justice K. Kabub:

Justice Kabub noted that recognition of the limitations upon the legislature in a democratic state does not necessarily come at the expense of the people’s sovereignty. Someone can protect them if their representatives in the legislature undermine the democratic regime. He explained that the best illustration of such restrictions is the fact that the people did not authorize the Knesset to do whatever it pleases. Thus, the Knesset is not authorized to extend its term beyond four years in the absence of special circumstances, even if all one-hundred-and-twenty members vote in favor of such a law in three readings and call it a Basic Law. Thus, he held that in view of the structure of the Israeli regime, a result according to which there would be no judicial review of Basic Laws constituted through a deviation from authority is unacceptable. However, such review must be undertaken with special care and only in an extreme case.

After surveying the development of reasonableness in Israeli law, Justice Kabub concluded that at root stands the view that the legislature cannot grant the administration authority to make arbitrary and capricious decisions. Over time, the reasonableness doctrine expanded, and the interest-balancing test was devised in the Dapei Zahav case, which has come under criticism primarily because of its ambiguous boundaries. Nevertheless, the proper construction of Amendment No. 3 shows that the Knesset did not merely annul the interest-balancing test, but also comprehensively eliminated judicial review of the reasonableness of the decisions at the ministerial level.

Justice Kabub emphasized that exempting the ministerial level from accountability when it deviates from its authority means that the nation would be governed by people, contrary to the purest description of sovereignty as governance by laws. Therefore, there is no alternative to judicial intervention. However, he explained that attention should be paid to the criticism of the interest-balancing test that has been expressed over the years, which went as far as the Knesset and led to amending a Basic Law, and it would be appropriate to give that expression in the case law.

 

Justice (emer.) A. Baron:

Justice Anat Baron noted that 75 years after that historic moment of the Declaration of Independence, Israeli democracy is under a threat from within – as illustrated by the amendment to Basic Law: The Judiciary. The amendment was intended to bring about a fundamental regime change. It frees the government and its ministers from the bonds of judicial review on the grounds of reasonableness and grants the executive the power to rule without effective checks and balances. The import of the amendment is the granting of a comprehensive exemption to the government and its ministers from the duty to act reasonably in their decisions, in a manner that grants the government unprecedented power and the status of a “super” executive-legislative-constituent authority. This strikes a mortal blow to the principle of the separation of powers, the rule of law, and the democratic character of the state.

Justice Baron explained that there is no appropriate alternative to the reasonableness doctrine for maintaining good governance and for protecting individual rights. At the same time, the amendment opens the door to political cronyism in the public administration and undermines the independence of those who hold professional appointments, particularly the “gatekeepers”, inasmuch as their appointment and dismissal would be subject to the grace of the ministers and the government. In Justice Baron’s opinion, the Supreme Court is granted the authority to establish that a constitutional norm is void in extreme cases in which the Knesset deviates from its constituent authority. In the instant case, adopting an affirming construction of the amendment is not possible as it would constitute drafting a new Basic Law, which is neither within the authority nor the role of the Supreme Court. There are those who seek to understate the dimensions of the matter, and make it appear as if the amendment is an inconsequential triviality of minor or marginal importance. But this is an acute moment in which one cannot stand aside, and the amendment must be declared void. In the words of the poet: “Therefore, send not to know for whom the bell tolls, it tolls for thee.”

 

Justice O. Grosskopf:

Justice Ofer Grosskopf concurred in the opinion of President (emer.) Hayut that the petitions should be granted, and that the amendment should be voided. In his opinion, the Supreme Court, sitting as High Court of Justice, holds jurisdiction to review whether the Knesset has acted in accordance with the limitations under which it operates as a constituent authority by virtue of Basic Law: The Judiciary and by virtue of substantive justifications deriving from the unique character of the Israeli constitutional enterprise. Those limitations are three: Regularity (the requirement that it enact or amend a Basic Law by the required legal procedure); Good faith (the prohibition upon exploiting the constituent authority for foreign purposes); Authority (the limitations upon the power of the sitting Knesset to deviate from the constitutional enterprise designed by its predecessors).

In the area of authority, which is the focus of the proceedings, given the nature of a sitting Knesset to shape the “constitution in the making” (continuation of the constitutional project, and not its creation ab initio), and in view of the primary purpose of the constitution (limiting the power of a transitory majority in the Knesset in its role as constituent authority), the sitting Knesset is subject (in the absence of Basic Law: Legislation) to two restrictions: First, the sitting Knesset is not authorized to undermine the fundamental principles already laid down in the “constitution in the making”, foremost among them the identity of the state as Jewish and democratic (the “constitutional givens”) in manner that would bring down the constitutional structure created by its predecessors; second, the authority of the sitting Knesset to introduce changes that constitute a significant deviation from the “constitutional givens” is contingent upon broad consensus. A transitory majority that the constitution is intended to limit is insufficient.

As for Amendment No. 3 to Basic Law: The Judiciary, Justice Grosskopf accepted the interpretive approach according to which it prevents any judicial review of the reasonableness of a governmental decision. Given that, the amendment constitutes a severe infringement of the “constitution in the making” as designed by the previous Knessets, primarily because it places the government above the law. As a result, the amendment bears severe negative consequences, and above and beyond that, it inflicts mortal harm to the principle of the rule of law, inasmuch as it comprehensively exempts those at the head of the executive branch from judicial review on the basis of reasonableness. Therefore, the amendment should be voided under the first limitation (undermining the “constitution in the making”), and alternatively, under the second limitation (significantly deviating from the “constitutional givens” without broad consensus).

 

Justice D. Barak-Erez:

Justice Barak-Erez was of the opinion that constituent authority is limited in accordance with the fundamental definition of Israel as a Jewish and democratic state. She explained that this limitation is grounded in the Declaration of Independence (which is not a constitution but establishes the limits of the constituent authority). Accordingly, the Court’s jurisdiction to conduct judicial review in cases of deviation from the constituent authority derives from this limitation and cannot be contingent upon the wording of the Basic Laws themselves.

Justice Barak-Erez reiterated her position that the Court will intervene in the content of a Basic Law only in extreme cases of overstepping the bounds, which is the situation in the present case. The amendment to the Basic Law strikes a mortal blow to the foundations of democracy by granting the government broad immunity from effective oversight. In practice,  it leads to harm on three levels: barring the path to judicial relief in regard to decisions that harm individual interests; a lack of effective oversight of interim governments to the point of potentially influencing the transfer of power (for example, by advancing a “popular” policy on the eve of elections); as well as inflicting grave harm to oversight of the regime by those holding office as “gatekeepers” and independent regulators as a result of significantly weakening judicial review over their appointment and dismissal (a subject for which adequate safeguards have not been established in the law). Justice Barak-Erez added that the suggestion of returning to the reasonableness approach of “the good old days” ignores the broad legal and constitutional context and the balances among the branches of government in which judicial review was rooted in the past, in the sense of the adage: “No man ever steps in the same river twice”.

 

Justice N. Sohlberg:

Justice Sohlberg was of the opinion that it would be better to deny the petitions in limine by reason of a lack of jurisdiction.

According to his approach, a holding that there is some limit upon the authority of the constituent authority de facto annuls the fundamental democratic principle of the sovereignty of the people through its elected representatives. Justice Sohlberg added that this is not his view alone. The first seven Presidents of the Court, the eighth President, Aharon Barak at the outset of his judicial tenure, and a significant part of the justices who served on the Court for decades all stated, as it were: “Keep your hands off the state’s Basic Laws.

Justice Sohlberg noted that the Court majority points to various sources of authority, while there is no single source that is acceptable to them all. He was of the opinion that even according to the majority’s approach, one cannot derive from those sources that it is possible to void Basic Laws where the justices themselves are not in agreement, let alone on the basis of one vote.

Justice Sohlberg further noted that the majority opinion represents the opinion of the judiciary. As opposed to that, the constituent authority is of the opinion that not only does the Court lack the authority to void Basic Laws, but also that it lacks jurisdiction to decide the preliminary question: Is it the Court that holds the power to decide whether it has the authority to invalidate Basic Laws? Such a “conflict” between the branches of government is not played out in the legal arena, and it cannot be resolved by legal means.

As for the reasonableness doctrine, Justice Sohlberg was of the opinion that even were we to ignore the question of jurisdiction, then even according to the President (emer.), there is only one question: Does the Basic Law deny “the very existence of Israel as a Jewish and democratic state?”.  Since that is the question, the answer is near at hand: the Basic Law is a very, very far cry from falling within the compass of that narrow restriction, and more so. In any case, even if there were authority, there would be no grounds for voiding the law.

 

 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 5870/14

 

Before:                                    The Honorable Deputy President E. Rubinstein

                                    The Honorable Justice E. Hayut

                                    The Honorable Justice U. Vogelman

           

 

The Petitioner:

 

Hashavim H.P.S. Business Information Ltd.

 

                                    versus

 

The Respondent:

 

                                    The Courts’ Administration

                                   

                                    A petition for Order Nisi

 

Date of session:           11 Av 5775; July 27, 2015

 

Adv. Ofer Larish, Adv. Sivan Neumark Zuriel

                                    On behalf of the Petitioner

 

                                    Adv. Avi Milikovski

                                    On behalf of the Respondent

 

Adv. Avner Pinchuk

                                    On behalf of the Association for Civil Rights in Israel

 

Adv. Assaf Pink

                                    On behalf of the Association for Digital Rights in Israel

 

 

 

Judgment

Deputy President E. Rubinstein

 

1. This is a Petition challenging the decision by the Courts’ Administration (hereinafter: the Respondent), which requires signing a “Letter of Commitment” in order to gain access to its database of judgments and decisions. The “Letter of Commitment” includes, among others, a prohibition against indexing the information in a manner that would allow finding it on internet search engines such as Google and Bing. 

 

Background and Prior Proceedings

 

2. The Petitioner is a commercial company, whose primary business is operating internet websites which provide the public with information for a fee. The relevant websites for our purposes are “Takdin” and “Takdin Light” (how nice it would be had “Light” would have been given a Hebrew term) where judgments and other decisions (hereinafter, for the sake of convenience: judgments) of various courts may be found. The two websites contain a similarly database of judgments which are “pulled” from the Respondent’s judgments database, but are distinguishable by the business model upon which they rely.

Access to Takdin is conditioned upon a subscription fee of about NIS 2,000 a year, whereas Takdin Light allows the purchase of a digital copy of a single judgment for NIS 26. Even prior to the purchase and without commitment, any person may use Takdin Light in order to locate a particular judgment and read its first 2,500 characters. The different business models led the Petitioner to decide to permit the indexing of Takdin Light, as opposed to Takdin. Indexing is a process that enables finding the website, or parts of it, through web search engines. In other words, when we search through a web search engine a name of person mentioned in a judgment, we will receive as a result a hit that refers to the judgment in Takdin Light, but not a hit that refers to Takdin. It should be noted that according to the Petitioner, 94% of the visitors to Takdin Light arrive at the site through the web search engines. A person whose name appears in the judgment published on Takdin Light may approach the Petitioner and the latter would immediately remove the document from the free site. However, for several weeks later the judgment will still appear as a hit on web search engines. The Petitioner offers quick removal from the web search engines as well for a fee of NIS 50, which is intended – according to the Petitioner – to cover its costs of reaching out to the web search engines.

 

3. On April 28, 2008 the Petitioner signed, per the Respondent’s demand, a letter of commitment whereby it obligated to post only documents that may be published subject to any law, and to not bring any civil claims against the courts’ administration should it be sued by any third parties as a result of publishing the information. On January 15, 2013 the Respondent reached out the Petitioner and required, in order to continue the Petitioner’s access to the judgments database run by the court’s administration, the signing of an updated letter of commitment. Section 10 of the updated Letter of Commitment states that “I am aware that granting access to the information in my possession through open web search engines, such as the ‘Google’ web engine and others, may in itself constitute violation of privacy or constitute an unlawful publication, and thus I commit to take all necessary steps in order to prevent indexation of decisions and judgments passed through it in these web search engines.”

 

4. Following the letter, two meetings between the Petitioner’s representative and the legal counsels of the courts’ administration and the Ministry of Justice’s Information and Technology Authority (hereinafter: ITA), which ended with the Petitioner being requested to submit technical information as to its activity. The information was provided by the Petitioner on May 16, 2013. On November 5, 2013 the Respondent notified the Petitioner that to the extent that it does not prevent indexation of the information it “pulls” from the Courts’ Administration’ judgments database, its access to the database would be blocked beginning on January 1, 2014. The Petitioner was granted a period of 14 days to submit its written objection. At the Petitioner’s request, it was given an additional 21 days to submit its written response, which it submitted on December 17, 2013. On January 28, 2014 a meeting was held in the Respondent’s offices, during which the Petitioner was given the opportunity to supplement its arguments orally. On June 15, 2014 the Respondent notified the Petitioner that in the absence of signing the updated Letter of Commitment, access to the Courts’ Administration judgments databases would be blocked. On August 18, 2014, after several delays from the Respondents and several requests by the Petitioner to receive reasons for the decision, an email was sent from the Courts’ Administration, which said that a company that fails to sign the updated Letter of Commitment by September 8, 2014 would be disconnected from the judgments database. An explanatory letter from the Respondent’s legal counsel was attached to the email. It should be noted that the opinion by the ITA, which served the Respondent in making its decision, was not provided to the Petitioner, despite its request for it. On September 1, 2014 this petition was submitted against the Respondent. The Respondent’s attorney has consented to delay the effect of the decision dated August 18, 2014 until our decision in this petition. In the absence of a written response by the State Attorneys Organization, for organizational steps, it was agreed during a hearing from March 4, 2015 that the hearing be postponed and that postponed hearing be conducted as if an order nisi had been granted. We shall further note, that a class action suit submitted against the Petitioner is pending in the Tel Aviv Yaffo District Court (before Deputy President I. Inbar) in Class Action 34134-01-12. The suit was filed by people who claim that their privacy was violated due to the publication of their names on the website. Under the decision of the District Court from June 16, 2015, the adjudication of that case will continue after a decision is handed down in the petition before us here.

 

The Petitioner’s Claims

5. The Petitioner’s arguments attack the decision by the Respondent on three levels – the authority to make the decision, the procedure by which it was made, and the discretion at its base. We shall begin with the arguments regarding the issue of authority. According to the Petitioner, the point of departure in this regard is section 70 of the Courts Law [Consolidated Version], 5744-1984 (hereinafter: “The Courts Law”), which sets publishing of judgments as a rule and confidentiality as the exception. To the Petitioner, diverging from this rule requires explicit legislative authorization. The lack of the authorization is particular serious, so it was argued, because we are concerned with primary legislation that infringes both the principle of a public hearing and the rights of the Petitioner – the right to free occupation, the right to property and the principle of equality. According the Petitioner, the decision was made by the Courts’ Manager, who is not authorized to do so. It was maintained that the Courts’ Manager fills a managerial role that is not necessarily held by a judge, and whose responsibility is limited to executing administrative arrangements set by the Minster of Justice under section 82 of the Courts Law. Therefore, establishing substantive arrangements as to the publication of judgments – such as the decision dated August 18, 2014 – is not within the Courts’ Manager’s authority. It was also argued that the authority over this issue was granted explicitly to the Minister of Justice in section 83(a)(2) of the Courts Law, which stipulates that “the Minister of Justice may enact in regulations – […] publishing courts’ judgments.” According to the Petitioner, there are several substantive matters that the Minister of Justice explicitly delegates to the Courts’ Managers, such as hearing cases during recess, but the issue at hand is not one of them. The Petitioner reminds us that the Minister of Justice appointed a committee, headed by retired Supreme Court Justice Professor I. Englard, for the examination of matters relating to publishing identifying details in courts’ judgments and decisions (hereinafter: Justice Englard Committee), and this still sits in consideration. The appointment of the committee indicates, according to the Petitioner, that the Minister of Justice did not intend to delegate the authority to regulate this issue to the Courts’ Manager.

 

6. As to the procedure by which the decision was made, it was argued this was made with a number of flaws. First, the Petitioner maintains that the non-disclosure of the ITA opinion, despite its request, infringes upon its right to make arguments as part of a proper administrative due process. It was additionally argued that the fact that the Respondent did not change its position as a result of the hearing process indicates that the hearing was a matter of mere formality, in a manner that does not substantively uphold the right to make arguments. Finally, that Petitioner maintains that the reasons given by the Respondent does not address the arguments raised during the hearing, and does not present the factual foundation upon which the decision relied. Therefore, it was argued that the Respondent did not meet – substantively – the duty imposed on any administrative authority to give reasons.

 

7. On the discretion level, the Petitioner has several arguments. First, it claimed that the decision was made for an unworthy purpose. This is so because the general public, as opposed to individual people, has no right to privacy. One’s right to privacy is considered by the court upon the submission of a motion to make a case confidential and there is no place – according to the Petitioner – to provide additional protection to the general public, at the expense of other values such as a public hearing. It was secondly argued, that the current state of the law grants paramount status to the principle of a public hearing, which prevails the right to privacy. To substantiate this claim, the Petitioner refers us to several sources of law, including relevant sections of the Defamation Law, 5725- 1965. Thirdly, it was maintained that the decision by the Respondent violates the principle of equality because the meaning of the decision is limiting the access to judgments only to professional jurists, rather than the general public. In the Petitioner’s approach, this harms the group of unrepresented adjudicating parties who rely on themselves for legal representation. Fourth, it was argued that the decision is an infringement of the Petitioner’s freedom of occupation, as the operation of Takdin Light constitutes a significant portion of its income. As noted above, the Petitioner claims that 94% of visitors of Takdin Light reach the site through web search engines. In light of all of the above, the Petitioner maintains that the Respondent must select a less restrictive mean, such as instructing the courts to reduce the publication of personal details which are not necessary for the decision.

 

The Respondent’s Arguments

8. According to the Respondent, the principle of a public hearing does not require making court judgments accessible through web search engines, and in any event limiting their indexing requires no explicit legislative authorization. The Respondent additionally notes that certain restrictions on using the Courts’ Administration judgments database were already included in the Letter of Commitment from 2008, as to which the Petitioner makes not claim of lack of authority. It was also argued that the Respondent is subject to the Privacy Protection Law, 5741-1981 by virtue of it being an “administrator of a database” as defined by section 7 of that Law.

 

9. As for the process of making the decision, the Respondent argues there was no flaw to it. The Petitioner was granted the right to make arguments both in writing and orally, given several extensions, and it was agreed to postpone the date the decision would come into effect. The Respondent claims that an administrative authority is under no duty to accept the arguments raised at a hearing and thus the lack in a change in its position does not reveal any flaw in the hearing process. Additionally, the Respondent’s letter from August 18, 2014 includes detailed reasons that were the basis for the decision, so that the duty to give reasons was also flawless.

 

10. On the discretion level, the Respondent notes the harm caused to the privacy of litigating parties as a result of posting their names on web search engines – a harm that is distinguishable from the publishing of their names in “closed” legal databases such as Takdin, which are used primarily by jurists for professional needs. It was also noted that exposing the names of parties on web search engines creates a “chilling effect” that discourages people from turning to courts in a way that harms the right to access courts. The Respondent argues that this harm is primarily acute in labor courts, when employees who approach the courts fear that the publishing of their names may harm their chances of finding future job. It was therefore argued that reversing the Respondent’s decision is that which would infringe the right to access courts, not the other way around. In this context, we recall the Petitioner’s response claiming that it is unclear which factual data the Respondent’s arguments rely, as the number of those approaching courts increases each year. It was emphasized that preventing publication of judgments in the web search engines is not equivalent to a “gag order” because the judgments still appear in different internet websites in a manner that balances public hearing on one hand and the right to privacy on the other. It was also argued that the Respondent’s decision does not violate the principle of equality and that the argument was raised for financial motivations alone. As for the violation of free occupation, the Respondent noted that not every administrative decision with implications to a businesslike body can be considered a violation of free occupation. In this regard it was argued that to the extent there is a violation of free occupation, then this is proportional in light of the alternative violation of the privacy of litigating parties. The Respondent argues that it explored taking less restrictive measures “however this exploration has, at this time, yielded no results.” Finally, it was claimed that though the decision may not be optimal, this does not warrant legal intervention that is reserved only to decisions that are unreasonable.

 

The Positions of Those Seeking to be Joined as Amicus Curiae

11. In this case, two motions to be joined as amicus curiae were submitted. The first motion was submitted by the Association for Civil Rights (hereinafter: the Association), and the second by the Movement for Digital Rights (hereinafter: the Movement.) The two motions objected to granting the Petition, and these are their reasons: the Association’s motion describes how technological development brought upon a sharp change in the level of litigating parties’ exposure, though the legal rule remained as it was. This is still true while when the right to review judgments existed in the past, the infringement of privacy in times before the internet – a time when judgments were published in printed copies alone – was in effect highly limited (this is referred to as “practical obscurity”). Thus the Association argues that the new technological reality requires a shift from the binary approach of “private or public” to an approach of information accessibility. This approach considers not just the publishing of information but also the impact of publication. For example, the Association notes the report by the Committee for the Examination of Opening Israeli Courts to Electronic Communication, which mentioned the increased exposure of litigating parties as one of the considerations against direct broadcasting of court hearings. The Association also notes the “aggregation problem” whereby the accumulation of details of information – which each in itself raises no significant objection to its publishing – creates a real violation of privacy.

 

12. The Movement argues, that publishing judgments in “closed” databases such as Takdin fully realizes the right to review, while only somewhat infringing upon privacy right. On the other hand, publishing judgments in “open” databases such as Takdin Light – the judgments therein may be located through web search engines – equally satisfies the right to review but severely violates the right to privacy. As to the claim regarding a lack of authority, the Movement claims that the Respondent’s authority is established in regulation 5(b) of the Courts and Labor Courts Regulations (Review of Files), 5763-2003 (hereinafter: Files Review Regulations) which states that “in a general permit for review, the Courts’ Manager may set any condition or arrangement necessary for the balance between the need to review and the potential harm to litigating parties or to third parties due to the review…” The Movement maintains that the Petitioner’s argument regarding flaws in exercising the administrative discretion must be rejected. It claims that permitting indexation in the Takdin Light website causes severe harm to the privacy of litigating parties, and the possibility of removing the document from the website for a fee does not qualify the harm. It was additionally argued that the operation of the Takdin Light website is particularly egregious because the Petitioner takes active steps to make the website appear as one of the first hits presented by the web search engines. So, for purposes of illustration alone, searching the name “Shnikav” in Google’s search engine produces reference to Takdin Light’s site on the first results page, despite the fact that there is no judgment which addresses a person of that name. It was argued that the referral to the Takdin Light website is par for the course of the Petitioner’s active steps which may mislead a person seeing that there are judgments for that same Shnikav, should that person fail to click the link and realize the mistake. We shall note here that the latter argument is not directly related to the petition at hand, but is raises a weighty issue which we see fit to address below.

 

Discussion

13. In the hearing before us, the Petitioner’s attorney argued that though the Respondent does indeed have the authority to set technical limits for companies given access to the courts’ judgments database, but it is not within its authority to set substantive restrictions – which is the case before us. The importance of web search engines to the general public, who uses them as a nearly exclusive source for its legal knowledge, was emphasized. It was also emphasized that we are concerned with a matter of policy that necessitates an organized legislative process. Therefore, it was argued, the recommendations of the Justice Englard Committee must be made before making significant changes to the current situation. The Respondent’s attorney recognized that the demand to prevent the indexation prevents not just the ability to search litigants’ names, but also the ability to search “legitimate” legal terms such as “breach of contract in good faith”, but he claims that at this time it is technologically impossible to only partially prevent the process of indexation. The Respondent’s attorney further emphasized to us that the conclusion of the Justice Englard Committee’s work is yet unforeseeable and that it is necessary to take intermediate steps in order to prevent the harm currently caused to the privacy of litigating parties. The Association’s attorney stated that the state holds many databases, such as the land registry, the public’s full access to which via web search engines would cause a grave infringement to the public’s privacy, this despite the fact that even now it is possible to receive information from such databases through individual requests to the relevant bodies. The Movement’s attorney emphasized that the Petitioner’s conduct leads not only to over exposure of litigating parties, but also creates a misrepresentation whereby the name of a person appears in a judgment, even when reality is completely different (see paragraph 12, above). It was also argued, that the Respondent’s policy does not cause a real harm to the Petitioner, because the latter may become in possession of the judgments even were its access to the Respondent’s database to be blocked – this by copying the documents published on the Respondent’s website or by any other means.

 

Decision

14. The matter before us raises complex questions as to the intersection between law and technology and serves as an important reminder to us – judges – that the judgments we write while aspiring to accomplish justice may, by virtue of their publication, cause injustice to litigating parties (see my decision in CA 438/14, John Doe v. The Israeli Database for Car Insurance (February 6, 2014) (hereinafter: the Car Insurance Database case.) This case is a testament again, as other cases in our times, that the law lags behind technological progress and the legal problems it poses, it chases them but does not catch up. This is the case in areas of the internet and the virtual, and this is the case in matter of intellectual property and others (see Michal Agmon-Gonen, The Internet as a safe Harbor:  Legal Regularization In Light of the Technological Possibilities for Circumvention and the Global Nature of the Net, Law, Society and Culture – Legal Net: Law and Information Technology 433 (2011), Amal Jabarin, The Role of Law in Regulating the Internet through the Perspective of Economics Approach to Law, Kiryat HaMishpat 7, 233 (2008)). In the introduction to the book Intellectual Property: Interdisciplinary Reviews (eds.: Miryam Markovitz-Bitton and Lior Zemer (in print)) I had the opportunity to say: “the chase after technology and its tentacles is not unique to the world of intellectual property. It applies to many areas in the law, in particular is the connection between the great virtual world to criminal law, defamation and many others, and the issues that arise from each of these.” This case reveals a conflict between the freedom of information and the public’s right to know (including corporate information) and the right to privacy, which elicits “genetic sympathy”, based in values, in order to prevent as much as possible that one’s past follow them indefinitely, and the computer after all does not forget.

 

15. In this context, recall the judgment by the European Union Court of Justice which compelled Google to remove a link to a story that included details of an offence committed by a person many years prior (C-131/12, Google v. Agencia Espanola de Proteccion de Datos). Some have termed this the “right to be forgotten” (see Yehonatan Klinger, The Right to be forgotten? Apparently Not in Israel, in the blog Intellect or Insanity (February 2, 2015) http://2jk.org/praxis/?p=5368)). It should be noted that the “right to be forgotten,” as defined by the European decision, requires that the search engine examine individual requests to remove links, but the decision does not expand as to the considerations which must guide decisions regarding such requests. As a result, it is hard to say whether – according to the European Court – there is a “right to be forgotten” also from official and lawfully published case law. So far it seems that American law has not adopted the “right to be forgotten” (see the U.S  Court of Appeals for the Ninth Circuit in Garcia v. Google Inc., 786 F.3d 733, 745-46 (2015)). This comes from a long-standing general position of the superiority of free speech (see Steven Bennet, the “Right to be Forgotten”: Reconciling EU and US Perspectives, 30 Berkeley J of Int’l L. 161, 169 (2012)). In the Israeli context, we shall note that a certain aspect of this issue was regulated in the Criminal Registration Law, 5741-1981, which sets guidelines for running the criminal registration database – including the process of expunging (deleting registration) after 10 years have passed since the end of period of limitations on the conviction had elapsed (section 16 of the Law). The Law’s explanatory notes state that “the basic principle behind the proposal is that – aside from unusual matters – one should not be remembered by their wrongdoing for their entire lives and must be instead permitted to turn over a new leaf and that full rehabilitation and fully reintegration into society must be encourages.” (Bills 1514, 216; and see Nahum Rakover, The Status of an Offender who has Served His Sentence (5767-2007)).

 

16. Back to the matter before us, the issue raised is whether indeed the step taken by the Respondent meaningfully and effectively contributes to protecting the right to privacy, and whether this contribution justifies the accompanied harm caused to the principle of a public hearing. The decision in this case will follow these steps: first, we shall explore whether the Respondent’s decision was made within its authority. Then we shall explore the process of making this decision and whether it maintained rules of natural justice. Finally, we shall examine the administrative discretion at the basis of the decision and its reasonability.

 

Authority

17. The principle of administrative legality – which is the foundation for administrative law – instructs us that an administrative authority is limited in its action to the four walls it was granted by the legislature (HCJ 1/49, Bejerano v. The Minister of Police, IsrSC B 80 (1949) (hereinafter: the Bejerano case); HCJ 1405/14, Professor Salwin v. The Deputy General Director of the Ministry of Health (2014)). This is in contrast to a private citizen, who is free to do as she pleases so long that there is no law to limit her. In other words, the difference between the private and public entity is the premise as to the lawfulness of their actions. The administration requires individual permission, whereas the private citizen is free in the absence of a specific prohibition. Saying “From any tree of the garden you may eat freely; But from the tree of the knowledge of good and evil you shall not eat” (Genesis 2:16-17). The legislative authorization is not a mere technical legal requirement, but rather the administrative authority needs it in order to secure the public’s trust in its activity, which is funded by public resources (see Baruch Bracha, Administrative Law, vol. 1, 35 (5747-1986)). As said by the scholar Zamir: “The principle as to administrative legality is necessarily rooted in the actual nature of democracy. Democracy grants sovereignty to the people. The people is that who grants the government and any other administrative authority, through laws, all the authorities they hold and they hold but the authorities granted to them by law.” (Itzhak Zamir The Administrative Authority vol. A 50 (5756-1996) (hereinafter: Zamir). Moreover, in plain language free of legal jargon, an administrative authority’s exceeding of its authority holds totalitarian characteristics – law at one end and reality at the other. However, the administrative authority must not be paralyzed in its operation to the benefit of the many, and we shall return to this. As a general rule, that administration is granted the discretion as to whether and how to use the authorities granted to it, but there are instances where such discretion is particularly narrow, to the extent of imposing duties on the administration to exercise its authority (LCrimA 7861/03, The State of Israel v. The Local Council of the Lower Galilee, para. 16 of Deputy President Cheshin’s judgment (2006); Daphna Barak-Erez Administrative Law vol. A 216 (5770-2010) (hereinafter: Barak-Erez.))

 

18. Authorization for the actions of an administrative authority need not be found explicitly in primary legislation. Rather, secondary legislation may also be recognized as a source for authorization (Zamir, 131.) However, where the administrative action infringes basic rights – authorization sourced in secondary legislation is insufficient. This was mandated by the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty: “One is not to violate the rights accordance by this Basic Law save by means of a law…” (emphasis added – E.R.) This provision was expanded through case law to include basic rights enshrined in other statutes (EA 92/03, Mofaz v. Chairman of the Central Elections Committee, IsrSC 57 (3) 793, 811, para. 17 of then Justice Matza’s judgment (2003)). A similar rule applies also to “primary arrangements” which require – due to their importance – anchoring in primary rather than secondary legislation. In the words of President Barak:

“It is a basic rule of the public law in Israel that where a government activity is based in a regulation or an administrative instruction, it is appropriate that the general policy and principal standards that guide the basis of the action be sourced in primary legislation which permits the regulation or the administrative instruction. In more ‘technical’ terms, this basic rule means that ‘primary arrangements’ that set the general policy and the guiding principles must be established by Knesset legislation, whereas the regulations or the administrative instruction must set only ‘secondary arrangements.’” (HCJ 3267/97, Rubinstein v. The Minister of Defense, IsrSC 52(5) 481, 502, para. 19 of President Barak’s judgment (1998); see also Gidon Sapir, Primary Arrangements, Iyunei Mishpat 32(1) 5 (5770-2010)).

 

19. One of the issues that often lands on judges’ desks is the level of explicit required in an authorizing statute. That is – how specific must the statute be regarding of the administrative authority’s permissible activity. Recognition of implicit authority – authority that is not written explicitly into the language of the law – stems from common sense and life experience, which teach us that reality is infinitely more complex than the ability of a flesh and blood legislature to foresee in advance. Strict insistence over a high level of specificity may thus lead to debilitating the authorities of a public administration and to obstructing normal life. The words of scholar Margit Cohen are apt here:

“No legislative system, not even the most comprehensive one, can provide full responses to any possible situation, particularly when in a modern state, whose needs and conditions change rapidly. A lack of regulation may exist even when the system is still in the process of creation and coming together. Further, a system may be characterized by refraining from regulation through primary legislation, which is rotted in geranial parliamentary weakness or deliberate failure from addressing matters of great political sensitivity. When it is possible that the law does not regulate particular areas, the outcome of this must be examined in terms of the executive authority. One possibility may be avoiding action. However at the same time there is force to the argument that the government must act even in the absence of legal arrangements and that its power to do so results inherently from its nature and from its role.” (Margit Cohen, The General Authorities of The Executive Authority 8 (5763-2002)).

 

Recall here the decision by President Beinisch in HCJ 10203/03, The National Census v. The Attorney General, IsrSC 62(4) 715 (2008), where it was noted that the “level of specificity” must be determined according to the circumstances of the matter, including the “nature of the infringed right and the reasons behind it, the relative social importance of the right, the level of its infringement, its social consequences, the identity of the infringing authority and the context” (p. 82, see also Barak-Erez, 125). A mirror image of sorts to this holding was also established in HCJ 3933/11, Maccabi Health Services v. The Minister of Health, para. 35 of Justice Arbel’s judgment (2014), where it was held that a “level of specificity” must be low where it is necessary in order to authorize the administration authorities to protect basic rights. I will emphasize – as in other cases – common sense. It must be examined often whether the circumstances support strictness or a flexible approach, while inferring the intent of the legislature appropriately. The authority serves the public. Thus, to the extent that it is recognized that its authorities are exercised in good faith in order to provide service, the Court does not bar its actions. If, god forbid, it is clear that irrelevant considerations, arbitrariness, or lack of good faith taint the authority’s action, the approach would of course be different. The authority is not the master of the individual but rather its servant, as well as the servant of society as a whole, and balancing its authorities must carry that always, including when considering principled questions such as protecting one’s privacy and minimizing the harm as much as possible within the contours of the law.

 

20. And from the general to the specific. The Courts’ Administration is regulated constitutionally in Basic Law: the Judiciary and in the Courts Law (Consolidated Version) 5744-1984. Section 24(1) of Basic Law: The Judiciary lists “the regulations of the administration of the courts, the establishment of such regulations and the responsibility to execute them” among the matters for which “instruction shall be set by law.” Section 82 of the Courts Law states that “(a) the Minister of Justice shall set the administration regulations of the courts and shall appoint, with the consent of the President of the Supreme Court, the Courts’ Manager, whether a judge or not; (b) the Courts’ Manager shall be responsible to the Minister as to the execution of the administration regulations”; see HCJ 4703/14, Sharon v. The President of the Supreme Court (November 30, 2014), paragraphs 10-11. Among others, it was said in paragraph 11 there that “the Manager… is charged with the administrative operation of the system…” and that he has additional authorities, as listed there. Do such authorities cover our matter as well?

 

21. As recalled, the Respondent’s decision conditions continued access to its database upon barring the indexation of judgments found in the database. The practical meaning of this decision is that the Petitioner is barred from posting the pages of Takdin Light to web search engines and from attracting potential clients by doing so. The prevention of posting to web search engines may cause severe harm to the Petitioner’s business, as most of the visitors to its site arrive there through a “Google” search (it claims, as mentioned, that these are 94% of the visitors to Takdin Light, whose activity is responsible for about 20% of the Petitioner’s income.) It is clear that limiting the Petitioner’s ability to publish its services is a violation of the freedom of occupation itself (see HCJ 4000/93, Canval v. Israel Bar Association, para. 9 of President Barak’s judgment (1997)). The publication is an essential component in the chain of business activity, which of course includes many stages and cannot be reduced solely to the process of sale to end consumers. Harms to the chain of business activity – whether in the planning, production or marketing phases – may amount to a violation of the freedom of occupation. As a side note, I should point out that preventing commercial advertizing and publications may also constitute a violation of the freedom of speech, as said by Justice Dorner: “Commercial speech is not a step child to free expression, but it is among its organs” (HCJ 606/93, Kidum Entrepreneurship and Publishing Inc. v. The Broadcasting Authority, IsrSC 48(2) 1, 10 (1994)). It is true, that a violation of free commercial speech is less significant that harm to free political speech (HCJ 5118/95, Meir Simon Inc. v. the Second Authority for Television and Radio, IsrSC 49(5) 751 (1996); HCJ 15/96, Thermokir Horashim v. the Second Authority for Television and Radio, IsrSC 50(3) 397 (1996)), but this does not mean that commercial speech may be violated thoughtlessly. Therefore, before us is a not insignificant violation of the basic rights of a private body by a public body. Such violation requires authorization in primary legislation.

 

22. As was already previously written, the Respondent does not point to a specific source of authorization for the basis of its decision, but rather argues that as a general rule there is no need for authorization in law. This is because, arguably, the law does not mandate publishing judgments on web search engines. For our purposes here, and without setting anything in stone, I am willing to assume that indeed the Respondent is not obligated to publish the judgments on web search engines, and that it is possible – from the law’s perspective – to be satisfied with publication through other means. However, the mere fact that the Respondent is under no duty to publish the judgments on search engines does not mean, necessarily and inherently, that it is permitted to prevent this from private bodies. The status of the Respondent’s authority to publish judgments – whether it is permissible or obligatory – is irrelevant to the issue of its authority to prevent publication by private bodies. These are two distinct actions – publishing and preventing publishing – each of which seemingly requires statutory authorization. Another interpretation – whereby it is within the authority of an administrative authority to prevent activity which it is not statutorily obligated to commit on its own – does not fit common sense and means the emptying of the principle of legality, which mandates that the individual is free to do as she pleases in the absence of any other legislative provision. We thus find, that the Respondent is not exempt from presenting a statutory source to authorize its decision. As written, the Respondent’s decision to limit the Petitioner’s access to the judgments database violates its freedom of occupation – and this, without authorization in primary legislation, must not be permitted.

 

23. The Respondent argues that the Petitioner signed the letter of Commitment in 2008 demonstrates that it was within its authority to limit access to the database. Without causing offense, I believe this is an argument that is hard to accept. First, the letter of Commitment from 2008 is not similar to the current one. The first letter of Commitment is substantially limited and it primarily limits publications that are prohibited by any law. It seems that is not a meaningful limitation, as opposed to the current prohibition against indexation of judgments. In other words, it makes sense that conditioning access to the database was within the authority so long as the requirement was obeying the law, but not so when the requirement exceeds this. Second, and this is the main point, the Petitioner’s consent to signing a letter of Commitment is irrelevant to the question of authority. The authority requirement is not dispositive and the administrative authority may not exempt itself from it, even with the agreement of the parties. Recall, that one of the rationales at the foundation of the authority requirement is the people’s control, through its representatives, over the public administration. It is clear that the administration may not free itself from this control through the consent of one individual or another out of the general public. Appropriate here are the words of the scholar Shalev:

“Clearly, a contract that exceeds the lawful powers and authorities of the authority, as established by the authorizing law, is an unlawful contract that is therefore void. A contract may not expand the authority’s powers, or grant it authorities, or allow it to act outside of the bounds of its lawful authority. This is the distinction between the public administrative authority (aside from the state, whose powers and authorities are unlimited) and the individual: the authorities of the public authority and its capacity are restricted and thus her contracts as well require a statutory source.” (Gabriela Shalev Contracts and Tenders by the Public Authority 49 (1999); see also Barak-Erez, vol. 3 259.))

 

24. The Movement for Digital Rights wished to defend the Respondent, and to find the source of the authority for its decision in regulation 5(b) of the Files Review Regulations. This is the language of the section:

“(b) The Courts’ Manager may establish in a general permit for review any condition or arrangement that is necessary in order to balance the need for review and the harm that may be caused to litigating parties or a third party due to the review, including redacting of details, limiting the number of reviewers and taking steps to prevent the identification of parties or people. Additionally, the Courts’ Manager may refuse to give a general permit of review or establish conditions or arrangements for its implementation considering the necessary resource allocation.”

 

These words are well and good, but still – this is secondary legislation that cannot serve as a source of authority for violations of fundamental rights. As it was written above, administrative decisions that infringe upon basic rights – and such is the decision before us – must pass muster under the Limitations Clause, whose first element is authorization in primary legislation. Additionally, it is highly doubtful whether the Review Regulations are relevant to the matter here, because commercial companies that enter into contracts with the Courts’ Administration – such as the Petitioner – do not do so as a result of a general review permit. Rather this is a completely different procedure.

 

25. A different possibility that was presented was recognizing the Privacy Protection Law, 5741-1981 as a source behind the authority for the Respondent’s decision. According to this explanation, the Respondent is the “operator of a database” as defined by section 7 of this Law. Therefore, as revealed by the Respondent’s arguments, it is obligated to comply with section 8(b) of the Law: “No person shall use the information in a database that must be registered according to this section, but for the purpose for which the database was established.” This should be joined with section 17 of the Law whereby “an owner of a database, a holder of such database or the operator of a database, is each responsible for safeguarding the information in the database.” This is the root, it was argued, of the authority at the basis of the Respondent’s decision. I am afraid that this interpretation is not devoid of difficulties. The first difficulty is technical in its nature, and it concerns the question whether the Respondent operates a database for purposes of section 7 of the Law. If so – as the Petitioner’s attorney has noted – its judgments database is not registered in the register of databases. The second difficulty – and this is the main one – goes to the matter of the purpose of the Respondent’s database. On its face, and with no party claiming otherwise, the judgments database exists for the purposes of realizing de facto the principle of a public hearing. The Courts’ Administration collects the judgments, publishes them on its website and allows commercial websites direct access to them – all for the purposes of benefiting the public, so that “the wise may become wiser still” (Mishley, 9: 9). If so, does the indexation of judgments constitute a use that exceeds the purpose of which the database was established for? I believe that the answer is not in the affirmative. The indexation of the judgments constitutes in itself a “step up” in making legal material accessible to the general public, thus generally serving the purpose for which the database was established. Still, the “step up” in making judgments accessible creates a parallel increase in the violation of litigating parties’ privacy with the human sensitivities involved, and it is certainly possible that the administrative authorities must give thought to this and seek solutions (and of course this would naturally apply to the Justice Englard Committee) – however the administration must do all this only with permit and authority. This ends our discussion in the level of the authority, and a source for authorizing the Respondent’s decision – in its face, is nonexistent. Beyond the necessary scope, we shall continue our examination of the decision along the two other levels – the level of the procedure for making the decision and the level of the discretion upon which it relied.

 

Procedure

26. After discussing the authority requirement that derives from the principle of legality, we shall address the requirement for proper administrative due process. Strict adherence to administrative due process is essential, and there is no need to elaborate (see Barak-Erez 262-63): meeting the requirements for a due process protects the values of fairness and equality; improves the quality of the administrative decision; allows the public to influence the decision in a democratic manner; ensures public trust in governance and administration; allows effective review over the operations of the administration; and of no less importance – prevents corruption, the creation of appealing loopholes and a slippery slope in the style of countries and administrations to which we do not wish to resemble. The duty to hold an administrative due process includes, among others, holding a hearing for parties who may be affected by the decision (HCJ 598/77, Eliyahu Deri v. The Parole Board, IsrSC 32(3) 161 (1978); LCA 2327/11, John Doe v. John Doe, para. 22 of Justice Danziger’s decision (2011)), giving reasons for the decision made (HCJ 142/72, Shapira v. The Israel Bar Association, IsrSC 25(1) 325 (1971); Yoav Dotan, Administrative Authorities and Elected Bodies’ Duty to Give Reasons, Mechkarei Mishpat 19 5 (5762-2002) (hereinafter: Dotan)), and exposing internal documents that substantiated it (HCJ 5537/91, Efrati v. Ostfeld, IsrDC 46(3) 501, 513, para. 21 of then Judge Cheshin’s opinion (1992); AAA  4014/11, Eid v. Ministry of Interior, para. 28 of Justice Barak-Erez’s judgment (2014)).

 

27. In this context it seems that the Petitioner’s claims as to the administrative process touch on three aspects: the hearing, the reasoning and the disclosure of internal documents. I shall already note here that I do not believe the arguments ought to be accepted. We are not concerned with night time “grab”, but a serious and prolonged administrative process throughout which the Petitioner was permitted to express its opinion as to the decision, and indeed several extensions were provided for such purposes (see the email correspondence between the Respondent and the Petitioner on the dates of Nov. 18, 2013; Dec. 26, 2013 and July 1, 2014.) The hearing was provided both orally and in writing, with the Petitioner furnishing the Respondent with relevant information. Accepting the Petitioner’s argument whereby the fact that the Respondent did not change its mind during the hearing indicates that the hearing was conducted for appearances’ sake alone – would mean imposing a duty on administrative authorities to necessarily change their positions as a result of a hearing. This, of course, is unacceptable and it is hard to believe that the Petitioner itself holds this view.

 

28. As for the duty to give reasons, the Respondent noted in its letter from August 12, 2014, among others, that the rationale behind the decision was the desire “to protect the privacy of the litigating parties, private information about whom was exposed on the internet to any inquiring eyes” and that it “is permitted to put in place reasonable conditions to proportionately balance the principle of a public hearing and the interest in guarding the privacy of litigating parties before granting access to servers.” On its face, this is sufficient for meeting its administrative duty to give reasons for its decisions. Indeed, in a legal sense, in order to fulfill the duty to give reasons, there is no requirement that the reasons are lawful or based in law. See for this issue, the words of the scholar Y. Dotan:

“Even a decision whose reasons are completely wrong – is a reasoned decision. The flaw in the decision is a substantive flaw on the merits, but it is not a flaw to the procedural duty to give reasons. When the authority gave reasons – and even reasons that are completely wrong, the reasoning ‘played its part’ and it is now possible to subject the decision to review on the basis of the reasons given.” (Dotan, 50).

 

These things are presented for the completeness of the legal picture, but in simple terms, god help an authority whose reasons are wrong and god help a public the reasons of whose servants are wrong, because – in other words – they may not be performing their duties adequately.

 

29. And now – to the Respondent’s decision not to disclose the ITA opinion, upon which it relied its policy as to the indexation of judgments, to the Petitioner. As noted above, the representative of ITA refused to send to Petitioner the opinion (see the email from November 21, 2013.) Seemingly, there is no substantive reason not to disclose the legal opinion since it does not concern national security, confidential methods of action or protecting the privacy of a third party (Barak-Erez 506-508.) And still, and without setting things in stone, it should be noted that it is not impossible that the ITA opinion constitutes “internal consultation” for the purposes of section 9(b)(4) of the Freedom of Information Law 5758-1998, which exempts the administrative authority from providing such information (AAA 9135/03, The Council for Higher Education v. Ha’aretz Newspaper Publishing, IsrSC 60(4) 217 (2006)). It therefore appears that the issue is whether the Respondent met its administrative duty to permit the Petitioner to review documents that informed its decision (see HCJ 7805/00, Aloni v. The Jerusalem City Comptroller, IsrSC 57(4) 577, para. 18 of Justice Procaccia’s judgment (2003)). Let us note, that the Petitioner continued its long email correspondence with the Respondent without referencing the matter again, in a manner that may be understood as the Petitioner’s abandoning its request to review the opinion. We shall further note that the Respondent did properly give reasons for its decision (see paragraph 26, above.) As known, not every flaw in an administrative decision would inherently and necessarily lead to its voidance (CA 4275/94, The Stock Exchange v. The Torah Literature Database Management Ltd., IsrSC 50(5) 485, 509 para. 22 of then Justice Orr’s opinion (1997); AAA 2339/12, Shohat v. The Kfar Saba Local Committee for Planning and Construction, para 49 of Justice Shoham’s judgment (2013)). It therefore seems, without making any determinations in the matter, that it would not be appropriate to void the decision because of the Respondent’s refusal to disclose the opinion.

 

The Discretion

30. So far we have been concerned with the source of the authority to make the decision, and the way in which it was made. We now open the “black box,” and look inside at the decision itself and its content. At the outset, we shall note that this Court does not rush to intervene in the discretion of an administrative authority, and particularly not where we are concerned with decision that are within its professional expertise (HCJ 338/87, Margaliot v. The Minister of Justice, IsrSC 42(1) 112, 116, para. 6 of Justice Bach’s judgment (1988); HCJ 7510/05, Lotan v. the Minister of Industry, Commerce and Employment, para. 23 of Justice Joubran’s Judgment (2006)). Still, we would not be performing our duties properly were we to shut our eyes to administrative decisions that substantially and extremely exceed the range of reasonability. The requirement of reasonability it closely linked to the authority requirement, and both are founded upon the democratic rationale that was reviewed above (see para. 15.) As noted, the administrative authority is limited in its actions to the four walls defined by the legislature – as the representative of the general public. It is easy to see that those four walls do not house decisions that are extremely unreasonable, as this was not the legislature’s intent. As was said by then Justice Barak:

“The balance between the different interests was charged by the legislature to the Second Respondent, and so long as it weight appropriate considerations and attributed proper weight to them, we shall not intervene. But if the considerations of the Second Respondent are based in a lack of good faith, arbitrariness, discrimination or unreasonableness – we shall not hesitate to intervene.” (HCJ 148/79, Sa’ar v. The Minister of Interior, IsrSC 34(2) 169, 178, para. 8 of his judgment (1979)).

 

Clearly, balancing conflicting interests is no simple task, which is often likened to an acrobat’s walk of a tightrope with the interested parties pulling at either end of the rope. Therefore, with the assumption of good faith, only a serious divergence from the range of reasonableness shall give rise to judicial intervention in the balancing decision made by the administrative authority. (HCJ 910/86, Ressler v. The Minister of Interior, IsrSC 42(2) 441, 518, para. 7 of President Shamgar’s judgment (1988)). In the case before us, the necessary balance is between the right to privacy of litigating parties on one hand, and the principle of a public hearing and the Petitioner’s freedom of occupation on the other. Note, that we are not required to make categorical determinations as to whether privacy must prevail or whether a public hearing and the freedom of occupation should. Were I to follow my heart, I believe I would have proposed to prefer privacy. But instead the question before us is whether the benefit to the protection of privacy, which results from the Respondent’s concrete decision (which prohibits the indexation of judgments by bodies granted direct access to its judgment database), outweighs the harm caused to the principle of the public hearing and the freedom of occupation due to the decision (see and compare CA 8954/11, John Doe v. Jane Doe, para. 121 of Justice Sohlberg’s judgment (2014)).

 

31. Let us open with the right to privacy, which was said to “draw the line between the individual and the general public, between ‘me’ and society. It creates a space where one is left alone, to develop her ‘self’, without another’s involvement” (HCJ 2481/93, Dayan v. the Commander of the District of Jerusalem, IsrSC 48(2) 456, 470, para. 16 of then Deputy President Barak’s judgment (1994)). Indeed, one’s privacy is one’s castle. This castle is exceedingly chipped away at with the progress of technology and there are those who believe privacy is a thing of the past (A. Michael Froomkin, The Death of Privacy, 52 Stan. L. Review. 1461 (2000); see also Yair Amichai-Hamburger and Oren Paz, Anonymity and Interactivity on the Internet: The Right to Privacy as a Multi-Dimensional Concept, Privacy in The Time of Change 201 (5772-2012)), and in practical reality this is not far. The ability to photograph and record on a mobile phone that is accessible to many, and in technologically advanced societies almost to everyone, has drastically reduced privacy. However, this does not mean that the value of protecting privacy is lost to the world. Indeed, the new era brings with it new tools – with both blessings and curses – but I believe this does not necessitate complete abandonment of human dignity and his good name. The words of the scholar M. Birnhak are apt here: “Technology has a complex relationship with the legal right to privacy, similarly to the relationship between the right and social norms. At times technology affects the content of the social norm and/or the legal right, and at times the law and/or social norms influence technology. At times the law cooperates with technology and at times they compete.” (Michael Birnhak, Private Space: The Right to Privacy Between Law and Technology 45 (2011); see also Michael Birnhak, Control and Consent: The Theoretical Foundation of the Right to Privacy, Mishpat U’Mimshal 11 9 (2008)). The proper relationship with technology is not a binary. Instead we must seek a middle ground that allows us to enjoy the fruits of technology while limiting the harm to individual rights, which often follows it. This resembles the tale in the Talmud Bavli (Hagiga, 15, 72) about Rabbi Meir who studied under Elisha Ben Abuyah, one of the Tannaim who was considered heretical and hence was referred as the “Other One” in the Talmudic language. The Talmud commends Rabbi Meir for “eating the content and discarding the shell.” In other words, Rabbi Meir wisely adopted the positive sides of his teacher without taking also the other side. Jewish law considers privacy protection, among others, through the concept of “harmful watching” – an injury one causes another by looking into his domain. About the verse “What benefit is there in Jacob’s walk through Israel’s houses,” (Arithmoi, 24, 5) Rashi says instead “What good is in the houses – for no doors are direct at each other.” Bilam commends the People of Israel for their conduct to protect the right to privacy (Eliyahu Lifshitz, The Right to Privacy in Jewish Law and in State Law, Weekly Parasha 33 (2011); see also the Talmudic Encyclopedia, vol. 8 “harmful watching – Heizek Reiya”; Gidon Klogman, On Harmful Watching, Iyunei Mishpat 5 425 (1975-76); Sharon Aharoni-Goldenberg, Privacy on the Interment in the Prism of Jewish Law, HaPraklit 52, 151 (2013)). Let us recall once more, that the matter here does not necessitate weighing the right to privacy as a whole, but only the added harm to the privacy of litigating parties, which may be caused when indexing of judgments mentioning their names is permitted to bodies with direct access to the Courts’ Administration’s judgments database.

 

32. The principle of a public hearing is an individual subset of the ideology of transparency more broadly, about which I wish to say a few words. The policy of transparence enjoyed a boost in the past years through the Freedom of Information Law, 5758-1998. This Law’s primary novelty is in the message that public information is public property – rather than the property of the administration, who holds it in trust. The Law’s explanatory notes state that: “… the seeker of the information needs not specify in the request for information, which is submitted in writing, the reason for which the information is sought… This approach is rooted in the recognition that because the information is in effect an asset among public assets, there is no significance to the question why the information is necessary to its owner.” (Explanatory Notes for section 7 of the Freedom of Information Bill, 5757-1997, Bills 2630; see also Hillel Sommer, The Freedom of Information law: Law and Reality, HaMishpat 8 437 (5763-2013)). Similar and well-known comment is found in the case law, as early as in HCJ 142/70, Shapira v. The Jerusalem District Committee of the Lawyers’ Bar, IsrSC 25(1) 325, 331 (1971), where then Justice H. Cohen wrote:

 

“The claim that in the absence of statutory duty to disclose, one may conceal rather than reveal – may be made by an individual or a private corporation… but it cannot be made by a public authority who fulfills duties under law. The private domain is not as the public domain, as the former does as it may will. If it wishes, it provides and if not it refuses. Whereas the latter is wholly created in order to serve the general public, and it has nothing of its own: all it has is put to it in trust, and in itself it has no rights or duties additional to those, or separate and different to, those which derive from such trust or that were granted to it or imposed upon it by virtue of statutory provisions.”

 

Indeed, as noted in the case law and in the Law’s explanatory notes, receiving public information is a “property” right which does not require special reasons, but I wish to point out to one benefit of opening government databases to the general public. Databases are an asset that may be useful to young entrepreneurs who may derive great public benefit from the information granted. Take for example, on the public level, the organization “The Workshop of Public Knowledge” which launched internet tools such as “Open T.B.A.” (www.opentaba.info) - a project for mapping city construction plans in a user friendly manner, which relies on information from the Israel Land Authority; or the “Open Journalism” project (www.opa.org.il) which makes accessible a multi dimensional database of newspapers which were scanned over the years by the national library and made it searchable. Such projects and others similar to them illustrate the added value the public brings when the gateways to public information held by administrative authorities are open to it. Of course, granting public information is not a process free of challenges and concerns (see Aharon Barak, Freedom of Information and the Court, Kiryat HaMishpat 3, 95, 105 (5763-2003), but public officials must also remember the benefits to it. And now specifically to the principle of a public hearing: the case law mentions three reasons to protecting this principle (see LCA 3614/97, Adv. Dan Avi Yitzhak v. The Israel News Corporation Ltd., IsrSC 53(1) 26, 45, para. 6 of Justice Goldberg’s judgment (1998) (hereinafter: the Avi Yitzhak case); HCJ 5917/97, The Association for Civil Rights in Israel v. The Minister of Justice, para. 18 of President Beinisch’s judgment (2009)). First, recognizing a public hearing as an integral part of the public’s right to know – a right which naturally derives from the existence of a democracy. As put by James Madison, who was among the drafters of the United States Constitution and a President of the United States: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.” (Letter by Madison to William Barry – an American statesman – dated August 4, 1822.) Second, the principle of the public hearing contributes to the improvement of the quality of legal products, as a result of exposing the proceedings to the scrutiny of the general public. Apt here are the words of Justice D. Levin (CrimA 334/81, Haginzar v. The State of Israel, IsrSC 36(1) 827, 832 (1982):

 

“A major rule it is in the law, that the court adjudicates in public. This is a pillar of both criminal and civil procedure, and one of the most important means to ensure an impartial trial and a due process. On one hand, this principle opens the court up to exposure to the public and to its judgment insofar that conducting an objective trial, in judgment and discretion. On the other hand, the litigating parties, too, stand before the public, who hears everything and being aware of the facts presented to the court, may – according to the information in its possession – appropriately offer evidence to refute them. Therefore, parties may beware and be cautious to suggest to a presiding judge facts that are not reliable or have not been corroborated.”

 

Third, the principle of the public hearing is essential to the existence of public trust in the judicial system, and this additionally to the first two reasons already mentioned, and without connection to them. The sentence appearing in The Federalist (as translated by Aharon Amir, edited by Yael Hazoni, with the introduction by Ruth Gavison and Ellen Shapira, 2001), on page 388, whereby the judicial branch is the least threatening of them all to the political rights enshrined in the United States Constitution, as it “Has no influence over either the sword or the purse,” is well known. Put differently, the judiciary does not set the budget and does not head the public administration (The Federalist Papers, No. 78.) Another important element was added to this famous quote – and it is paramount in our matter – by Justice Felix Frankfurter of the Unites States Supreme Court, and it is that the Court indeed lacks a purse or a sword, but it does have at its disposal the public trust. (Baker v. Carr, 82 S. Ct 691 (1962)). The principle of the public hearing is not foreign to Jewish law (see Yaron Unger and Yuval Sinai, Public Hearing in Jewish Law, The Center for the Application of Jewish Law, (5775-2014)). We shall mention here the words of scholar Haim Cohen in his book The Law (p. 443), that the sources of Jewish law effectively enshrine the principle of the public hearing, without explicitly naming the concept:

“The widow who asserted exercising the commandment of impregnation by her husband’s brother ‘went to the elderly at the gates’ (Deuteronomy 25, 7). And ‘Boaz came to the gate’ and purchased all that Elimelech had and took Ruth of Moav as a wife before ‘all the people at the gate and the elderly’ (Ruth 4, 1 and 11). The judges (and the police men) were commanded to be present at ‘all of your gates’ (Deuteronomy, 16, 18) and they brought the prodigal son to justice ‘to the elderly of his city and the gate of his place’ (there, 21, 19). Ezra called his court to convene ‘on the street of the house of God,’ under the sky (Ezra 10, 9), and the Sanhedrin sat in its chambers at the Temple, which it convened with all 71 members. But when it sat with 23 members to adjudicate it sat at the ‘entrance to the Temple Mount’ or the ‘entrance to the auxiliary’ (Sanhedrin 88, 2), a place that was open to all the people, as the auxiliary was ‘filled with Israel’ (Yoma 1, 8).”

 

All these sources have a similar trend – holding law at the most public location out of recognition that justice must be seen and not just made (R v. Sussex Justices, Ex Parte McCarthy, 1KB 256 (1924)).

 

33. The third value relevant to our matter is freedom of occupation. Freedom of occupation is one of the only basic rights which was enshrined in a specific basic law – Basic Law: Freedom of Occupation. Even before this Basic Law was enacted – on 11 Shvat 5709 – this Court ruled that any citizen may work in any vocation he sees fit to choose (see the Bejerano case). It was said of freedom of occupation that it “derives from the autonomy of private will. It expressed one’s self-definition. Through freedom of occupation one may designed his personality and his status and contribute to the social fabric. This, under the values of the State of Israel as a democratic state as well as under its values of a Jewish state. Occupation makes one unique and gives expression to God’s image within him (see Rabbi Eliezer’s Mishna (Analau edition, New York, 1934), parasha 20, on p. 366)” (HCJ 1715/97, The Israeli Investment Managers’ Guild v. The Minister of Finance, IsrSC 51(4) 367, 385, para. 15 of President Barak’s judgment (1997)). Indeed, the principle of freedom of occupation is required by the State of Israel being a Jewish and democratic state. The sources of Jewish law recognized work as a primary and constitutive component of human life. Here are some of the words of Rabbi Nathan: “How to love work? It teaches us that a person must love work rather than hate it, because as the Torah was given to us by  covenant so has the work was given to us by covenant (emphasis added – E. R.), as it was said ‘six days you shall work and you completed all your work and the seventh day rest for the sake of your God (Exodus 20, 9)” (Noscha A, chapter 11). The value of work appears also in the words of the Rambam who stated that “it is better to remove the skin of animals than to say to the people ‘I am a great scholar, I am a Cohen – you must support me.’ And thus under the orders of our sages, some of whom where great scholars and some of whom chopped wood and carried the beams and fetched water for gardens and made iron and coals and who did not ask from the public and did not receive when given.” (Rambam’s Mishna Torah, Matnot Aniyim, 10, 18 Halacha.) And see also in the Q+A of Mishpatei Uziel (Rabbi Ben-Zion Meir Chai Uziel, Israel, The 20^th Century) vol. 4, sign 44, whereby one of the commandments performed through Jewish work is that the employer “finds (for the employee – E. R.) work to strengthen him that he does not need from others and does not ask, and this was called ‘and you held him.’” (Leviticus, 25, 35). However, similarly to the Israeli law (HCJ 5026/04, Design 22 v. The Ministry of Employment and Welfare, para. 6 of President Barak’s judgment (2005)), Jewish law recognizes that freedom of occupation – despite its significance – is not an absolute right. This particularly when we are concerned with unfair competition, which is prohibited as “going into the art of his colleague” (see Talmudic Encyclopedia, vol. 23 “going into the art of his colleague”). Thus, in the Q+A Igrot Moshe (Rabbi Moshe Feinstein, the United State, 20^th Century), Yoreh De’ah, part 2, sign 98, describes a case of a butcher who joined a guild of butchers with the agreement that the shall not compete with them. Eventually, the butcher left the town and opened a butchery in a nearby town. It was decided that the butcher was prohibited, under his own commitment, from doing so, as the commitment outweighed the freedom of occupation under the circumstances.

 

34. As mentioned, balancing between values is not easy task at all. For such purposes the Court requires the three tests of proportionality, which make concrete the general concept of reasonability (see Barak-Erez, vol. 2, 771.) The first test is the test of the suitable means, which examines the likelihood that the administrative decision will indeed achieve its purpose. The second test is that least restrictive means test, which considers the existence of alternatives that realize the same purpose, but are less restrictive of individual rights. Finally, the third test is the test of the proportional means, which examines the weight of the benefit of reaching the purpose against the weight of the cost of harm to individual rights. A reasonable administrative decision is one that meets all the tests describes. Failing to pass one of these tests means that a decision is not reasonable. Recall, that extreme unreasonableness may lead to judicial intervention that would void the decision.

 

35. The proportionality principle – on its three tests – appears in Jewish law as well. Here are a few brief examples. First, the suitable means test. In the RIBASH Q+A (R. Itzhak Bar Sheshet, Spain and North Africa, 14^th -15^th centuries) sign 484 discusses the issue of incarceration of debtors – those who do not pay their financial debts. The RIBASH rules that such incarceration is legitimate only where the debtor hold assets and that it is likely that the incarceration would persuade him to pay his debts. On the other hand, when we are concerned with a person of no means, incarceration is ineffective and in any case should not be used (see also Rambam’s Mishna Torah, The Laws of Lender and Debtor, chapter 2, Halacha 1; Menachem Elon Human Dignity and Liberty in Enforcement (5724-1964)). Second, the application of the least restrictive means test can be seen in the rulings of the Rambam in his writing of Mishna Torah, Laws of Murderer and Protection of Life, chapter 1. The Rambam finds that where one chases after another in order to kill him – and this is the source for the “sentence of the pursuer” – any person in Israel is commanded to stop the pursuer and even kill him if need be (Halacha 6.) Rambam qualifies this, by finding that the permission to kill the pursuer exists only where there is no way to achieve the goal – rescuing the pursued – through less harmful alternatives in terms of the pursuer (Halacha 7). In his words:

“… Since the pursuer would be killed, if it is possible to save him for his limbs – such as striking him with an arrow or a rock or a sward and that his arm may be amputate or his leg may be broken or that he may be blinded this must be done, and where it is impossible to save the other but for killing the pursuer then they must kill him.”

 

Third, the proportional means test: the constituting source for this matter is mentioned in Masechet Avot, chapter 2, Mishna 1 – “and the cost of a Mitzvah must be calculated against its benefit.” We must balance conflicting considerations, when each may be correct and appropriate in itself. In the words of Rabbi Shlomo HaCohen Rabinovitz (the first Admor of Rdumsk) (Poland, the 19^th century) in his essay Tiferet Shlomo “One may have a level and scales of justice in his hands must always think of the cost of a Mitzva against the benefit of it and the benefit of an offense against the cost of it. When often it seems fitting in his heart to perform a Mitzva that he may pray with greater holiness and cleanliness, in order that he may forget his offense against the laws of the Torah on the other hand. In conclusion, here are the words of Rabbi Moshe Chaim Lucato, Italy-Holland-Israel, 18^th century) in his well known book Mesilat Yesharim, chapter 3.

 

“And I see a person’s need to be exact and to weigh his ways everyday as the great merchants who always navigate their businesses so that they may not go bad, and he sets times and hours for it so that it is not random, but with great regularity, as it is the father of productivity. And sages may their memory be a blessing instructed us explicitly of the need for such calculations, and this is what they said (Bavli, Baba Batra, 78): therefore the governors may say let us calculate, and those who control their nature and impulses shall say let us calculate the calculations of the world – the cost of a mitzvah against its benefit and the benefit of an offense against its cost.”

 

36. Let us turn to applying these tests to the case before us. As noted, we must begin with the question whether the means realizes the end. In other words, does the Respondent’s decision not to permit the indexation of judgments by the Petitioner indeed protects the privacy of the litigating parties. I am afraid that the answer is not in the affirmative. The Respondent wishes to prevent the location of judgments through web search engines by using search terms, but this is not the outcome of its decision, so it seems. The Respondent’s decision limits the indexation of judgments by those granted direct access to its case law database, but it does not effectively limit its indexation by third parties who may post them to its site.

 

37. In order to understand the issue and its significance, we must discuss two factual elements. First, the likelihood of passing on the judgments to a third party. One of the central characteristics of the information age is the speed and ease with which information passes from one person to another with the push of a button. This is true for information protected under copyrights (Niva Elkin-Koren, Copyrights and Competition – from a Market of Copies to a Regime of Policing, Din U’Dvarim 485, 541 (2006); see also Niva Elkin-Koren, The New Brokers in the Virtual ‘Market Square’, Mishpat U’Mimshal 6, 381 (2003)), let alone where we are concerned with judgments which inherently are subject to no copyright limiting their dissemination (see section 6 of the Copyright Law, 5768-2007). Let us further recall that the Petitioner is a commercial corporation who profits from disseminating judgments. That is, passing the judgments to a third party is under no doubt, but should assumed to be fact. Second, indexation by a third party: it is important to emphasize that indexation is the default and that preventing indexation is an active choice made by the owner of a website. As a result, almost any third party who may publish the judgments on its website – for instance a website of a law firm or a news site – would inherently result in their finding on web search engines. It is unnecessary to note that the privacy of a litigating party is violated as a result of the mere finding of a judgment – which includes his personal details – on a web search engine, and the identity of the website to which the search engines refers does not negate this infringement. Therefore, it is reasonable to assume that ever where the Respondent’s decision to take effect – the search of a litigating party’s name on a search engine would still lead to his judgment, were it to be published by anyone.

 

38. Having said all this, there is still room to believe that the Respondent’s decision would prevent the indexation of some judgments, this because, one may think, not all the judgments published in the Petitioner’s website would be copied and published on websites of third parties. Let us recall that the Petitioner’s website includes most of the decisions and the judgments handed down in courts in Israel. Those judgments that are not copied are “spared” the indexation process thanks to the Respondent’s decision which prevents the Petitioner from indexing the judgments on its website. Seemingly – small consolation, but there is room for doubt here as well. Naturally, the most problematic judgments in terms of the privacy of litigating parties may be those which create the greatest interest among the general public. Hence the concern that judgments containing sensitive and personal details about litigating parties will not remain on the Petitioner’s website as a “stone unturned” (Bavli, Avoda Zarah, 8, 2.) In any event, a complete “seal” or close to it is not what we are concerned with here at all.

 

39. We therefore learn that the Respondent’s decision seemingly does not fulfill its purpose, or sadly – does so partially and insufficiently. This simply means that this point is greatly important. Let us continue to the next test – the least restrictive means test. This test as well does not shed a positive light on the Respondent’s decision. As noted, the Respondent’s goal – which is positive in its essence, on a human and value level – is the prevention of infringement to the privacy of litigating parties, which is caused by locating their judgments on web search engines. By doing so, the Respondent draws a “line in the sand” and states that posting on the internet (for instance on the Respondent’s website) in and of itself is proportionate, but this is not the case for locating the judgments in web search engines. We addressed above the practical aspect of the distinction between the internet and web search engines and later we shall also address the aspect of the legal norm. We shall now consider the issue of alternatives.

 

40. I myself believe, that there are several alternative means that realize the purpose in a similar manner (and perhaps even more so) without harming the Petitioner’s freedom of occupation or the principle of a public hearing. Apt for this issue the words of then Justice Orr (the Avi Itzhak case 82, para 46 of his judgment):

“Another aspect which the Court must consider when deciding whether to prohibit a publication or to temporarily suspend it, goes to the existence of other authorities granted to the Court, which may satisfy the ‘need’ to protect one’s good reputation. The principle is that the use of the means of publication prohibition must be ‘a last resort’. This is a drastic means, whose harm to the public hearing is difficult and egregious. Using this means may prevent, to a great extent, the effective publicness of hearings. Therefore, the Court may seriously consider the matter of whether alternative means that are less restrictive and which may realize the purpose of preventing unnecessary harm to the good reputation of a plaintiff, exist.”

 

Indeed, it seems the proper way to prevent publication of sensitive information in web search engines does not include the prohibition of some indexation or another, but it must simply be ensured that sensitive information is not found in a judgment, even before it is published to the general public – and this may be done in several ways. The Respondent may conduct refresher trainings to the administrative and legal staff on issues of privacy in writing judgments; it is possible publish the judgment to the litigating parties alone, several days before publishing on the internet, while providing the parties with opportunity to seek the redaction of irrelevant personal details (this is the path of American law. See Fed. R. Civ. P. 5.2(e); fed. R. Crim. P. 49.1(e); Fed. R. Bankr. P. 9037(e); see also Conley, Datta & Sharma, Cyberlaw: Sustaining Privacy and Open Justice, 71 Md. L. Rev. 772, 781-82; see and compare Australian law Rule 2.29 of the Federal Court Rules 2011, made under the Federal Court of Australia Act 1976; it is not unnecessary to mention that it is possible to find American judgments through the web engine “Google Scholar”.) In this context, I shall note that in the United States there are courts which use an algorithm that scans the judgment – before its publication – and searches for sensitive information that may be contained in it such as ID numbers (see, for example, in the State of Florida “Online Electronic Records Access Application” 27, 2014, which appears on the Florida courts’ website – www.flcourts.org.) Additionally it is possible to write judgments and pleading papers in formats that do not leave a possibility for leaking personal details that are not necessary, and this is not a pie in the sky (see Yehonatan Klinger, Protection of Privacy in Writing Judgments: The Defect is in the Design, on the blog Intellect or Insanity, https://2jk.org/praxis/?p=5387 (March 29, 2015)). And in the Vehicle Insurance Database case, I had to opportunity to say the following:

“I recall from my days as a judge in the District Court a long time ago, that I wondered why the names of parties are published in family cases. Indeed that was close to two decades ago, and there were yet to be the developed databases there currently are or the computerization, and judgments therefore were not in the public domain to the same extent. Today, when by easy typing and minimal effort it is possible to access all of case law, the potential harm to those whose health details may be exposed is greater.”

 

Indeed there are things that today are thoughts of the heart and tomorrow are reality. All the steps mentioned above – which are not mutually exclusive of each other – may reduce the infringement upon the privacy of litigating parties without harming the Petitioner’s freedom of occupation or the principle of a public hearing.

 

In conjunction to the steps mentioned, there are additional steps that may be promoted on a legislative level. Thus, it is possible to initiate a proposal that would establish that the names of litigating parties be published by initials alone, as it is done to some extent in other countries (see, for example, in France: Commission Nationale de I’informatique et des libertes (CNIL), Deliberation N. 01-057 of 29 November 2001, and in Belgium – Commission de modernisation de l’ordre judicaire, “Rapport consacre a la question de la publication des decisions judiciaries: La plume, le Pelikan et le nuage,” 30 Juin 2014.) It shall be noted that a similar proposal was indeed raised in Israel, but it did not successfully make its way through the legislative process (The Courts Bill (Amendment – Non-Mention of Names in Judgments), 5768-2007; see also Tomer Moskovitz, Protection of Privacy in Courts’ Publications – Is it Proper to Publish Names in Judgments?, Mishpatim 18 431 (1989). Let us recall here that the legislative branch is aware of the harm done to the privacy of litigating parties as a result of publishing judgments, and operates in order to balance between this harm and the principle of a public hearing. This, section 10(4)(b) to the Family Courts Law, 5755-1995 states that most family cases be adjudicated confidentially and in closed hearings, and as a result their publication (and see section 70(a) of the Law) is in the absence of parties’ names but as “Anonymous v. Anonymous” (and see on the other hand the Courts Bill (Amendment – Requiring Publication of Judgments and Decisions of Family Courts), 5771-2010; see also Rina Bogush, Ruth Halperin-Kedari and Eyal Katvan, The ‘Hidden Judgments’: The Impact of Computerized Databases on the Creation of the Legal Knowledge Body in Israeli Family Law, Iyunei Mishpat 34 603 (5771-2011)). A Similar provision, in regards to juveniles’ cases, is found in section 54(2) of the Juvenile Law (Adjudication, Penalty and Manners of Treatment) (Amendment n. 14), 5768-2008 (see also the Court’s Bill (Amendment – Prohibition of Publication of Minors’ Names in Civil Proceedings), 5769-2009). Another examples is amendment n. 77 of the Courts’ Law which states that “No one shall publish the name or identification number of a litigating party who claims recovery for bodily injuries…” From the collection of all this it appears that this is not a legislative vacuum in which the Respondent operates but in regards to an issue to which the legislature’s eye is open “from the beginning of the year and until the end of it” (Deuteronomy 11, 12) and it is possible that there may be more to come.

 

41. And now to the third stage in the proportionality test, where narrow proportionality is examined. Does the benefit of the decision outweigh its cost? Does the protection extended to the privacy of litigating parties as a result of the Respondent’s decision is worthy of the harm to public hearings and to freedom of occupation? Is the “narrow equal the harm” (Book of Esther, 7, 4). This test is on its face redundant in light of our prior holdings whereby no source of a lawful authority was found for the decision (para. 25), it seems not to have realized its purpose (paras. 37-38) and it was selected despite the availability of less restrictive alternatives (para. 40.) However, I shall briefly address this test.

 

42. Section 68 of the Courts Law mandates that as a rule, “a court shall adjudicate in public”, at the same time the Law includes various circumstances where publishing in regard to a judicial proceeding may be prohibited (see LCrimA 1201/12, Kti’i v. The State of Israel, para. 18 of Justice Hendel’s judgment (2014), which reasons the principle of a public hearing the while giving a narrow interpretation for exceptions.) Indeed publishing judgments, inherently, causes conflict between the right to privacy and the principle of a public hearing. The Law authorizes the judge to determine on a case by case basis according to the circumstances of the matter at hand (see my opinion in LCA 8019/06, Yediot Aharonot Ltd., v. Meirav Levin, para. 5 (Oct. 13, 2009)). As my collogue, President Naor often says – the law derives from the facts. The Respondent’s decision, on the other hand, summarily privileges the right to privacy, without giving space to the significant difference between different judgments – criminal or civil, judgments and interim decisions, different trials and others. Furthermore, the “immunity from indexation” which the Respondent’s decision provides – and as noted, there is doubt whether judgments are not to find their way to web search engines anyway (paras. 37-38 above) – is not limited to the personal details of litigating parties, but applies to the entire judgment as a whole. It is here that we should mention that the Israeli legal system belongs, in many of its principles, to the tradition of the common law, where judgments constitute a significant part of the law itself (see section 20 of Basic Law: The Judiciary). I would not be overstating to say that in the absence of access to judgments – there is no updated possibility of knowing what the law is in Israel in its entire scope. In other words, The Respondent’s decision may limit intrusive searches into the lives of litigating parties and therein lies its benefit, but this may also prevent a renter of an apartment from knowing what a lack of good faith in performing a contract means in the updated interpretation of this Court.

 

43. We shall also note in this context that the Petitioner’s website includes the ability to search for judgments using parties’ names, and the Respondent’s decision does not prohibit this. This means that anyone could – for a handsome fee – enter the legal database such as the one appearing on the Petitioner’s site and search for their acquaintances’ names. In other words, to the extent that the Respondent’s decision may indeed “rescue” a certain number of sensitive judgments from indexation, the gains in terms of litigating parties’ privacy will be limited to the fact that in order to find them it would be necessary to enter – with a click of a button – a legal database and to pay a certain fee. I do not, of course, take this lightly, but I believe it is difficult to accept the argument whereby this state of affairs – where a judgment that is accessible and searchable on an internet legal database – provides practical obscurity, in contrast to the current state where a judgment may be found through web search engines. A similar matter was discussed in the opinion by the Israeli Institute for Democracy as to the Privacy Protection Bill (Amendment – The Right to Be Forgotten), 5775-2015. In that opinion, Dr. Schwartz-Altschuler writes that: “The Bill before us actually exacerbates the technological difficulty because it addresses only the removal of hits from search engines, without having removed the original pages containing the information. Would anyone think of removing a book from a library catalogue without first removing the book itself from the shelf first? At the end of the day, a possible outcome of the Bill would be deepening the gaps between those who know how to access information that does not appear on web search engines and those who do not and who are dependent upon them” (p. 4 of the opinion.) Therefore, it is revealed before us that the gains for privacy – if any – are small, whereas the costs to public hearing and primarily to the freedom of occupation are great. It is hard to accept that a decision which brings us to this should stand, regardless of its worthy motives.

 

In Conclusion

44. Should my opinion be heard, the Respondent’s decision would be voided, so that the Petitioner may continue to have access to the judgments databases without committing to close its website to web search engines. There is no doubt in my mind that the Respondent operated out of positive motives and out of desire to take initiative in light of the significant changes that the internet age brings upon us. However, I am afraid that such decisions require the legislature’s say about proper regulation of the matter. The recommendations of the Justice Englard Committee, upon their submission, may be assist in this task. In the meantime there may be new technological developments that would allow the matter to be refined further. This decision does not mean that the Respondent must sit idly by and observe the changes in times – indeed, there are many steps open to the Respondent, and some were mentioned explicitly above (para. 40).

 

45. It should be noted that this decision is not at all endorsement of any of the Petitioner’s activities. The pending class action suit against it shall be determined according to the discretion of the presiding court. Additionally, during the adjudication of the case weighty arguments have been raised in regard to actions taken by the Petitioner in order that the search for one’s name on a web search engine may lead to the website it owns, in a manner that misleads to believe that such person appears in the judgment, even if reality is completely different (see para. 12 above.) These claims were raised incidentally and have no direct connection to the petition at the center of this judgment. Naturally, no in depth discussion was held regarding them and of course no evidentiary proceedings. Without setting anything in stone, and without making factual findings that the petitioner acts in some manner or another, I will briefly note that this is a problematic practice that is not consistent with the language of the law, certainly not with its spirit or purpose. This judgments considered the violation of privacy caused to a person, a search of whose name leads to a judgment where his name is mentioned, this cannot be equated to the violation of privacy caused to a person a search of whose name on a web search engine leads to a judgment which appears misleadingly to be connected to him. The harm in the second case is egregious particularly in light of its allegedly deliberate character. Of its face, a violation of privacy caused incidentally is less severe compeered to a harm causes deliberately and by motivation of profiting a commercial company (see and compare HCJ 2605/05, The Academic Center for Law and Business, The Human Rights Department v. The Minister of Finances, para. 33 of President Beinisch’s decision (2009)). The Respondent is assumed to have explored the matter in depth, and to the extent there is truth to the claim – will work to eliminate the phenomenon, as it was said “banish evil from your midst” (Deuteronomy 17, 7.)

 

46. I shall therefore propose to my colleagues that we issue an absolute order whereby the Respondent’s decision is voided. I shall propose under the circumstances not to make any order as to cost.

 

 

 

                                                                                    Deputy President

 

Justice E. Hayut:

 

I join the position of my colleague the Deputy President E. Rubinstein whereby the order nisi must be made absolute and the Respondent’s decision be made void. For purposes of this conclusion, it is sufficient that the Respondent’s decision from August 18, 2014 was made in the absence of explicit lawful authorization, which is required in light of the gravity of the relevant rights – freedom of occupation, the principle of public hearing, and freedom of expression on the one hand and protection of privacy on the other (as to the relationship between the scope of an authorizing provision and the strength of the relevant protected right see also HCJ 4491/13, The Academic Center for Law and Business v. The  Government of Israel (July 2, 2014)).

 

Balancing between the values and the basic rights noted is no simple task at all and my colleague the Deputy President discussed this in his illuminating opinion. This balance ought to be designed and regulated by the legislature or according to his explicit authorization. In the absence of such authorization, I join the position of my colleague that the decision subject the Petition, made by the Respondent on August 18, 2014, was made without authority.

 

                       

                                                                                                Justice

 

Justice U. Vogelman:

 

I join the outcome reached by my colleague, Deputy President E. Rubinstein, in his comprehensive opinion whereby the order nisi must be made absolute and that the Respondent’s decision in question must be voided, as well as my colleague’s main reasons as detailed above.

 

We are in the midst of an information revolution that was brought by the internet age. Information that was once accessible only to experts in their field is now accessible to anyone who seeks in, quickly and easily. The law lags behind, as it usually does, these developments which regularly require new interpretations to old legislation – in the spirit of the times and the technological advances – and the different balances that may alter established decisions (see, for instance, my opinion in AAA 3782/12, Tel Aviv-Yafo District Police Commander v. The Israeli Internet Association (March 24, 2013.)) The judiciary authority is not exception, and it too must rethink certain issues. Such is the issue before us today, which was raised in light of the Respondent’s demand that the Petitioner (and other legal databases) sign a “Document of Guarantee” whereby it commits to take all necessary steps in order to prevent the indexation of decisions and judgments given to it. The decision to require the Petitioner’s signature on this Document of Guarantee was made – according to the Respondent in its papers – in light of the scope and severity of privacy violations suffered by litigating parties, a violation which the Respondent believe may be reduced by way of preventing the indexation of judgments on  search engines. This, because the principle of a public hearing does not require, in the Respondent’s approach, making the information in the judgments accessible to the public specifically through web search engines.

 

The Respondent’s considerations are indeed worthy. But what is their outcome? Reuven, who is a lawyer, searches for Shimon’s name in a legal database – Takdin, for example – to which he has access through his occupation. The search leads him to a judgment where Shimon’s name is mentioned – as someone who was a party to a legal proceeding, served as a witness in the proceeding, or any other relevant part of it. Levi, who is not a lawyer, searches for Shimon’s name on Google. Through Takdin Light, his search leads Levi to that same judgment that Reuven found as well. The Respondent’s decision wishes to prevent Levi the ability to locate the judgment through the web search engine in order to reduce the infringement upon Shimon’s privacy. This is what it means: lawyers, jurists, and those with access to legal databases will be able to find what they are looking for; but not the general public. The ability to locate judgments is not eliminated then, rather only those with access to the various legal databases – access which requires significant funds, as well as research skills that are not necessarily acquired by the general public – may locate them. In my opinion – in light of the nature of the rights at stake and in light of the high significance and the broad consequences such a decision – which requires a delicate balance between a variety of relevant considerations which may pull in opposite directions – necessitates a legislative anchor, which is not present in our matter.

 

This on the authority level. As to the discretion level – indeed it is possible that, as my colleague put it, the Respondent’s decision would save several judgments from indexation, but this is insufficient. First, as noted, it is doubtful whether indeed the privacy of litigating parties (as well as others mentioned in different judgments, to their benefit or not) is ensured through the Respondent’s decision, given the option third parties hold to publish different judgments through their sites. Second, and more importantly, this harm can be reduced through alternatives, a few of which my colleagues presented in his opinion, including, for example, advance delivery of judgments to parties in order that they may move for redaction of private and irrelevant details; computerized scanning of judgments designed to locate sensitive information; and various legislative steps (see para. 40 of my colleague’s opinion). All of these are available without minimizing at all the duty to make sure in advance that sensitive information – certainly that which is not material to determining a dispute – is not included in a judgment even in advance of its publication to the general public, a duty imposed primarily upon judges. Noting all this, the Respondent’s decision, whose good intentions are clear, is flawed in my view on the discretion level as well, as clarified by my colleague.

 

As said, I join the decision of my colleague according to which the Respondent’s decision must be voided.

 

 

                                                                                                Justice

 

 

 

It was decided as said in the opinion of Deputy President E. Rubinstein.

 

Handed down today, 30 Heshvan 5776, (November 12, 2015)

 

 

 

Deputy President                                            Justice                                                 Justice

 

HCJ 2144/20

HCJ 2145/20

HCJ 2169/20

HCJ 2171/20

HCJ 2175/20

 

Petitioner in HCJ 2144/20:                 Movement for Quality Government in Israel

 

Petitioner in HCJ 2145/20:                 “Hozeh Hadash” R.A.

 

Petitioner in HCJ 2169/20:                 Association for Progressive Democracy

 

Petitioners in HCJ 2171/20:                1.  Blue and White Faction

                                                            2.  MK Avraham Nissenkorn

                                                            3.  Labor-Meretz Faction

 

Petitioners in HCJ 2175/20:                1.  Yisrael Beiteinu

                                                            2.  MK Oded Forer

 

                                                                        v.

 

Respondents in HCJ 2144/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Knesset Legal Advisor

                                                            4.  Likud Knesset Faction

 

Respondents in HCJ 2145/20:            1.  Speaker of the Knesset

                                                            2.  Knesset Legal Advisor

                                                            3.  Attorney General

                                                            4.  The 34^th Government of Israel

                                                            5.  Likud Faction

 

Respondents in HCJ 2169/20:            1.  Speaker of the Knesset

                                                            2.  Likud Faction

 

Respondents in HCJ 2171/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Likud Faction

 

Respondents in HCJ 2175/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Knesset Legal Advisor

                                                            4.  Likud Faction

 

 

Attorneys for the Petitioners

in HCJ 2144/20:                                  Eliad Shraga, Adv., Tomer Naor, Adv., Hiday Negev, Adv.

 

Attorney for the Petitioners

in HCJ 2145/20:                                  Yuval Yoaz, Adv.

 

Attorney for the Petitioner

in HCJ 2169/20:                                  Yifat Solel, Adv.

 

Attorneys for Petitioners 1-2

in HCJ 2171/20:                                  Shimon Baron, Adv., Eran Marienberg, Adv., Oded Gazit, Adv.

 

Attorney for Petitioner 3

in HCJ 2171/20:                                  Omri Segev, Adv.

 

Attorney for the Petitioner

in HCJ 2175/20:                                  Eitan Haberman, Adv.

 

Attorneys for Respondents 1-3

in HCJ 2144/20; Respondents

1-2 in HCJ 2145/20; Respondent 1

in HCJ 2169/20; Respondents 1-2

in HCJ 2171/20; Respondents 1-3

in HCJ 2175/20:                                  Eyal Yinon, Adv., Avital Sompolinsky, Adv.

 

Attorney for the Respondent

In HCJ 2145/20:                                  Nahi Benor, Adv.

 

 

Attorneys for Respondent 4 in

HCJ 2144/20; Respondent 5 in

HCJ 2145/20; Respondent 2 in

HCJ 2169/20; Respondent 3 in

HCJ 2171/20; Respondent 4 in

HCJ 2175/20:                                      Avi Halevi, Adv., Michael Rabello, Adv.

 

 

 

Israeli Supreme Court cases cited:

[1]        HCJ 4044/95 Porat v. Speaker of the Knesset, IsrSC 49(4) 177 (1995)

[2]        HCJ 652/81 M.K. Yossi Sarid v. Chairman of the Knesset, Menachem Savidor, IsrSC 36(2) 197 (1982) [https://versa.cardozo.yu.edu/opinions/mk-sarid-v-chairman-knesset]

[3]        HCJ 8815/05 Landstein v. Spiegler, (Dec. 26, 2005)

[4]        HCJ 7510/19 Or-Cohen v. Prime Minister, (Jan. 9, 2020)

[5]        HCJ 4374/15 Movement for Quality Government v. Prime Minister, (March 27, 2016) [summary: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]        HCJ 706/19 Freij v. Speaker of the Knesset, (March 28, 2019)

[7]        HCJ 3747/19 Aviram v. Knesset of Israel, (June 18, 2019)

[8]        HCJ 1843/93 Raphael Pinchasi, Deputy Minister and Member of Knesset v. Knesset of Israel, IsrSC 49(1) 661 (1995)

[9]        HCJ 2704/07 Movement for Governmental Fairness v. Knesset Committee, (Jan. 28, 2008)

[10]      HCJ 1179/90 Ratz Faction – The Movement for Civil Rights and Peace v. MK Ovadia Ali, Deputy Speaker of the Knesset, IsrSC 44(2) 31 (1990)

[11]      HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister of Israel, (April 13, 2016) [https://versa.cardozo.yu.edu/opinions/yesh-atid-party-v-prime-minister]

[12]      HCJ 142/70 Shapira v. Bar Association District Committee, IsrSC 25(1) 325 (1971)

[13]      HCJ 4805/07 The Center for Jewish Pluralism – The Movement for Progressive Judaism in Israel v. Ministry of Education, IsrSC 62(4) 571 (2008) [https://versa.cardozo.yu.edu/opinions/center-jewish-pluralism-v-ministry-education]

[14]      HCJ 4742/97 Meretz Faction in the Jerusalem Municipality v. Minister for Religious Affairs, (Dec. 15, 1998)

 

Supreme Court of the United Kingdom cases cited:

[15]      R. v. The Prime Minister; Cherry v. Advocate General for Scotland, UKSC 41 (2109)

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

 

Petitions for order nisi

 

 

Partial Judgment

(March 23, 2020)

 

President E. Hayut:

1.         The five petitions before the Court are directed against Respondent 1, the acting Speaker of the Knesset (hereinafter: the Speaker), not to include the election of a permanent Speaker for the 23^rd Knesset on the Knesset plenary agenda, although a request in this matter was presented to him by Knesset factions representing 61 Members of Knesset.

            At the outset, I would note that some of the petitions requested additional remedies concerning the appointment of an Arrangements Committee, and in regard to the application of the provisions of the Public Health (New Coronavirus) (Home Isolation and Other Directives) (Temporary Provision) Order, 5790-2020 (hereinafter: the Public Health Regulations) to the activity of the Knesset, due to the outbreak of the coronavirus in Israel. However, as we noted in our decision from yesterday (March 22, 2020), it would appear that those remedies became superfluous when it became clear from the responses of the relevant respondents and the explanations of the Knesset Legal Advisor in the hearing that the appointment of the Arrangements Committee is on the agenda of today’s plenary session, and the Public Health Regulations will not prevent convening the Knesset plenum and committees. Therefore, we ordered an updated notice in regard to these two issues, and the hearing before the Court focused upon the question of convening a plenary session for the purpose of electing a permanent Speaker.

            This partial judgment will, therefore, address this question alone.

 

Factual and historical background

2.         Elections for the 23^rd Knesset were held on March 2, 2020, and it was set to be sworn in on March 16, 2020. In anticipation of the swearing in of the Knesset, several factions, comprising 61 Members of Knesset, requested that the Speaker of the Knesset include on the agenda of that session, inter alia, a motion for the election of a permanent Speaker for the 23^rd Knesset. The Speaker refused to do so, giving as his reason that “the immediate need of the State of Israel is a broad unity government […]”, and added that “hasty political moves, like electing a permanent Speaker of the Knesset and the enactment of controversial legislation, are intended to put an end to the possibility of the unity that the nation desires”.

            On March 15, 2020, the attorneys of the Blue and White faction requested that the Knesset Legal Advisor express his opinion as to the Speaker’s refusal to accede to their request to include the matter of electing the Speaker on the Knesset’s agenda. The following day, the attorneys of the Blue and White faction renewed their request to the Speaker of the Knesset and the Knesset Legal Advisor, and insisted that, in their opinion, the Speaker did not have the authority to prevent a debate on this matter. In a letter sent by the Knesset Legal Advisor to the Speaker of the Knesset on March 18, 2020, the Knesset Legal Advisor addressed the importance of convening the Arrangements Committee, but refrained from addressing the issue of appointing a permanent Speaker.

3.         That led to the submission of the petitions before the Court, which were submitted by The Movement for Quality Government, the “Hozeh Hadash” Association, The Association for Progressive Democracy, the Blue and White faction and the Labor-Meretz faction, and the Yisrael Beiteinu faction (hereinafter, collectively: the Petitioners). All of the petitions are directed against the acting Knesset Speaker, MK Yoel (Yuli) Edelstein, and part against the Knesset and the Knesset Legal Advisor, Advocate Eyal Yinon. One petition (HCJ 2145/20) was also directed against the Attorney General and the Government. At its request, the Likud faction (hereinafter: the Likud) was joined as a respondent to the petitions.

 

Arguments of the parties

4.         The Petitioners argue that the acting Speaker has a personal conflict of interests, is acting unreasonably, and that his decision not to include the election of a permanent Speaker of the Knesset on the Knesset agenda is tainted by extraneous considerations. The Petitioners note that sec. 2(b) of the Knesset Rules of Procedure, which establishes that the Speaker of the Knesset be elected no later than the date on which the Knesset convenes for the purpose of establishing the Government, defines the final date for the election of the permanent Speaker, and emphasize that the current Speaker, who acts by virtue of the Knesset continuity rule, is frustrating the will of the majority of the Members of Knesset, and is thereby undermining public trust in the organs of government and the principle of separation of powers.

5.         As opposed to this, Respondents 1-3 – the acting Speaker, the Knesset, and the Knesset Legal Advisor – argue that this Court should not intervene in the Speaker’s decision, and that in accordance with sec. 2(b) of the Knesset Rules of Procedure, the Speaker can be elected at any stage between the convening of the Knesset and the establishing of the Government. However, the positions of the Speaker and of the Legal Advisor diverged on this point. According to the Speaker, he enjoys discretion in deciding upon the agenda of the plenum, and he therefore acted within the bounds of his authority, reasonably, and in accordance with custom when he took account of considerations related to the coalition negotiations, particularly in light of the outbreak of the coronavirus and the national state of emergency. As opposed to that, the Knesset Legal Advisor is of the opinion that while the Speaker is, indeed, granted discretion in regard to setting the agenda of the plenum, and that the Knesset Rules of Procedure require the election of a permanent Speaker prior to the establishment of the Government, but he adds that the current Speaker holds office by virtue of the continuity doctrine, and “as a temporary trust” until the election of a permanent Speaker. Therefore, inasmuch as a majority of the Members of Knesset requests that the Knesset elect a permanent Speaker immediately, the margins of the Speaker’s discretion in regard to postponing the date contract with the passage of time.

            The Likud is of the opinion that the Speaker acted in accordance with the law and the Knesset Rules of Procedure, and that the Court should not intervene in the exercise of his discretion.

6.         In the hearing held on March 22, 2020, the Knesset Legal Advisor though it appropriate to point out that electing a permanent Speaker of the Knesset before clarifying the balance of political power and the future composition of the Government could lead to a “governance problem” that could severely impact the functioning of the Government if it ultimately transpires that the permanent Speaker of the Knesset is a member of the opposition. However, the Knesset Legal Advisor explained in the course of his arguments that at present, and in order to prevent “serious mishaps”, we should wait for “an additional, short period”, and no more. In the hearing, the Attorney General, who did not address the issue of appointing a permanent Speaker in his written response, also pointed out that, in his view, once 61 Members of Knesset asked that the subject be placed on the agenda, the Speaker must accede to the request “as soon as possible”.

 

Discussion and decision

7.         The rule is that the authority to establish the Knesset’s agenda and the date of its deliberations is granted to the Speaker (see sec. 25(b) of the Knesset Rules of Procedure). These are clearly “internal parliamentary” matters, and as a rule, this Court refrains from intervening in them (see: HCJ 4044/95 Porat v. Speaker of the Knesset [1] 179), except in special cases that threaten harm to “the fabric of democratic life” (ibid.) or to the fundamental structure of our parliamentary regime (HCJ 652/81 Sarid v. Chairman of the Knesset [2]).

            Does the Speaker’s refusal to put the election of the permanent Speaker of the 23^rd Knesset on the plenum’s agenda constitute one of those special cases in which there is a fear of harm to “the fabric of democratic life” or to the fundamental structure of our parliamentary regime?

            That is the central question presented for decision in the petitions before the Court.

8.         These are the primary legal provisions relevant to the matter:

            Section 20(a) of Basic Law: The Knesset provides that:

The Knesset shall elect from among its members a Speaker and Deputy Speakers. Until the election of the Knesset Speaker, the Speaker of the outgoing Knesset shall continue to serve, should he have been reelected as a Member of the Knesset, and if he has not been reelected the most veteran Knesset Member, who is not the Prime Minister, a Minister or Deputy Minister, shall serve as acting Speaker. In this article, "most veteran" – whoever has served in the Knesset for the longest period, consecutively or intermittently, and from among those with equal seniority – the eldest among them.

            The language of this provision was established in an amendment to the Basic Law in 2016. Prior to that amendment, the most veteran Knesset Member served as acting Speaker even if the Speaker of the outgoing Knesset was reelected as a Member of Knesset. The Explanatory Notes to the Bill noted that the amendment was intended to apply the continuity principle to the office of Speaker of the Knesset, in a manner similar to that set out in sec. 30 of Basic Law: The Government in regard to the continuity of the Government.

            Section 2(b) of the Knesset Rules of Procedure, mentioned above, further establishes in regard to the election of the Speaker of the Knesset:

The Speaker shall be elected no later than the date on which the Knesset convened for the purpose of establishing the Government, as stated in article 13 of Basic Law: The Government. Should the election of the Knesset Speaker be scheduled for the same date set for the sitting for the purpose of establishing the Government, the Speaker shall be elected first.

            Section 2(b) sets a timeframe according to which the latest date for the election of the Speaker of the Knesset after its convening is the date of establishing the Government. This provision leaves it to the discretion of the acting Speaker to decide upon the date within this timeframe for putting the election of the permanent Speaker on the agenda of the plenum.

            As opposed to the position of Respondent 1, we are of the opinion that, given the fact that we are concerned with an acting Speaker serving by virtue of the continuity rule, and given that the matter directly concerns him, the discretion afforded him in this regard is not broad, but rather very limited and defined. This is particularly true given that over the course of the last year, there were three elections, and Respondent 1 has, in practice, served as acting Speaker since the convening of the 22^nd Knesset.

9.         Indeed, since the dissolution of the Knesset on Dec. 26, 2018, we are locked in an exceptional governance situation that is the result of the failure of the public’s representatives to constitute a permanent Government in Israel even after three rounds of elections that took place on April 9, 2019, on Sept. 17, 2019, and on March 2, 2020. On April 30, 2019, following the elections for the 21^st Knesset, at the time of swearing in of the Knesset, Respondent 1 was elected to serve as Speaker by a majority of 101 Members of Knesset and without opposition. He now serves as acting Speaker by virtue of the continuity principle under sec. 20(a) of Basic law: The Knesset, after the 21^st Knesset and the 22^nd Knesset ended their short terms and dissolved. As the Knesset Legal Advisor stated in his response to the petitions, the Speaker holds his office “as a temporary trust” until the election of a permanent Speaker. This exceptional situation necessarily affects the scope of the Speaker’s authority and his discretion. Just as an interim Government acting by virtue of the continuity principle is required to act cautiously and with restraint (see: HCJ 8815/05 Landstein v. Spiegler [3], para. 9 of the opinion of Justice A. Procaccia; HCJ 7510/19 Or-Cohen v. Prime Minister [4], para. 8 of my opinion), so, too, the acting Speaker. The importance of caution and restraint on his part becomes particularly clear in view of the character of the role of the Speaker, which obligates him to impartiality and stateliness[1] (Amnon Rubinstein & Barak Medina, The Constitutional Law of the State of Israel: Institutions, 716 (2005) (hereinafter: Rubinstein & Medina) (Hebrew); Amnon Rubinstein & Raanan Har-Zahav, Commentary on Basic Law: The Knesset, 80 (1993) (hereinafter: Rubinstein & Har-Zahav) (Hebrew)). In the present case, there is no avoiding the conclusion that the Speaker’s decision not to bring the matter of electing a permanent Speaker for a plenary vote is incompatible with the scope of his authority as acting Speaker, and it deviates from the margin of discretion granted to him.

10.       The defect in this conduct primarily inheres in the fear that it frustrates the will of the electorate. As we know, “the elections for the Knesset constitute the implementation of the basic principle of decision-making in a democratic system of government – decision by the majority” (Rubinstein & Medina, p. 557). The essence of the democratic process is the possibility of translating the votes received by the members of the Knesset, as the elected representatives of the people, into political influence. In the present matter, the house factions, comprising 61 Members of Knesset, seek to exercise their political power in order to try to elect a permanent Speaker for the 23^rd Knesset, a role whose importance and centrality to the administration of the affairs of the Knesset requires no elaboration (see sec. 6 of the Knesset Rules of Procedure). Therefore, intervention in this effort of the majority of the Members of Knesset constitutes a form of harm to the decision of the electorate. In this regard, as the legal advisors of the Knesset and the Government noted, the passage of time after the date of the convening of the Knesset is of significance given the timetables for the establishing of a Government as set out in Basic Law: The Government. Indeed, “foot dragging” in putting the matter on the agenda might lead to the actual frustration of the election of a permanent Speaker of the 23^rd Knesset.

11.       Moreover, the Speaker’s position that the election of a permanent Speaker is contingent upon the efforts to form a Government puts the cart before the horse. The Knesset is the sovereign. The Knesset is not “the Government’s cheerleading squad” in the vivid language of Deputy President E. Rubinstein in HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 142). Indeed, in the Israeli system of government, the Government enjoys a majority in the Knesset, and it has significant ability to influence the Knesset’s functioning thereby and by virtue of the practice of coalition discipline. But that absolutely does not mean that it can, thereby, take steps that would constitute a substantive erosion of the independence of the Knesset. Respondent 1 explained his refusal by pointing out, inter alia, that Israel’s citizens are hoping that, finally, a Government will be established after three rounds of elections. Certainly, those words correctly express the public sentiment that it would be proper that the leaders wake up and save the “ship of governance” from the dead end in which it is trapped, and this is, indeed, the immediate need, and all the more so in these corona times that have lately befallen us. But that hope – that we all share – cannot serve as a reason for the Speaker’s refusal to bring the election of a permanent Speaker to a vote, inasmuch as by doing so, he places a political consideration regarding the forming of a Government at the heart of his refusal – however it may be constituted. Such a political consideration has no place in the margin of discretion granted to him on the question of whether or not to include motions for the agenda of the Knesset plenum, and all the more so when the matter is the election of the Speaker himself.

            The fact that we are currently in a governmental transition period in which a Government that enjoys the confidence of the Knesset has not yet been formed, also reinforces this conclusion. It may be presumed that the Members of Knesset who seek to place the matter of the election of a permanent Speaker before the plenum are aware of the significance and implications of taking this step. Nevertheless, they ask, and ask again to bring the matter before the plenum. The refusal to place the election of a permanent Speaker on the agenda of the Knesset plenum leads to the result that the members of the Knesset are prevented from exercising their discretion on this matter, without regard for the results of the vote.

12.       The customary, accepted tradition of the Knesset’s work also carries weight in the present matter (HCJ 706/19 Freij v. Speaker of the Knesset [6], para. 9 of my opinion). The Knesset Legal Advisor noted that, in practice, most Knessets elected a Speaker on the day that the Knesset convened (para. 36 of the response of Respondents 1-3; and see: Rubinstein & Har-Zahav, p. 30). In this regard, it would not be superfluous to point out that one of the rationales grounding the bill for amending Basic Law: The Knesset, which applied the continuity rule to the Speaker, was that the permanent Speaker was customarily elected in close proximity to the convening of the new Knesset, and generally at the first plenary session. It was therefore decided that it did not make sense to appoint “the most veteran Knesset Member” as acting Speaker for such a short period, and it would be better to apply the continuity rule to this office, as well.

13.       The Knesset Legal Advisor further raised the fear of a “governance problem” that might ensue if a Speaker were elected at present, and it would later transpire that he was a member of the opposition. At present, the possibility of the realization of that fear is unclear. In any case, it may be presumed that whoever may be elected to serve as the permanent Speaker of the Knesset will carry out his office in a stately manner, in accordance with the law, custom and procedures established by the Knesset. That will also be the case even if the members of the party he represented will sit in the opposition. That is how Respondent 1 acted over the years, and that, in general, is how his predecessors acted in the past. Indeed, it was not without reason that Basic Law: The President of the State establishes that if the position of President of the State is vacated, and as long as a new President has not assumed office, the Speaker of the Knesset shall serve as acting President of the State (sec. 23(a) of Basic Law: The President of the State), which teaches us that the stately character of the office of Speaker of the Knesset is second only to that of the President of the State.

14.       Pursuant to the hearing held yesterday, March 22, 2020, and given the position of the Knesset Legal Advisor that we should only wait an additional, short period before bringing the matter of the election of a permanent speaker to a vote, and given the position of the Attorney General that it should be done as soon as possible, we asked for the Speaker’s position in regard to his willingness to put the matter on the agenda of the Knesset as soon as possible, and no later that Wednesday, March 25, 2020 (see our decision of March 23, 2020). The Speaker responded this evening that he is of the opinion that the intervention of this Court in the discretion of the Speaker of the Knesset to set the agenda of the plenum and bring the matter of his election to a vote is a precedent-setting intervention in the political agenda and in his discretion that is improper at this time. He noted that due to the special circumstances, he is hard pressed to state a precise date, but that he intends to place the matter on the Knesset’s agenda when the political situation becomes clear.

15.       In summary – the Speaker’s continued refusal to allow the Knesset plenum to vote on the election of a permanent Speaker undermines the foundations of the democratic process. It clearly harms the status of the Knesset as an independent branch of government and the process of governmental transition, and this all the more so as the days pass since the swearing in of the 23^rd Knesset. Therefore, in these circumstances, there is no recourse but to conclude that we are concerned with one of those exceptional cases in which the intervention of this Court is required in order to prevent harm to our parliamentary system of government.

            I would therefore recommend to my colleagues that we issue an order absolute instructing the Speaker of the Knesset to convene the Knesset plenum as soon as possible for the purpose of electing a permanent Speaker for the 23^rd Knesset, and no later than Wednesday, March 23, 2020.

 

Justice Neal Hendel:

            I concur.

 

Justice I. Amit:

            I concur in the decisive opinion of my colleague the President, Justice E. Hayut.

1.         The timeframe is short, and I will, therefore, only add a few words on the issue before us, which will, no doubt, give academic scholars a broad basis for discussion.

Truth be told, we are treading constitutional paths that our feet, and those of our predecessors, have not yet trodden since the establishment of the State to the present day. The new reality, perhaps anomalous, that is suddenly upon us gives rise, by its very nature, to constitutional issues that have not yet been elucidated (my opinion in HCJ 3747/19 Aviram v. Knesset [7].

            The above was stated in regard to the 21^st Knesset, for which elections were held on April 9, 2019. A year has passed at a stroke and seems but a few days, and we now stand at the outset the 23^rd Knesset. In the year that passed, we witnessed two other rounds of elections, but the political instability remains as it was, and has even increased. The various rifts in society have broadened, and the legal and constitutional fog has thickened. And if that were not enough, we are in the midst of the rising storm of the coronavirus, whose consequences are still too early to foresee.

            We say this as a reminder that in difficult times we must attend to the rims and spokes of the carriage so they not fall apart. Particularly in this sensitive, difficult period, we must not undermine the very existence of the system, nor deviate from the written and customary rules of the game.

2.         Israel is a parliamentary democracy that employs a proportional, national system of elections that leads to a multi-party system. After the elections, the Knesset is sworn in, and normally it immediately activates its “operating system”. The parliamentary activity is primarily regulated by the Knesset Rules of Procedure. However, in the normative fabric of the Knesset’s activity, the Rules of Procedure constitute secondary legislation (see, e.g., HCJ 1843/93 Pinchasi v. Knesset [8], 712. For more on the status of the Knesset Rules of Procedure, see: Ariel Bendor, The Constitutional Status of the Knesset Rules of Procedure, 22 Mishpatim 571, 574 (5754) (Hebrew)). Thus, the Rules of Procedure are of a lower normative status than the Knesset Law, 5754-1994 (hereinafter: the Knesset Law), which, in turn, is lower that Basic Law: The Knesset. The strength and overarching status of sec. 20(a) of Basic Law: The Knesset stand above sec. 2(b) of the Knesset Rules of Procedure, which also suffices in establishing the latest date for electing the Speaker of the Knesset (“no later than the date on which the Knesset convened for the purpose of establishing the Government”). The drafter of the Rules of Procedure allowed for postponing the election of the Speaker to this late date, but certainly did not intend to frustrate the election of the Speaker earlier than that date,

3.         In its plain meaning, democracy is “majority rule”. However, majority rule is not omnipotent. In the area of legislation, majority rule is subject to limitations deriving from the need to preserve the fundamental rights of people and citizens. In parliamentary activity, majority rule cannot trample the rights of the parliamentary minority (see, in detail, Yigal Marzel, The Constitutional Status of the Parliamentary Opposition, 38 Mishpatim 217 (2008) (Hebrew)). This is the source of the Court willingness to review even “internal” decisions of the legislature in order to protect the right of the minority, despite the judicial restraint that it exercises in regard to intervention in Knesset decisions.

            In various legal fields, the legislature protects the majority against tyranny of the minority (see, e.g., the Land Law, 5729-1969, sec. 30(b), which allows the majority owners of common property to make any decision in regard to the administration and normal use of the property, and sec. 159(a) that permits two-thirds of the apartment owners to decide upon the installation of an elevator on the common property). The present petitions entangle this Court in a situation that was not previously imagined. The political “market forces” did not do their job, and the Petitioners ask the Court to extend relief to the Parliamentary majority and protect the institutional, “core” right of the majority to realize its rights. The harm to the parliamentary majority that seeks to elect a Speaker of the Knesset who “in the fulfilment of his duties represents all the factions of the Knesset and stands at the head of the Knesset” (HCJ 2704/07 Movement for Governmental Fairness v. Knesset Committee, [9]) hereinafter: the Movement for Fairness case) constitutes harm to the fabric of democratic life and to the fundamental structure of our parliamentary regime (HCJ 652/81 Sarid v. Speaker of the Knesset [2], 204).

4.         My colleague the President quoted the Speaker in his own words, in para. 11 of her opinion, the explanation the Speaker offered for his refusal to put the election of a Speaker of the 23^rd Knesset on the agenda, and in greater detail, his position that the matter would frustrate the establishment of a unity Government. Sometimes, political coalition considerations in the election, appointment or removal of some Member of Knesset or another are legitimate, internal parliamentary considerations in which this Court will not intervene (the Movement for Fairness case, para. 7). That is not so in regard to the political consideration that moved the Speaker in this case – which is contingent upon the hope for the establishment of a unity Government. This consideration is not relevant (and speaking for myself, I had difficulty understanding the causal connection between the election of a Speaker and frustrating the possibility of establishing a unity Government). The Government is one thing, and the Knesset is another. One touches upon the other, but they remain separate branches. We shall return to fundamental principles – the Government draws its vitality from the Knesset, and not the reverse. All the more so, a Government that has not yet formed cannot control the Knesset and order it to “cool its engines” until it is formed, if at all.

5.         At this point, we arrive at the fear expressed by the Knesset Legal Advisor of electing a “contrarian” Speaker, if it should transpire that his faction will be part of the opposition. But we have already learned that between certain and perhaps, certain is preferred.[2] Opposite the fear that perhaps there may be a situation in the future of a “contrarian” Speaker, stands the certainty that the present situation, in which the majority is improperly prevented from exercising its parliamentary power.

6.         The Speaker’s argument, supported by the Likud faction, is that the authority to decide upon the Knesset’s agenda and the dates of its sessions stands at the core of the Speaker’s discretion, as a clearly internal parliamentary matter that this Court should not address (and compare HCJ 4064/95 Porat v. Speaker of the Knesset [1], 179).

            I am not of that opinion. The present petitions do not concern some “regular” decision that a party wishes to bring to put on the Knesset’s agenda (on the Court’s refraining from ordering the Knesset to put certain legislative bills on its agenda, or refrain from doing so, see, for example: HCJ 1179/90 Ratz Faction v. MK Ovadia Ali [10]; and see the many examples in Rubinstein & Medina, 238 fn. 275 (6^th ed. 2005)).

            The present decision is of an entirely different type. We are concerned with a “royal” decision that concerns the election of the mover and shaker of the Knesset’s activity, who conducts the parliamentary orchestra with stateliness. This Court’s intervention is required in order to allow the parliamentary majority to realize its right to elect the Speaker. From here on, the Knesset institutions will act according to their wisdom, in accordance with the rules established in the normative fabric mentioned above (Basic Law: The Knesset, The Knesset Law, and the Knesset Rules of Procedure). Our judgment is not a form of intervention, and is not, Heaven forfend, a “takeover” of the Knesset’s agenda, but merely a buttressing of the status of the Knesset as an independent branch of government, separate from the Government, and a fortiori from an interim government over the course of three rounds of elections.

 

Justice U. Vogelman:

            Section 20(a) of Basic Law: The Knesset establishes that the Knesset shall elect a Speaker from among its members. A majority of the Members of Knesset request that the Knesset be convened to elect a Speaker. Section 2(b) of the Knesset Rules of Procedure establishes the latest date for the election of a Speaker – no later than the day on which the Knesset convenes for the purpose of establishing the Government. Is the Speaker of the Knesset permitted to exercise his authority to set the agenda of the of the Knesset, by virtue of sec. 25 of the Rules of Procedure, in a manner that would prevent proceedings for the election of the Speaker, due to his view that putting the matter on the agenda before the conclusion of attempts to form a unity Government would harm the efforts to achieve that goal? Do these circumstances constitute a cause for the intervention of this Court in the exercise of the Speaker’s authority to set the agenda of the Knesset plenum? These are the questions presented for our decision.

            I concur in the detailed opinion of my colleague President E. Hayut and her conclusions.

            The criterion for judicial review of decisions of the Speaker of the Knesset are well known. As has been held: “The authority to set the agenda of the Knesset and the dates of its sessions is given to the Speaker of the Knesset. This is clearly an ‘internal parliamentary’ matter. This Court does not exercise its authority in a matter such as this except in special cases in which there is a fear of harm to the fabric of democratic life” (HCJ 4044/95 Porat v. Speaker of the Knesset [1], 179).

            The authority to set the Knesset’s agenda allows for arranging “internal parliamentary” life, while addressing the quantity and substance of the subjects before the Knesset. This authority to arrange is not authority to ignore a request by a majority of the Members of Knesset to carry out a statutory procedure required by a Basic Law due to a conceptual or political view held by the acting Speaker. In a situation in which a majority of Knesset Members request to hold an election for the office of Speaker in the framework of sec. 20(a) of Basic Law: The Knesset, the election process should be permitted to proceed without delay, and it should not be frustrated by reason of the acting Speaker’s view that electing a Speaker will harm the attempt to form a unity Government. This all the more so in circumstances of an acting Speaker who holds office by virtue of a continuity provision (and who was also not elected by the 22^nd Knesset). The authority entrusted to the acting Speaker does not permit him to refrain from placing the matter of the election on the Knesset agenda, and the manner of exercising it in the said circumstances inflicts real harm to the fabric of democratic life by not permitting the majority of Knesset Members to carry out a procedure anchored in Basic Law: The Knesset, and that is required by the election of a new Knesset.

            In my opinion, as well, the intensity of this harm grounds a cause for an order absolute, as recommended by my colleague the President.

 

Deputy President H. Melcer:

1.         I concur in the opinion of my colleague the President, which – due to time constraints – constitutes “a little than can hold a lot” [Midrash Rabba 5]. Nevertheless, I would like to add a few comments, inasmuch as the petitions before us raise important, unique issues that have not been addressed previously in Israeli constitutional law.

            I will, therefore, focus, with the necessary brevity, upon the relevant principles of constitutional law and in comparative law, and by reference to a prior case that has implications for the matter before us.

            The Knesset, which is one of the three, classic branches (the legislature, the executive, and the judiciary), has properly had its status anchored in Basic Law: The Knesset, which was the first among the Basic Laws constituted by the Knesset (see: Amnon Rubinstein & Raanan Har-Zahav, Commentary on Basic Law: The Knesset (in the series Commentary on the Basic Laws, (Itzhak Zamir, ed., 1993), pp. 25-28 (hereinafter: Rubinstein & Har-Zahav) (Hebrew)).

            This is not the place for a survey of all of the functions of the Knesset and its powers, but it can be said, in general, that three primary roles were reserved to the Knesset:

1. Primary legislation.
2. Oversight of the functioning of the Government.
3. Its role as constituent assembly.

(see: Rubinstein & Har-Zahav, pp. 29-30).

3.         Since the dissolution of the 20^th Knesset and up to now, following the elections for the 23^rd Knesset – the Knesset has barely exercised its legislative authority (not to mention its role as constituent assembly), and in practice, what it was supposed to do was to oversee the functioning of the Government, which, since the dissolution of the 20^th Knesset, has become what is termed an “interim government”.

4.         The events that led to the petitions before us (and the petitions that preceded them and remain pending in HCJ 2109/20, 2135/20, and 2141/20) demonstrate the possibility of the Knesset being paralyzed, in practice, and unable to properly exercise even the said oversight authority.

            Such a state of affairs is unacceptable, inasmuch as when an “interim government” is serving, which suffers form a “democratic deficit” (inter alia, because a no-confidence motion cannot be brought against it), the oversight functions of the Knesset should intensify, if only by virtue of the general duty of confidence that the Government owes the Knesset by virtue of sec. 3 of Basic Law: The Government (see: Rivka Weill, Twilight Time: On the Authority of Caretaker Governments, 13 Mishpat UMemshal 167 (2010) (Hebrew) (hereinafter: Rivka Weill); Yigal Marzel, The Government’s Duty of Confidence to the Knesset, in Fiduciary Duties in Israeli Law (Ruth Plato Shinar & Joshua Segev, eds.) 135, 200-205 (2016) (Hebrew) (hereinafter: Yigal Marzel)).

5.         If every “interim government” suffers from “democratic deficit”, an “interim government” after elections suffers from the most severe deficit, inasmuch as the voters have had their say (see: Rivka Weill, p. 176). In such a case, the Knesset, which under sec.1 of Basic Law: The Knesset is the house of representatives of the state, should oversee the “interim government” more closely, and act in accordance with the will of the majority of its members, while respecting the rights of the minority.

6.         Therefore, the question before us is whether the acting Speaker, who holds his office only by virtue of the continuity principle under sec. 20 of Basic Law: The Knesset, is permitted – after the elections – not to put on the agenda a motion by 61 Members of Knesset to elect a new Speaker.

7.         The Speaker is of the opinion that the matter falls within the scope of his discretion to set the agenda for Knesset sessions, and he is allowed to refuse such requests of him by virtue of sec. 2(b) of the Knesset Rules of Procedure until such time as the Knesset convenes to establish a Government, as stated in sec. 13 of Basic Law: The Government (in the 22^nd Knesset, this period continued though the entire term). In this regard, he argues, as a reason for the delay, that the need to form a unity government might be harmed, in his view, if a Speaker were elected now.

8.         As opposed to this, the Petitioners are of the opinion that such conduct is undemocratic, hampers the Knesset’s activity that the Speaker is supposed to direct, particularly at this special time when urgent legislative and oversight actions are required in regard to the corona problem that has befallen us, and conjecture that the current Speaker is acting on the basis of personal considerations (the fear that he might not be reelected).

9.         It would seem to me that the attempt to frustrate the will of the majority of Knesset Members to bring about the election of the Speaker immediately does not meet the legal tests.

            This is correct in principle, as explained by my colleague the President in her opinion, and my other colleagues, and is particularly correct at present, when the Knesset is required to act energetically in its legislative and oversight roles, and the Speaker is the one who must navigate its activity. It also violates the tradition of a proper transfer of governance, when necessary.

            A comparative law examination also leads to this result, as I will immediately address.

10.       In Great Britain, on the eve of Brexit, the Prime Minister sought to prorogue Parliament (from Sept. 9, 2019 to Oct. 14, 2019) so that it would not prevent him from completing the separation process from the European Union that he wished to advance (which was meant to end on Oct. 31, 2019). He therefore turned to the Queen (who holds the authority to order such a suspension), and she agreed, on the basis of the representations of the Prime Minister.

            Various opponents of that suspension, among them Members of Parliament, filed petitions against the suspension to the Supreme Court of the United Kingdom. An expanded bench of the Supreme Court held, per President Lady Hale and Deputy President Lord Reed, that there was no authority to prorogue Parliament (beyond the recess periods, which do not halt all Parliamentary business) (see: R. v. The Prime Minister; Cherry v. Advocate General for Scotland [15] (hereinafter: R. v. Prime Minister). This affair is similar to our own (although not identical, inasmuch an Arrangements Committee was appointed, and other temporary committees are meant to be established), and the reasons given there are appropriate here, as well.

11.       In the United States, impeachment proceedings are held before the Senate, and by virtue of the American Constitution, the Chief Justice presides, rather than the Vice President who usually presides over the Senate. The main reason for this is the inherent conflict of interests of the Vice President in this regard, as he has a personal interest in the outcome of the proceedings (see: Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By, 5-13 (2012); and further see my opinion in HCJ 3132/15 Yesh Atid v. Prime Minister [11]).

12.       The Knesset Legal Advisor was of the opinion that the immediate election of a Speaker might lead to a “governance problem”. Past experience would seem to demonstrate otherwise, and the example that will be presented below actually encourages the independence of the Knesset and the required checks and balances.

            Once upon a time (and as we know, in constitutional law, past events – even if they were not presented for a decision by the Court—constitute persuasive precedents):

After the death of Speaker of the Knesset Yosef Sprinzak, in January 1959 (who served as Speaker since the establishment of the Knesset), the then ruling party (Mapai) sought to elect a member of that faction, Knesset Member Beryl Locker, to replace him. The leader of the opposition at the time, Member of Knesset Menachem Begin, together with his colleague Dr. Yohanan Bader, recommended that Member of Knesset Dr. Nahum Nir-Rafalkes of the Ahdut Ha’avoda party, who was an experienced and respected parliamentary jurist (and a member of the Mapai coalition) submit his candidacy for the office for the duration of the third Knesset, and he agreed. There was a contest, and in the end, the “Nir Coalition” won with the 53 votes of Herut, The General Zionists, Ahdut Ha’avoda, Mapam, The National Religious Party, and The Israeli Communist Party, while the Mapai candidate, MK Beryl Locker, received only 41 votes (The Progressive Party, which held seven seats, abstained).

Since then, the term “Nir Coalition” has become an idiom that describes a positive phenomenon in Israeli constitutional law, because that coalition proved that it was possible to nominate a candidate who was not acceptable to the ruling party, bring about his election, and advance the independence of the Knesset (see: Danny Koren & Boaz Shapira, Coalitions: Israeli Politics: 50 Years – 100 Events, pp. 37. 257-258 (1997) (Hebrew); Uri Yizhar, Between Vision and Power: The History of the Ahdut Ha’avoda-Poalei Zion Party, pp. 270-271 (2005) (Hebrew)).

13.       Moreover, on a different note, the reason expressed by the Speaker to justify his position is given (if at all) to the person assigned to form the Government (whose faction is among the Petitioners), and not to the Speaker in his role as Speaker.

14.       In view of all the above, intervention is required here, as it was in Great Britain in R. v. Prime Minister, for without it “the fabric of democratic life” and “the fundamental structure of our parliamentary regime” will be undermined, in the sense of the exceptions set forth in HCJ 652/81 Sarid v. Speaker [2].

15.       I can but conclude with the hope that the lessons will be learned, and that we will not have to address petitions of this sort in the future.

 

            It is therefore decided as stated in the opinion of the President to make an order absolute instructing that the Speaker of the Knesset must convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23^rd Knesset, and no later than Wednesday, March 25, 2020.

            Given this day, 27 Adar 5780 (March 23, 2020).

 

 

Supplementary Judgment

(March 24, 2020)

 

President E. Hayut:

Pursuant to our decision of March 22, 2020, we were today presented with an updated notice by Respondents 1-2.

As explained there, on March 23, 2020, the Knesset plenum decided upon the establishment of an Arrangements Committee. That committee convened and decided upon the establishment of a temporary Foreign Relations and Security Committee, as well as the establishment of a temporary Finance Committee, and a recommendation for establishing four additional, special committees was put before the Knesset plenum.

It was further explained that the Arrangements Committee held its first full session, using a communications and television system, and maintaining appropriate seating distance, and an opinion by the Knesset Legal Advisor on the subject of conducting debates and voting in the Knesset committees and the Knesset plenum during the period when the coronavirus restrictions are in place was appended.

            In view of the details in the updated notice, the hearing on the said subjects is no longer required, and the petitions in that regard are dismissed without an order for costs.

            Given this day, 28 Adar 5780 (March 24, 2020).

 

 

Judgment and Decision

(March 25, 2020)

 

President E. Hayut:

1.         In the partial judgment we issued on March 23, 2020, in five of the petitions in the heading, we decided to grant an order absolute instructing Respondent 1, the acting Speaker of the Knesset, to “convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23^rd Knesset, and no later than Wednesday, March 25, 2020”.

2.         Today – March 25, 2020 – at 11:00, at the beginning of the Knesset’s plenary session, Respondent 1 gave notice that he is resigning his position and adjourned the session. Pursuant to that move, the Knesset Legal Advisor notified us that he had informed Respondent 1 that under sec. 5(a)(2) of the Knesset Rules of Procedure, his tenure will end 48 hours after his letter of resignation was placed before the Knesset or submitted to the Knesset Secretary. The Knesset Legal Advisor further pointed out in his notice to the Speaker of the Knesset that “his resignation at this time does not affect his obligation to carry out the Court’s order …”, and that “the Speaker of the Knesset informed the Knesset Legal Advisor that he does not intend to put the matter of electing a permanent Speaker of the Knesset on the agenda of the Knesset plenum today”.

            By this conduct, the Speaker of the Knesset violated the order absolute as stated in the judgment.

3.         The Petitioner in HCJ 2145/20 filed a request under the Contempt of Court Ordinance, petitioning the enforcement of the partial judgment, and to grant every remedy as the Court shall see fit (hereinafter: the contempt request). The Petitioners in HCJ 2171/20 and HCJ 2169/20 joined that request, while the Petitioner in HCJ 2144/20 filed a new petition (HCJ 2252/20 – hereinafter: the new petition) for  declaratory relief establishing that in view of the conduct of the Speaker of the Knesset and his violation of the order, his tenure ended immediately, and that under the circumstances created, sec. 5(a)(2) of the Knesset Rules of Procedure doed not apply. The Court was further asked to declare that the veteran Member of Knesset be appointed as Speaker of the Knesset until the election of a permanent Speaker, and that the Knesset plenum convene today for the purpose of deliberating the election of a permanent Speaker. In the decisions given after the submission of the contempt request and the new petition, the parties to all the petitions were asked to submit their responses to these proceedings, and after collecting all the responses received (with the exception of the Likud faction, Respondent 4 in HCJ 2144/20, which chose no to respond), we called an urgent hearing of the contempt request and the new petition, which was held this evening at 8:00. All the Respondents presented themselves, with the exception of Respondent 1, who informed the Court by means of the Knesset Legal Advisor that he wishes to suffice with the written response he submitted, and with the exception of the Likud faction, whose attorney, Advocate Halevy, informed the Court that he received notice of the hearing in a telephone call at about 6:30, and in view of the timetable set, and in view of his location when he received the notice, he would be unable to attend the hearing. The Respondents in the new petition agreed to conduct the hearing as if an order nisi had been granted.

4.         Respect for the rule of law is the cornerstone of every democratic regime, and it is proven, inter alia, by obeying judicial decisions and orders. This duty to comply is imposed upon the entire population, and the organs of government are not exempt. On the contrary, those authorities have a far greater duty to obey judicial decisions and orders, and Israeli law, in the entirety or its arrangements in this regard, adopted the accepted approach of the Common Law that grants a presumption of regularity to the organs of government. The assumption grounding that presumption is that a judgment issued against the state will be carried out appropriately (Uri Aharonson, Non-Compliance with Decisions of the High Court of Justice as an Institutional Failure: A Proposal for Judicial Enforcement, 19 Mishpat UMemshal 1271, 1285 (2016) (Hebrew)). This Court addressed the dangers inherent to the non-compliance of governmental agencies with judicial orders, stating:

A state in which the state authority takes the law into its own hands – complying with a judicial order against it if it wishes to, and ignoring it if it does not – is one in which the seeds of anarchy and mayhem are being sown, and which is developing a dangerous culture of the rule of force and arbitrariness.  A state authority is a fiduciary of the public, and “has nothing of its own” (HCJ 142/70 Shapira v. Bar Association District Committee [12], at p. 331).  As such, it should serve as a beacon for respect of the law and the rule of law.  The eyes of the public are raised to the state authorities and public office holders.  Respect for the values of law, and development of a tradition of protection of the value of the rule of law are influenced by their conduct.  Disobedience of the law and non-compliance with judgments by a state authority involve a deep moral violation not only of the formal infrastructure of the foundations of the law and the regime, but also of the core of the tradition and the culture of proper government, that serve as an example of appropriate conduct of the individual in society (HCJ 4805/07 Center for Jewish Pluralism v. Ministry of Education [13], 602-603 [para.35]).

            While we have, indeed, known instances in which governmental authorities “dragged their feet” in carrying out court orders, as well as instances in which they did not comply with such orders due to claims of difficulty in their implementation or enforcement, or due to the need to make preparations. But until today, never in the history of the State has any governmental office openly and defiantly refused to carry out a judicial order while declaring that his conscience does not allow him to comply with the judgment. That is what Respondent 1, who is one of the symbols of government (even though he currently holds his office by virtue of the continuity rule, without being elected) chose to do, and the harm of his conduct to the public interest in preserving the rule of law and compliance with judgments and judicial orders is immeasurably severe. If that is how a person of authority behaves, why should a common citizen act differently? (see and compare: HCJ 4742/97 Meretz v. Minister of Religious Affairs [14], para. 6). This question resounds in its fullest force particularly in these difficult times in which we are contending with the coronavirus outbreak, when citizens are required to comply with the unprecedented orders and restrictions imposed upon them, inter alia, by virtue of emergency regulations.

5.         We cannot be reconciled to such a situation, and an unprecedented violation of the rule of law requires unprecedented remedies. In the course of today’s hearing, the Knesset Legal Advisor noted that the legislature and the drafters of the Knesset Rules of Procedure did not foresee a situation like the one created by the resignation of Respondent 1, especially in the absence of a deputy to act in his stead. He presented a possible path according to which the lacuna in this regard in sec. 20A(c) of Basic Law: The Knesset and in the Knesset Rules of Procedure could be filled by this Court’s exercising its authority under sec. 15 of Basic Law: The Judiciary, and ordering that in order to ensure compliance with the judgment of March 23, 2020, the most veteran Member of Knesset be granted limited, defined authority as follows:

(1)        To apply to the Arrangements Committee, by virtue of sec. 19 of the Knesset Rules of Procedure, for the purpose of convening the Knesset plenum tomorrow, Thursday, March 26, 2020, even though it is not a day that the plenum convenes under the Rules of Procedure;

(2)        To set the agenda for that session, by virtue of sec. 25 of the Knesset Rules of Procedure, and include the motion for the election of a permanent Speaker of the Knesset;

(3)       To preside over that session.

            All the parties to the hearing expressed their consent to the recommended path.

6.         The Knesset Legal Advisor further noted that in preparation for the hearing, he had spoken to Member of Knesset Amir Peretz, who is the most veteran Member of Knesset, who agreed to act in accordance with the said path as may be decided, and this was also confirmed by Advocate Segev, who represents the Labor-Meretz faction in HCJ 2171/20.

7.         Therefore, we hereby grant an order as stated in para. 5, above. To avoid any doubt, we would emphasize that this order shall remain in force even if Respondent 1 decides to withdraw his resignation.

            Given this day, 29 Adar 5780 (March 25, 2020).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

account of this initial irregularity, the refusal of the Minister to receive the opponents' representatives is cumulative to the original omission. As a result, the opponents were not able to be·heard at any stage of the proceedings. Had they been invited to appear before the commission and made such submissions as they chose, it is very possible that I would have found no fault with the Minister's refusal to enable them

. to repeat their pleas to him. He is under no duty to receive and hear personally everyone who applies. Here it seems to me that th legislature made  provision  for  the  question,  and  in  requiring  an  investigation by a commission, it prescribed the appropriate way for hearing the views of the public. The Minister's refusal gives cause for complaint, mainly because the commission did not discharge its task and did not serve as a channel for bringi g public opinion in all its aspects to the Minister's attention. In these circumstances the refusal (by the Minister) closed the only forum which still remained where the petitioners could voice their opposition to separation. I do not know what moved  the Minister  to  take this step. Particularly in view of his expression of annoyance at the intervention of the legal representative of one of the petitioners, it is sufficient for me to hold that the petitioners were here denied their elementary right to protect their interests properly.

Accordingly, I conclude by saying that in the circumstances of the case before us, it was not lawful to reject the petitioners' request to be received in interview by the Minister or another on his behalf. For this reason-and without expressing any view on the general questions which have been raised in this case-I agree that the rule should be made absolute.

 

Order nisi made absolute. Judgment given on October 30, 1958.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

52

 

 

HCJ 3914/92

 

Petitioners: 1. Leah Lev

                  2. Liron Lev, Minor

                  3. Ido Lev, Minor

                  4. Roi Lev, Minor

                                                                        v.

 

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

 

In the Supreme Court sitting as the High Court of Justice

[February 10, 1994]

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

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[53] HCJ 428/81 unreported

 

Labor Court cases cited:

 

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

 

United States cases cited:

 

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

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

 

 

 

 

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

 

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

Y. Sidi – on behalf of Respondent 3

 

JUDGMENT

 

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

 

The Facts

 

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

 

The Proceeding before the Rabbinical Court

 

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

 

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

 

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

 

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

 

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

 

 

The Parties' Arguments

 

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

 

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

 

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

 

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

 

The Normative Framework

 

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

 

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

 

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

 

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

 

Similarly, my colleague Justice D. Levin stated:

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

 

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

 

Inherent Jurisdiction and its Limits

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

My colleague, Justice S. Levin, wrote:

 

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

 

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

 

The Rabbinical Courts' Inherent Jurisdiction and its Limits

 

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

 

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

 

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

 

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

 

Justice Bejski stated in a similar spirit:

 

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

 

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

 

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

 

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

 

 

Ne Exeat Republica

 

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

 

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

 

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

 

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

 

Professor S. Goldstein similarly observed:

                       

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

 

                       

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

Ne Exeat Republica in the Rabbinical Court

 

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

 

From the General to the Particular

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Justice S. Levin: I concur.

 

Justice D. Levin: I concur.

 

Decided in accordance with the opinion of Deputy President Barak.

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

 

 

 

 

In the Supreme Court

Sitting as a Court of Administrative Appeals

 

AAA 3908/11

 

Before:                                    Her Honor, Justice (ret.) E. Arbel

                                                His Honor, Justice Y. Danziger

His Honor, Justice N. Hendel

His Honor, Justice E. Rubinstein

                                                His Honor, Justice S. Joubran

                                                Her Honor, Justice E. Hayut               

                                                His Honor, Justice U. Vogelman                                                         

                                                           

The Appellants:              1.      State of Israel, Courts Administration

   2.      Supervisor under Freedom of Information Law in the Courts Administration

 

v.

 

The Respondents:           1.      TheMarker – HaAretz Newspaper Ltd.

   2.      Hila Raz, Journalist, “TheMarker”

 

Appeal against the judgment of the Administrative Affairs Court in Jerusalem on April 14, 2011, in AP 43366-03-10 by Her Honor President M. Arad

 

Date of Session:                       Tevet 5, 5773 (December 18, 2012)

 

On behalf of the Appellants:   Adv. S. Rotshenkar

On behalf of the Respondents:            Adv. P. Moser

 

 

Judgment

 

Justice (Ret.) E. Arbel

The Administrative Affairs Court in Jerusalem (Hon. President M. Arad) ordered appellant no. 1, the Courts Administration, to hand over to the respondents, TheMarker newspaper and the journalist Hila Raz, for their scrutiny, information concerning the number of open cases being heard in the Supreme Court and in the district courts before every judge; and also the length of time that has elapsed since each case was opened. In every case, the name of the judge was to be mentioned. Before us is an appeal on this judgment.

Does the public’s right to information by virtue of the Freedom of Information Law, 5758-1998 (hereinafter: the “Law” or the “Freedom of Information Law”)­—by means of the newspaper TheMarker — also apply to the requested information that concerns open cases in the district courts and the Supreme Court, with the names of the judges hearing the cases being identified? This is the question upon which we must decide in this appeal.

 

Background

1.    On August 18^th 2009, respondent no. 2, journalist Hila Raz, submitted a request to appellant no. 2, the supervisor for the implementation of the Freedom of Information Law in the Courts Administration, to obtain information under that Law, as specified in a list that was submitted together with the request. The information was sought “in light of the supreme public importance with respect to the burden imposed upon the courts system.” A response to the request was sent by appellant no. 2 on December 14, 2009, noting that he had the information that was sought with respect to two of the items: “quantitative information about the number of open cases being heard by each district court judge in the country and the justices of the Supreme Court” as well as “information about the length of time that has elapsed since the opening of each of the principal open cases.” Despite this, on February 3, 2010 respondent no. 2 received a letter from Adv. Barak Lazar, professional advisor to appellant no. 1, which stated as follows:

 

The number of cases assigned to a judge does not constitute a measure of the case load. Court cases are differentiated from each other according to the type of matter (civil, criminal, administrative), the bench before which the proceedings are conducted (a bench of three or a single judge) and the complexity of the legal dispute. Therefore, presentation of the details of the number of cases assigned to each judge would provide a misleading representation, attesting to nothing, save the numerical assignment of anonymous cases to a judicial functionary.

The presentation of data that reflects a true index of burden requires the development of a tool for classification of cases which takes into account the time and the resources allocated to each and every case; the purpose of this is to create a basis for comparison.

In the past, an attempt involving extensive research was made to develop such a tool. Several flaws were discovered in this research, which prevent effective use of the tool that was developed. At the present time, we are making plans to conduct complementary research and to develop the said tool for assessing case-load, especially in view of the relevancy of that information for improving efficiency in the courts. Clearly such complementary research cannot be carried out in the time allocated to us for the purpose of responding to the request that has been submitted pursuant to the Freedom of Information Law.

This is also the case with respect to data concerning the length of a case’s lifetime. Production of such data requires an analysis of the database in the system, which is conducted by external factors and involves substantial costs.

Respondent no. 2 also referred to the half-yearly report and the Freedom of Information Report published by appellant no. 1; these are public reports that include quantitative information about pending cases, cases that have been closed and cases that were opened in Israeli courts, as well as data concerning the average lifetime of a case in the courts system. There is no dispute between the parties about the fact that the information included in these reports does not fully correspond to the information requested by respondent no. 2. After a further attempt of the respondents to obtain information from the appellants was not successful, an administrative petition was filed.

 

The Judgment of the Administrative Court

2.    The District Court granted the petition. First, the appellants’ argument that delivering the information would necessitate an unreasonable allocation of funds was rejected. The Court determined that the appellants possess the requested information, and that its delivery involves the production of a computer report and does not require the allocation of substantial resources. The Court noted that the respondents did not request anything beyond the specified information, and that they did not ask that it be processed for them. The Court therefore rejected the appellants’ argument that because the number of open cases does not reflect the judge’s case-load, complex research, requiring an unreasonable allocation of funds, would be necessary, in order to produce data that could serve as an index of overload.

The appellants’ argument that making the information available to the respondents was liable to disrupt the functioning of the Authority was also rejected. It was mentioned that this reservation to the obligation of disclosure applied, in accordance with the case law, only where there was near certainty of serious interference with the functioning of the Authority, and that the anticipated interference had to be “grave and serious” (AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority [2008] IsrSC 63(1) 284 (hereinafter:  Tax Authority), at p. 346).  However, the Court found that the argument that publication of the information would lead, with a high degree of certainty, to real interference with the functioning of the court system was not substantiated. The argument that the court system would have to provide complementary explanations with respect to an enormous number of cases for the information to serve as an index of the overload was also dismissed. It was made clear that public criticism that is liable to arise against the Authority as a result of publication of the information does not constitute the sort of “disruption” in the functioning of the Authority that would justify refusal to disclose the information. The Court was aware of the fact that the requested information could not serve as an index of the burden borne by the court or by judges, and of the fact that negligent reporting making use of this information would be baseless and misleading. However, it was decided that concealing information was not the way to deal with biased or unsubstantiated publications, and that judges could be presumed to perform their work faithfully even if a misleading article were to be published. It was also noted that it should not be assumed that the respondents, or any other body, would misuse the information, or that any publication would be issued without first receiving the reaction of the courts administration.

The argument that making information available was liable to harm public confidence in the judges and in the legal system was dismissed, and it was noted that precisely the opposite is true. The concern expressed by the appellants about harm to the efforts of the courts system to improve and become more efficient was dismissed as being too speculative.  The concern about increased complaints and requests to recuse judges, or about attempts at “forum shopping” after publication of the information, was also found to be baseless. It was therefore found that handing over the information would not disrupt the functioning of the Authority, and that, in any event,there is no near certainty of serious interference with its functioning which would justify non-disclosure of the information.

3.    The Court did not accept the appellants’ argument that the information about the stock of cases, segmented according to judge, falls within the category of “information about the content of a judicial proceeding” (sec. 2 of the Law), which was excluded from the application of the Law. It was decided that information about the number of cases being handled by a judge and the date on which they were opened is administrative information, and the provisions of the Interpretation Law (1981) should not be used in a manner that broadens the scope of information that is not to be  available to the public.

4.    The attempt of the appellants to base themselves on the legal situation pertaining in other countries, too, was unsuccessful, after the Court determined that it is unnecessary to resort to foreign law where the Israeli law was explicitly applied to the courts system; furthermore, it was held that the comparative law that was cited did not clearly support the appellants’ position.

5.    The Court clarified that its conclusion was applicable, both in relation to the Supreme Court and to the district courts. It ruled that in the framework of the information  handed over, it was possible to mark the year that the case was opened, but there was no requirement to provide such information for cases that had not yet been assigned to a judge, since the information that had been requested was “per judge”. As for the Supreme Court, in which cases are not immediately assigned to a justice upon being opened, it was pointed out that it is possible to publish the requested information with respect to cases that had been assigned to a judge or a panel, together with details of the date on which the case was so assigned, in order to ensure delivery of information that was as complete as possible.

The State is appealing the judgment of the Administrative Affairs Court.

6.    Before we review and discuss the pleadings of the parties, it should be mentioned that on July 12, 2011, this Court (Justice H. Melcer) order a stay of execution of the judgment of the Administrative Affairs Court. On December 19, 2011, this Court ([then] Justices A. Grunis and M. Naor, and Justice U. Vogelman) ordered a continuation of the hearing on the appeal before an expanded bench, by virtue of its authority under sec. 26(2) of the Courts Law [Consolidated Version] 5744-1984. On 18 December 2012 the pleadings of the parties were heard before the expanded panel.

 

Pleadings of the Appellants

7.    The appellants opened their pleadings with a clarification that in a letter of appellant no. 2 dated  December 14, 2009, he agreed to deliver the quantitative information that had been requested, but he expressed no intention of delivering the information together with exposure of the identities of the judges. Appellants contend that Adv. Laizer’s letter was sent only when it became clear that respondent no. 2 would not be satisfied with information that did not include the names of the judges.

8.    On the merits, the appellants’ opinion is that they are under no obligation to hand over the requested information, in accordance with sec. 9(b)(1) of the Freedom of Information Law, which deals with non-delivery of information whose disclosure is liable to disrupt the proper functioning of the public authority or its ability to carry out its duties. They argue that delivering personal information about the performance of the judges is liable to harm the principles on which the orderly functioning of the courts system relies—public confidence and judicial independence. This, they say, would nearly certainly interfere with the functioning of the system. The appellants explained at length what constitutes interference with the proper functioning of the system, which they claim is liable to ensue if the requested information is handed over.  They say that the requested data itself cannot create a complete and reliable picture that will attest to efficiency or overload, neither of the system as a whole, nor of the individual judge. Thus, for example, they explained that there are various features that impact significantly on the input and the time required to conduct proceedings, which are not reflected in the quantitative data that was requested.

9.    The appellants contend that a distinction must be made, in the context of the Freedom of Information Law, between institutional and personal information. In their view, the purpose of the Law is to create transparency with respect to the activities of the public authority, which bears systemic responsibility for the nature of the service that is provided for the citizen and for the employment of its workers; therefore, concretization of the requested information and its connection to a particular worker is not necessarily justified. It was further argued that connecting the requested information to a particular worker is liable to harm the worker’s reputation and to harm public confidence him, for it contains elements of imposing liability for the ills of the system on the worker. It was explained that the worker cannot protect his reputation in public. The appellants believe that it cannot be assumed that the worker’s functioning will be unaffected if he is publicly tried on the basis of purely quantifiable parameters which do not accurately reflect the quality of his work and its nature. It was also argued that impugning an individual in public on the basis of incomplete and misleading information will affect the ability of the public system to recruit the finest candidates into its ranks. In conclusion it was pointed out that delivery of personal information, particularly when it does not present a complete picture, involves greater potential for misuse of the information than a situation in which “systemic” information is handed over.

10.  The appellants believe that the above arguments hold even more so in relation to the judiciary, and for the purpose of maintaining public confidence in it and for its independent functioning. They claim that publication of personal statistical information that is misleading will lead to contempt for the judges, which may affect public confidence in them, as well as to the conduct of “kangaroo courts” which will harm the regular functioning of the judges. It was stressed that in order to fulfill the goals of the judicial system, there must be assurance that, despite the complexity of the arena in which the judge operates, his considerations will always be relevant and that his decisions will be of a high quality.

11.  In the appellants’ opinion, the balance between the principle of independence and public confidence. on the one hand, and the public interest in oversight of an authority that acts as a public trustee on the other, should be achieved in a manner that allows for effective oversight of the judicial system without causing the aforementioned potential harm.  In their pleadings, the appellants enumerated the various frameworks in which oversight of the legal system is possible. They also pointed to the presently existing mechanisms for maintaining the personal and professional independence of judges and their public standing. The appellants also refer to the position adopted by Professor Segal, according to which the appropriate solution is to publish the information without attaching the names of the judges (Ze’ev Segal, The Right to Know in Light of the Freedom of Information Law (2000), 143-144 [hereinafter: Segal]). It was further claimed that the issue of the appropriate balance between the interest of preserving judicial independence and the judges’ duty to report was discussed and decided by the legislator in the framework of the Ombudsman for Complaints against Judges Law, 2002 (hereinafter: Ombudsman’s Law). According to the Ombudsman’s Law, the work of the Ombudsman’s Office is protected by a statutory duty of confidentiality, and the reports that it publishes do not indicate the names of the judges against whom complaints have been lodged. The appellants argue that an analogy should be drawn from that arrangement to our matter.

According to the appellants, in the balance between the need to maintain the independence of the judiciary and public confidence therein and other important interests, to the extent that the matter is one of information that relates to the functioning of a worker in a personal manner, the stricter standard of near certainty should not be applied, and proving a “reasonable basis for concern” or “reasonable possibility of harm to justice”, should suffice, due to the sensitivity of the concrete information. In this context, reference was made to case law that established the standard of “reasonable possibility” for the purpose of balancing between freedom of information and the interest of ensuring that justice be done by the judiciary. They referred specifically to CrimA 126/62 Dissenchik & Hon v. Attorney General [1963] IsrSC 17 169 (hereinafter: Dissenchik), and to CrimA 696/81 Azulai v. State of Israel [1983] IsrSc 37(2) 565 (hereinafter: Azulai).

12.  The appellants explain that in order to amend the data with explanations, a very sizeable allocation of resources will be required of them. Moreover, they think that such information which is capable of explaining the statistical-technical data. “encroaches” on the area of judicial discretion in the conduct of cases—and such information was excluded from the application of the Freedom of Information Law.

13.  The appellants maintain that, considering that the information was sought for the sake of the public interest in pointing out the burden imposed upon the courts system, these goals of examining the information can still be achieved if the information is handed over to the respondents with the information segmented according to judge, without mentioning individual names. According to them, this is a good legal solution, compatible with the provisions of sec. 11 of the Freedom of Information Law.

 

Pleadings of the Respondents

14.  The respondents explained that publishing information about the activities of public authorities, including the judiciary, is part of their occupation in the area of communications and journalism; therefore, failure to hand over the information infringes upon their freedom of occupation. They stressed the public’s right to know about the judiciary, and explained that their goal was not to besmirch judges, and that prior to each publication, the response of appellant no. 1 would be sought.

15.  The respondents complained that their request was rejected in the letter of Adv. Laizer, who is not the authorized party for matters of freedom of information on the part of appellant no. 1; and this only a few months after appellant no. 2 notified them that the information would be delivered. They also pointed out that in the statements of pleadings, appellants claimed that producing the requested information involves an unreasonable allocation of resources, which is likely to disrupt the orderly functioning of the authority. However, when the Court ordered the appellants to submit an affidavit concerning the estimated cost of carrying out this task, it emerged that the computer program used by the appellants enables the data to be produced without any unreasonable allocation of resources. Despite this, the appellants performed an about-face and raised new arguments in support of their refusal to deliver information.

16.  The respondents contend that the information they are requesting is not information about the “content[s] of a judicial proceeding”, but rather, information about the administrative side of the legal system, which falls within the rule of disclosure under the Law. According to them, in order to fall within the exception to the delivery of information under sec. 9(b)(1) of the Law, the appellants would have had to prove that disclosure of the information would cause disruption in the functioning of the Authority, with a high degree of certainty, of real, severe harm. Such proof was not forthcoming. They object to the appellants’ argument that in matters concerning the judiciary, a lenient criterion of “reasonable possibility of harm” should be applied, and they stress that this was raised only in the appellants’ summations. Moreover, they are of the opinion that the case law on which the appellants sought to rely is based on the assumption that disclosure of the requested information involves harm to the pursuit of justice or the purity of the legal process, which was not the case here. They say that there is no place for the concern that the judge will not be able to withstand criticism relating to his performance, for exposure to such criticism is an intrinsic part of his judicial role. It was claimed that the judiciary acquires the confidence of the public, in part due to its transparency, and that, regardless, this confidence is liable to be harmed by the revelation of information about case overload. According to the respondents, the fact that the requested information cannot serve as an index of the burden borne by the court, or by a particular judge, cannot justify its being withheld.

The respondents are also of the opinion that the Ombudsman’s Law has no relevance for the matter at hand, and that the distinction the appellants wished to draw between systemic information and personal information has no statutory basis.

 

Deliberations

17.  The appeal before us is unlike other appeals under the Freedom of Information Law. If, until now, appeals under this Law dealt with the implementation of the Law on the part of other authorities, the present appeal is concerned with the implementation of the Law by the courts system, and we, who are an integral part of that system, are being asked to decide the matter, In doing so we are bound, as in every appeal under the Freedom of Information Law, by the provisions of the Law, which must provide the guidance for the path we take, joined by professional discretion, conscience, and the sense of justice. In making such a determination we are obliged, naturally, to be doubly and triply cautious, and it has often been said in the past by President Barak that “when we sit in judgment, we are being judged” (Aharon Barak, “Law and Judgment”, Selected Writings 1 (5760-2000); Aharon Barak, “Speech in the Supreme Court on his Retirement from the Bench”, Mishpatim 38 (1) 3, at pp. 10-11 (5768-2008) (hereinafter: Barak, “Retirement”).

18.  Let me state from the outset, in brief, that my conclusion, after having examined the pleadings of the parties and all the material relevant to the subject, is that respondents have a right to obtain the requested information, and that the appellants have not succeeded in showing that the interference with the activities of the courts as a result of the publication, as they claim, is a near certainty. I found that the information that was requested is in essence administrative information, to which the Freedom of Information Law applies; in other words, this is information to which the public has a right of access. In my view, the public interest in the information also emerges from the identity of the parties: on one end, the courts system, a public authority, whose influence on the lives of the individual and whose effect in shaping these lives is substantial, and knowledge of whose activity there is a clear public interest, whereas on the other end the fact that the information was sought by people from the media who are interested in the information for the purpose of fulfilling their journalistic function, and whose activity is extremely important in the realization of freedom of expression of the public and the fashioning of a civilized society. As stated, I did not find that the appellants could invoke the exception to the publication of information under sec. 9(b)(1) of the Freedom of Information Law, which deals with interference with the functioning of the authority. The activity of the courts is characterized by transparency that is not only systemic: it also involves personal transparency in relation to the judges trying the cases, which exposes them, even today, to harsh public criticism. This being the case, it is difficult to accept the argument that publication of the requested data will detract from the judicial independence of judges, to their functioning and to public confidence in them. As I will show, even if it is not possible to rule out the possibility of the consequences against which the appellants warn, such as harm to the esteem which judges have been accorded or misuse of the information, many of the arguments raised in this context are conjectural, focusing on cases of callous, litigious reporting, which is the exception rather than the rule. These arguments do not attribute the appropriate weight to the right of the public to know about the judiciary and the possibility that most of the reporting will be neutral, or at least fair. I found that appropriate weight must be attributed to the high standard of conduct that is expected of a judge, as well as to the fortitude required from a person selected to fulfill a judicial function and who is expected to rule according to the law, even when faced with enormous pressure. When one takes into account the transparency characterizing the activity of the courts, including in weighty cases that involve substantive matters, it is difficult to justify not according the same treatment to quantitative data concerning the activity of the system. I believe that transparency on this matter, too, will only strengthen confidence in the system. The position taken by the appellants seeks to create a different attitude to courts vis-à-vis other governmental authorities that were made subject to the Freedom of Information Law. I did not find—even given the distinctive nature of the judicial function—that any reasons were given that would warrant such a differentiation.

19.  The subject under discussion includes within its purview various rights and interests, some in concert, some in conflict. All of them are worthy of representation, while above them hovers the spirit of the Freedom of Information Law, the purpose of which is to “help promote social values, including equality, the rule of law, respect for human rights, and also to allow more efficient oversight of the public of the acts of the government” (Freedom of Information Bill, 5757-1997). In our matter, on the one hand stand the rights of the public to know and to obtain information about the modes of action of the public authority—and in this case, the courts—as well as the right of the public to oversee the governmental authorities; and on the other hand, the status, mode and orderly functioning of the courts and the judges. This interest is seemingly independent, but it incorporates weighty rights in our system such as the right to due process. The place of the value of human dignity, of the dignity of the judge and the right not to be put to shame and not to be denigrated should not be ignored, but neither should the dignity of the system, which is essential for ensuring its proper functioning. These are the topics that I shall discuss.

I will begin with the normative framework within which the discussion will be conducted – the Freedom of Information Law.

 

The Normative Framework – the Freedom of Information Law

20.  The Freedom of Information Law developed from the right to examine documents held by a public authority. In the evolution of the right to examine, Israeli law first recognized a private right of examination—the right of the individual to view the documents held by an administrative authority and which were used in the making of a decision which concerned him (HCJ 142/70 Shapira v. Jerusalem District Committee of the Israel Bar Association [1971] IsrSC 28(1)  325 (hereinafter: Shapira); HCJ 337/66 Estate of Kalman Fital v. Assessment Committee, Holon Municipality [1967] IsrSC 21(1) 69 (hereinafter: Fital), at p. 71; CA 6926/93 Israel Shipyards v. Israel Electric Corporation [1994] IsrSC  48(3) 749, at p. 796; AAA 8282/02; HaAretz Newspaper Ltd. v. State of Israel, Office of the State Comptroller [2003] IsrSC 58(1) 465 (hereinafter: HaAretz), at p. 469). This right, which is one of the foundations of the democratic regime, is derived from the right to be heard and from the duty of the public administration to act in a transparent fashion (LCA 291/99 D.N.D. Jerusalem Stone Supply v. V.A.T. Director [2004] IsrSC 58(4) 221 (hereinafter: Jerusalem Stone), at p. 232). Its source is in the case law, in that it is one of the principles of natural justice (Fital, at p. 72).

A significant development occurred in 1998, with the enactment of the Freedom of Information Law and recognition of the right of the individual to view documents held by the authority, even where there is no personal interest in the information, and subject to the exceptions prescribed by the Law (Segal, p. 11; Tax Authority; HaAretz, at p. 472; Explanatory Notes to the Bill). Our interest, therefore, is in the public right of inspection.

21.  The right of the individual to obtain information about the activities of the governmental authorities “is one of the cornerstones of a free society” (AAA 9135/03 Council for Higher Education v. HaAretz Newspaper [2006] IsrSC60(4) 217 (hereinafter: Council for Higher Education), at p. 233. See also Jerusalem Stone, at pp. 232-33); “The foundations of democratic culture” (sec. 15 of my opinion in AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority [Nevo – May 19, 2009] (hereinafter: Government Corporations). It is “a preliminary condition for the realization of other rights, and a basis upon which, in a democratic society, it is possible to build a culture of rights” (Aharon Barak, “Freedom of Information and the Court”, Kiryat Hamishpat 3 (5763-2003) 95, 97 (hereinafter: Barak, “Freedom of Information”). The right to obtain information is based on the conception of a governmental authority as a public trustee. As a public trustee, the administrative authority is held to a standard of detailed accountability to the public it represents, which will allow the public to understand how it has exercised its authority and the power that was placed in its hands, the range of its activities etc.

22.  The principle of freedom of information has several purposes, the realization of which must guide us when we address any petition or appeal dealing with freedom of information. First, the right to obtain information about public authorities is closely connected to freedom of expression and the public’s right to know. As is known, under the broad span of freedom of expression are to be found other freedoms that are essentially connected to it, derived from it, and vital to its realization. The broad protection enjoyed by the freedom of expression covers these as well and impacts the extent of their reach (HCJ 5771/93 Citrin v. Minister of Justice [1993] IsrSC 48(1) 661, at p. 673). Realization of the right to know involves the right to information: “There is no freedom of expression without the right to know, and there is no right to know without freedom of information” (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60 (hereinafter: Ministry of Transport), at p. 73). The purposes served by freedom of expression mandate recognition of a broad right to know, and therefore also of a broad right of access to information. The fact that freedom of expression underlies the right to information and is bound up with it led to its recognition as a constitutional right, even though it is not entrenched explicitly in Basic Law: Human Dignity and Liberty (AAA 11120/08 Movement for Freedom of Information v. State of Israel – Antitrust Authority [Nevo –  November 17, 2010] (hereinafter: Antitrust Authority), para. 9 and the references there).

The second purpose of the principle of freedom of information is the exercise of effective civilian review and oversight of the activities of governmental authorities. “The public eye is not only an expression of the right to know, but it is a reflection of the right of oversight” (HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353, at p. 361; see also AAA 10845/06 Keshet Broadcasting Co. v. Second Authority for Television and Radio [Nevo – November 11, 2008] (hereinafter: Keshet Broadcasting), para. 65); Segal, at p. 102). The accessibility of information is a condition of the ability of the public to oversee the governmental authorities, to form an informed view of their activity, “to demonstrate involvement in governmental activity and to take part in the formation and fashioning of appropriate governmental culture . . .“ (Government Corporations, at para. 15). It makes possible the realization of political and civil rights and is an important component in the fostering of active, involved citizenship. The flip side of the coin is that transparency of the activity of the authority ensures an important contribution to “public hygiene”, as described by Justice Hayut in Council for Higher Education, at p. 231, for improving the quality of governmental decisions and its activities.

A third purpose of the right to information is ensuring public confidence in public authorities. The knowledge that the authority is subject to oversight, which can be exercised by any individual, contributes to the confidence in the governmental authorities (Antitrust Authority; Segal, at p. 101.) As I mentioned in the past, without public confidence in the system, democratic society cannot exist (HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister [2007] IsrSC 62(3) 445, at p. 493).

The fourth purpose of the right to information is proprietary. In its capacity as a body serving as a trustee for the public, the public authority holds information in trust for the public. The public is the owner of the information, and the authority cannot act in respect of this information as if it were the owner of property belonging to it. The importance of this goal is highlighted in the commentary to the Bill, whereby “… in fact, it would appear that it is difficult to uproot the proclivity of the authorities for regarding information as their property and not property that is held in trust by them for the public and on its behalf” (See Freedom of Information Bill). Accordingly, every one of the individuals constituting the public has the right to obtain information from the authority, even if he has no direct, personal interest in that information, when there are no good reasons for withholding it (HCJ 2283/07 Legal Forum for Israel v. Judicial Selection Committee under Section 4 of Basic Law: The Judiciary [Nevo – May 5, 2008], per Justice Hayut, para. 5;  HaAretz, at p. 471; AAA 7744/10 National Insurance Institute v. Adv. Yafit Mangel [Nevo – November 15, 2012] (hereinafter: National Insurance Institute), per Justice Hendel, para. 5).

23.  I would point out that the hierarchy amongst the various purposes of the right to information is in dispute. There are those who viewed the protection of freedom of expression as the main purpose that the Law is designed to realize (Ministry of Transport, at pp. 72-73); some saw it in the value of transparency and the ability to maintain oversight of governmental activity (Government Corporations, at para. 37; Tax Authority, per my opinion, para. 56). As I pointed out in Antitrust Authority, I do not think that any one of these purposes should outrank any other. The different purposes are all foundational to the Law. To a great extent, they are bound up with and affect one another. In the circumstances of a particular case, one of these purposes will be the focus of the discussion, and at times, the discussion will touch upon several of them. One way or another, I believe that “…rather than examining the centrality of any particular purpose that lies at the basis of the Law and examining the request for information in its light, one must examine which of the purposes underlie the concrete request and examine their combined weight” (para. 9).

24.  A person’s entitlement to information held by a public authority arises if he succeeds in passing through the three filters on which the Law is based, as Justice Cheshin put it (HaAretz, at pp. 472-472).

The first filter is to be found in sec. 1 of the Law, which sets the parameters of the broad, principled range of the right to information:

Every Israeli citizen or resident has the right to obtain information from a public authority in accordance with the provisions of this Law.

The second filter prescribes exceptions to the right to information (secs. 8 – 9 of the Law), which define the cases in which information will not be delivered by the public authority or in which it is not obliged to deliver information, due to the existence of other, potentially conflicting interests and rights. Like all rights, the right to information is not absolute, but rather is relative. At times, it yields to other rights that merit protection, such as the right to privacy and to reputation, or to weighty interests, such as state security or foreign relations. In sec. 8, the Law enumerates a list of cases in which the public authority has discretion as to whether to grant the request for information. One can generalize and say that these cases are concerned with “administrative efficiency and practical constraints” (HCJ 2398/08 State of Israel – Ministry of Justice v. Segal [Nevo – June 19, 2011] (hereinafter: Segal), per (then) Justice Naor, para. 26); Eliezer Shraga & Barak Shahar, Administrative Law – Basic Principles vol. 1 (2009), 357), in view of which the authority is authorized to dismiss the request for information. The Law also provides a list of exceptions to delivery of information (sec. 9), distinguishing between cases in which information is not to be delivered, such as a case of concern of harm to national security or foreign relations (sec. 9(a)(1)-(2) of the Law) or harm to a person’s privacy (sec. 9(a)(3) of the Law), and cases in which the authority is granted discretion as to whether to hand over the information (sec. 9(b) of the Law). These exceptions express various points of balance between the right to information and other rights and interests, and place broad discretion in the hands of the public authority. The main consideration that the public authority must weigh in its decision is that of the public interest in disclosure of the information (Segal, at p. 199).

The third filter (sec. 17 of the Law) grants the court authority to order the disclosure of information contrary to the position of the public authority (and see also HaAretz, at pp. 472-473).

To these three filters are adjoined the provisions of the Law that limit the realization of the right to information:  inter alia, sec. 10, which deals with the considerations of the public authority; sec. 11, dealing with the possibility of delivering partial information or with conditions attached; sec. 13 which deals with protection of third parties; and sec. 14 of the Law, which contains a list of bodies that are not subject to the Law.

25.  This is the normative framework of the deliberation. Before we examine the arguments of the parties, I will discuss the issues that define the dispute before us. First, I will consider the nature of the judicial function and the principle of judicial independence which lies at its core. Juxtaposed to this I will present the mechanisms of supervision to which governing judges are subject, which are of importance in the present matter due to the fact that the purpose of the present petition is to increase the transparency of the activity of the courts. I will then proceed to examine the arguments that were raised by the parties in order to ground their contention that handing over the requested information will cause disruption with the proper functioning of the courts system, and that they may therefore invoke the exception to the delivery of information specified in sec. 9(b)(1) of the Freedom of Information Law; I will then decide on these arguments.

On Judging and the Image of the Judge

26.  Judging is a calling.  It is not like other occupations. It is not a trade. To choose a judicial career is to choose a destiny, a way of life. The task that befalls a judge—to decide disputes and to adapt the law to the changing exigencies of life, to preserve and protect the rule of law, human rights and all other values of Israel as a Jewish and democratic state (Aharon Barak, “On My Role as a Judge” Mishpat Umimshal  7 (5764-2004) 33; Tova Strasberg-Cohen and Moran Svorai, “Justice Bach – The Image of a Judge” Gabriel Bach Volume  (2011) 731, 740 (hereinafter: Strasberg-Cohen & Svorai, Bach Volume)) — is a weighty one. The authority and the power vested in the judge’s hands have the capacity to affect—sometimes very profoundly—the life of the individual and his rights; they can have a significant impact on shaping the face of society. Vice-President M. Cheshin and (then) Justice E. Rivlin described the distinctive nature of the vocation of the judge as follows:

The judicial profession is no ordinary profession: it is a profession that is one of a kind; a profession of destiny that imposes upon the judge, almost of itself, special tasks and norms of behavior. The judge has a heavy—extremely heavy—burden placed on his shoulders: to judge and to decide the law. A person’s fate is entrusted to his hands—not only metaphorically — his liberty, his money, and his rights. This requires the judge to act with integrity, discretion, moderation, caution, and precision, and to continually ensure that he does not deprive the litigants before him of their rights (DC 2461/05 Minister of Justice v. Judge Cohen [2005] IsrSC 60(1) 457 (hereinafter: Judge Cohen), at p. 461).

The special nature of judging characterizes those who have chosen this profession and were chosen for it. A person who merited donning the judicial robes is obligated to justify, in all aspects of his life, in his conduct both in the court and outside of it, the trust that has been placed in him. The highest personal, professional, moral, and ethical standard is demanded of him (Tova Strasberg-Cohen, “The Image of the Judge” Parliament, 72, available at the website of the Israeli Democracy Institute, www.idi.org.il, hereinafter: Strasberg-Cohen, Parliament). He is required to encapsulate in his personality a blend of personal attributes, professional sills, responsibility, wisdom and discretion that will guide him, as a kind of inner compass:

From the special nature of the judicial system—with which the judge is occupied in making fateful decisions, in the criminal law and in preserving the rule of law, human rights and democratic values—is derived the requirement that he requires a special personality, special characteristics, and a special nature to qualify him for his position. Principal amongst the required qualities are: personal honesty, integrity, moral rectitude, clean hands, professionalism, independence of thought, objectivity, and neutrality. In addition to these qualities, the judge must—when sitting in judgment—be attentive, sensitive, tolerant, and patient. He must hold the reins of the judicial process and conduct the trial fairly and efficiently. He must display a judicial temperament even though the process—by its very nature—is fraught with tension and pressure. (Ibid)

And as the prophet said:

He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God (Micah 6:8).

The judge is a symbol of values, conscience, and morality. In his conduct, and in all that he does, he must constitute a shining example for the public in his respect for the law, in his meticulous adherence to it, and in his exemplary, respectful, and respecting personal conduct.

A preliminary, essential condition of the judge’s ability to serve in that capacity is the confidence of the public, which recognizes his authority to judge and will accept his decisions as binding. Not only is the matter of the individual judge at issue before us, but also public confidence in the system as a whole (and see Judge Cohen, at p. 461).

Judicial Independence

27.  The judiciary is one of the three branches of government on which the democratic regime is founded. The alignment of the relations between the judiciary, the legislature and the executive is based on a balance between the authority of these branches in a way that allows for autonomy on the one hand, and mutual oversight on the other—the existence of separate governmental authorities that amongst themselves maintain mutual relations of “checks and balances”:

One principal is that of the separation of powers: the legislature will legislate, the executive branch (the government) will execute and the judiciary will sit in judgment.  The combination of words “separation of powers” does not indicate the full content of the expression. The essence of this principle does not lie in the “separation of powers”, i.e. the separation between the branches for the sake of separation, but in the decentralization of power and authority between different and separate branches. The essence lies in the legislature engaging solely in legislative acts and not in executive ones, the executive solely in executive acts and not in legislative and judicial ones and the judiciary engaging solely in judicial acts and not in legislative and executive ones.” ((then) Justice M. Cheshin, HCJ 6971/98 Paritzky v. Government of Israel [1999] IsrSC 53(1) 763, at p. 790).

The principle of checks and balances between the governmental branches requires, therefore, that there be an independent judiciary, which is not susceptible to any inappropriate influence, either on the part of the other governmental braches or on the part of any interested party.

28.  Judicial independence is one of the basic values of the democratic system, and its existence is essential for the realization of all the other values of the system. It is one of the judge’s most important assets in fulfilling the weighty tasks laid upon his shoulders. It is the crux of judging, “the heart and soul of the judicial enterprise” (Tova Strasberg-Cohen, “Judicial Independence and the Supervision of Judges’ Conduct: Reflections on the Purposes of the Ombudsman for Complaints against Judges Law, 2002”, Mishpat Ve’Asakim 3 (5765-2005), hereinafter: Strasberg-Cohen, Mishpat Ve’Asakim), and it constitutes the basis and the condition for realization of the right to due process. At the core of judicial independence are to be found objectivity and neutrality, which are the first principles of judging (Strasberg-Cohen & Svorai, Bach Volume, at p. 737; Meir Shamgar, “Independence of the Judicial System as a Fundamental Element of Democratic Order” Hapraklit 42 (5755-1995), 245, 249 – hereinafter: Shamgar). The meaning of this is that the judge decides the case according to the law, with freedom of thought and conscience, without fear and without bias, acting in accordance with the law and with professional discretion and a sense of justice and conscience, with no pressure nor incentive applied to him (Strasberg-Cohen, Mishpat Ve’asakim, at p. 335; Aharon Barak, The Judge in a Democratic Society (2004), 124 – hereinafter: Barak, The Judge in a Democratic Society; Tova Strasberg-Cohen, “The Tension between Judicial Independence and Accountability”, Berenzon Volume (5767-2007) 127, 129 – hereinafter: Strasberg-Cohen, Berenzon Volume).

29.  Judicial independence ensures the pertinence and the quality of the judicial decision. It is mandated by, and warranted in view of, the powers that are placed in the hands of the judge—powers which may decide fates and change the courses of lives. Its importance, however, is not exhausted at the level of the individual litigant; significantly, for the public at large, this independence ensures equality before the law to all who cross the threshold of the court, as well as enabling the judge to fulfill his role in protecting human rights and the rule of law (see also: Strasberg-Cohen, Berenzon Volume, at p. 130; Eli Salzberger, “Temporary Appointments and Judicial Independence: Theoretical Thoughts and Empirical Findings from the Supreme Court of Israel”, Mehkherei Mishpat  19 (5763-2003) 541, 543; Michal Agmon-Gonen, “Judicial Autonomy? The Threat from Within”, HaMishpat 10 (5765-2005) 213, 216 (hereinafter: Agmon-Gonen)). In other words, more than protecting the judge, judicial independence protects the public whom he judges.

30.  There are two facets to judicial independence. The first facet is the personal independence of the judge who hears the case. Personal judicial independence is secured within two concentric circles. In the inner circle is to be found the personal substantive independence of the judge, i.e., the liberty granted to the judge to decide the law according to his best professional understanding and conscience, with no dependence on any external factor, in order to ensure neutrality and objectivity in the conduct of the case and the decisions made therein. Personal independence of the judge is prescribed in sec. 2 of Basic Law: The Judiciary, the heading of which is “Independence”: “A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law” (and see sec. 5 of the Code of Ethics for Judges, 5767-2007, and in particular, sec. 5(c) of the Code, which states that “The judge shall fear no one, and shall not be influenced, in the fulfilling his role, by public opinion, concern about criticism or desire to please”). Of course, the decisions of a judge are subject to appellate review, but this is an integral, fundamental part of the judicial enterprise, which does not negate or erode the fact that at the time when the judge makes his decision in a case, he does so according to his conscience and his best judgment; hence the activity of the appeals court cannot constitute harm to his judicial independence (Shlomo Levin, “Judicial Autonomy – An Inside Look”, Iyunei Mishpat  29 (2005) 5, 11 (hereinafter: Levin)).

The autonomy of the judge is not intended to be confined to relations with the legislature and the executive; rather, it extends to fulfillment of the judicial role with administrative independence vis-à-vis every internal factor in the judicial system (Shamgar, at p. 254; Levin; Barak, The Judge in Democratic Society, at p. 125).

31.                                                                                           In the outer circle of personal independence are the rules that seek to prevent inappropriate interventions in the function of the judge that affect his substantive independence. These are rules which seek to ensure for the judge a professional working environment free from pressures and concerns regarding potential personal consequences stemming from a particular ruling (Shamgar, at p. 248; Shimon Shetreet, “Culture of Judicial Independence in Israel: Institutional and Substantive Aspects of the Justice System in a Historical Perspectives”, Law and Business 10 (5769-2009) 525, 529-533 (hereinafter: Shetreet)).  We will mention in particular those rules that set out the modes of appointment and conditions of office of the judge (Basic Law: The Judiciary, secs. 4, 7  and 10); the rules concerning the personal immunity of the judge in torts for an act done in the capacity of his judicial role (sec. 8 of the Civil Wrongs Ordinance [New Version], 5728-1968; LCA 6830/00 Bernowitz v. Te’umim [2003] IsrSC 57(5) 691, at p. 702; and rules about taking testimony from judges (LCA 3202/03 State of Israel v. Yosef [2004] IsrSC 58(3) 541).

32.  For the sake of completeness I will mention that the second aspect of judicial independence is institutional independence, i.e., the administrative and organizational independence of the judiciary. Institutional independence is closely connected to personal judicial independence. The latter draws sustenance from the former, without which it would not be possible to ensure, fully, the personal independence of judges. The issue of institutional independence is not the focus of our discussion, and I will therefore say no more on the subject (for elaboration of the subject see: Aharon Barak, “Judicial Independence – How?” Mivhar Ketavim 1 (5760-2000); Barak,  Judge in a Democratic Society, at pp. 125-127).

33.  To sum up this point: in matters of judging, the judge is not subject to the authority of any other person, or any governmental authority, or any office, or to the power of money. He is subject only to the authority of the law. Judicial independence is a precondition—and there is none more vital —for allowing the judiciary to fulfill its role in protecting the rule of law and ensuring the orderly functioning of the other branches, as well as its role in protecting human rights and the basic values of society, and most of all, in doing justice. It comes to ensure that the judge can fulfill his function with professionalism and without bias, in that it constitutes a barrier against abuse of authority or deviation from the bounds of competence by other governmental authorities (Shamgar, at p. 254), or against attempts by those with an interest and power to influence the proceedings. Judicial independence is fundamental in ensuring due judicial process. It is the basis for securing the confidence of the public in the legal system, that “judging is executed fairly, neutrally, with equal treatment of litigants and without even a smidgeon of personal interest in the outcome” (HCJ 732/84 MK Yair Tzaban v. Minister for Religious Affairs [1986] IsrSC 40(4) 141 (hereinafter:  Tzaban), at p. 148). As such, it is one of the basic values of democracy: there is no properly-functioning regime where the public has no confidence in the fact that the judiciary resolves disputes that come before it on the merits, objectively, and independently. Without public confidence in the characterization of the judicial system as described, society has no effective mechanism for deciding disputes and for the conduct of life in a cooperative, organized, and orderly framework. Public confidence and the independence of the judiciary operate reciprocally: judicial independence provides the basis for public confidence in the judiciary, whereas public confidence strengthens judicial independence and is the source of its power (Strasberg-Cohen, Berinson Volume, p. 131).

Oversight and Supervision of Judges – the Principle of Accountability

34.  “Our system relies on unreserved trust in judges, in their integrity, their morality, their humanity, and their values” (HCJ 188/96 Tzirinsky v. Vice President of Hadera Magistrates Court [1998] IsrSC52(3) 721 (hereinafter: Tzirinsky) , at p. 743; and see Barak, The Judge in a Democratic Society, at p. 50). At the same time, even given the judicial independence enjoyed by the judges and the courts system, they are not immune from supervision, nor are they exempt from it.

35.  Judges are not like the other functionaries in the public service. The nature of their task, its particular characteristics, as mentioned above, and inherent duties, as well as responsibility for the high standard of conduct to which the judge is held, both inside and outside the courtroom, are different from those pertaining to other public servants. The role of the judge is characterized by norms that he sets forth in his decisions, within the framework provided by the law, to which the influence and application are not limited to the litigants in the particular case before him, but rather, reach the entire public. All these create a substantive, significant difference between judges and other public servants (in this context, cf: Daphna Avnieli, “Who Will Judge the Judges and How?” Hapraklit 47 (5764-2004) 77, 95; Strasberg-Cohen, Mishpat Ve’asakim, at 337; Agmon-Gonen, at p. 230). However, precisely because of these characteristics of the judicial function, judges are subject to the duties that apply to other public functionaries as public trustees (see also the Preface to Code of Ethics for Judges; Tova Strasberg-Cohen and Moran Svorai, “Mechanisms for Supervision of the Judiciary” HaMishpat 24 (2007), 47 (hereinafter: Strasberg-Cohen and Svorai, HaMishpat)). The concept of trusteeship leads to a requirement of transparency that applies to all public authorities. Transparency, which I shall discuss presently, also involves supervision:

The indispensability of supervision is derived from the requirement of transparency that stems from a conception of the public authority and its workers as trustees on behalf of the public. About this is has been said: “The public authorities are trustees of the public. They have nothing on their own, and everything that they do have, they have for the public (HCJ 1635/90 Zarzewski v. Prime Minister [1991] IsrSC 45(1) 749, at p. 839). Even despite the fact that due to these special characteristics of the judicial task, judges should not be regarded as public servants in the narrow sense, the duties that apply to public servants as public trustees should be applied to them, mutatis mutandis (Strasberg-Cohen, Berinson Volume, at p. 132).

The Judge’s being subject to supervision stems, therefore, from the transparency that is necessitated by the activity of the courts as a public body, but it also expresses acknowledgment of the fact that the judge is a human being, and like every human being, “there may be failings and defects in his behavior and his conduct” (Strasberg-Cohen, Berinson Volume, ibid.). The fact that the judge is subject to supervision and oversight of his conduct and behavior in the framework of fulfillment of his judicial role—this is the “Principle of Accountability”.

Thus, “… supervision is desirable. Like every governmental authority, we too must be subject to supervision; just as there is no authority that is higher than the law, so too is there no authority which is beyond supervision” (Aharon Barak “Supervision of the Judiciary”, Mivhar Ketavim (2000) 961). The fact that judges are subject to supervision contributes to the public confidence in the courts, to the propriety of legal process, to the quality of the decisions that are made, and to the quality of the functioning of the legal system as a whole.

36.  What is the nature and the extent of the supervision of judges? How does it comport with judicial independence and the principle of accountability?

Normally, three fundamental approaches are cited for balancing the natural tension existing between the principle of judicial independence and the principle of accountability (Strasberg-Cohen, Berinson Volume, p. 134-135). The first approach holds that judicial independence must be absolute, with absolutely no interference from an outside body. The proponents of this approach believe that the legal system itself must handle claims about the conduct and the behavior of judges, including with regard to matters of the administration of justice, and that action by external review mechanisms should not be permitted. There are also those who claim that judes’ accountability to the public for their actions is only indirect and passive, and is exhausted by the publication of judicial decisions and the written reasons judges provide for these decisions (Haim H. Cohn, “Heretical Thoughts on Public Confidence”, Shamgar Volume 2 (5763-2003) 365, 381 (hereinafter: Cohn)). This approach is inconsistent with the predominant approach today whereby no public authority is above external supervision.

The second approach is that the judge, like every public servant, must be subject to supervision. This approach assigns no real weight to the substance and the goals of the principle of judicial independence or to the special nature of the role of the judge vis-à-vis public servants. This approach, too, expresses an extreme position and does not attribute proper weight to the interests that are relevant to the matter.

The third approach, accepted today both in Israel and the world over, is a combined approach, which grants weight to both principles and strikes a balance between them (Strasberg-Cohen and Svorai, HaMishpat, at pp. 47-48). This approach contends, inter alia, that the principle of judicial independence is a means for protecting democracy, the rule of law, and human rights, and insofar as it does not serve these purposes, it should be limited (Strasberg-Cohen, Mishpat Ve’Asakim, at pp. 339-340).

Existing Mechanisms for Supervision of Judges and Courts

37.  Supervision of judges in Israel occurs within formal, institutionalized frameworks, into which the preservation of judicial independence and the balance between that independence and the need for supervision are built. However, this supervision also occurs informally, sometimes raising questions as to the appropriate manner to enable supervision while still preserving the judicial system and its independence.  As will be explained, the existing mechanisms of supervision extend to all areas of activity of the courts.

a.    Supervision Mechanisms Built into the Judicial Process

38.  Review is the backbone of the judicial process. This process, and the rules by which it is conducted, are based on the conception that the conduct of a process and the rendering of a decision in that process are subject to review. The principal mechanism of review of a judge’s decision is the appeals process. The review that is embodied in the appeals process may also relate to: the conduct of the judge in the process; to his attitude to the litigants, their attorneys and the witnesses; to the manner in which he conducted the hearings; to the manner in which he expressed himself; to delays in issuing the judgment and more (Daphna Avnieli, “Who Will Control the Judges - and How?” Mishpat Umimshal 9 (5766-2006) 387, 391 (hereinafter: Avnieli, “Control of Judges”).

39.  Another means of review is the principle of transparency, which constitutes an integral part of the judicial process and of the activity of the court; its main manifestation is in the principle of publicity of proceedings. This principle is one of the foundations of the democratic regime, and has acquired constitutional status in our legal system (HCJ 5917/97 Association for Civil Rights in Israel v. Minister of Justice [Nevo –October 8, 2009] (hereinafter: Association for Civil Rights), para. 17). Its meaning is that as a rule, a trial will be held publicly, will be transparent, and will be open to the public (sec. 3 of Basic Law: The Judiciary. See also sec. 68(a) of the Courts Law [Consolidated Version] 5744-1984 (hereinafter: the Courts Law)). The limitations clause listing matters in which the legislator permitted the courts not to hear a case in open court was interpreted in the case law as exclusive and narrow, in order to ensure that the principle of publicity is strictly maintained  (CA 5185/93 Attorney-General v. Marom [1995] IsrSC 49(1) 318, at p. 341).

The publicity of court proceedings is intended to ensure that the activity of the courts will be transparent and open to the public, and that the public will be able to observe how the system works, and also to criticize the system (HCJ 258/07 MK Zahava Galon v. Government Commission of Investigation for Examining the Events of the 2006 War in Lebanon [2007] IsrSC 62(1) 648, at pp. 664-665, 676-677). Indeed, “proper government acts in daylight, in the open, and thus exposes itself to perpetual criticism …” ((then) Justice M. Cheshin, LCrimA 112/93 State of Israel v. Klein [1994] IsrSC 48(3) 485, at p. 516). The public nature of hearings is an essential condition for the proper functioning of the courts. It is “… one of the main guarantees of the regularity of the legal process, both in terms of doing justice and uncovering the truth, in practice, and in terms of the appearance of justice …” (CrimA 353/88 Vilner v. State of Israel [1991] IsrSC 45(2) 444, at p. 450).

40.  There are three main rationales for the principle of the publicity of proceedings (CrA 11793/05 The Israeli News Company v. State of Israel  [Nevo – April 5, 2006] (hereinafter: Israeli News Company), para. 13-15; LCA 3614/97 Avi-Isaac v. Israel News Corporation [1998] IsrSC 53(1) 26 (hereinafter: Avi-Isaac), at pp. 45-46).

The first rationale is that the public’s right to know about the activity of governmental authorities is part of freedom of expression and freedom of the press (LCA 3007/02 Yitzhak v. Moses [2002] IsrSC 56(6) 592, at p. 598). The guarantee that the publicity of the proceedings provides for the transparency of court proceedings, as well as to the supervision and oversight of the courts and their activities was discussed by (then) Justice M. Cheshin stating:

The overarching principle, whose wings span the whole issue of publicity, is the principle of publicity of the proceedings in court. In the days of old, the elders sat in judgment in the gates of the city. Similar to the ancient gates, are the courts in our times, whose doors are wide open to those who wish to enter therein. The conduct of a trial, of any trial—other than the exceptions—occurs in public, and the publication of what has been done and what has been heard in the courtroom is simply a by-product of that publicity. Subject to considerations of physical room capacity, everyone is entitled to be present at courtroom hearings, and publication of what occurred in the courtroom extends the courtroom, as it were, to those not physically present. The public nature of the legal proceeding—which itself provides publicity—fulfills an exalted need in the system of open government and law. Publicity means—in practice—the transparency of proceedings in the court, and transparency ensures ongoing review of what occurs in the courtrooms. Transparency and supervision—those are the essential terms (CrM 5759/04 Turjeman v. State of Israel [2004] IsrSC 58(6) 658, at p. 662).

A second rationale for the principle of the publicity of legal proceedings is its contribution to improving the quality of the judicial decision (Avi-Isaac, at p. 46). “The exposure of legal proceedings to the public eye serves as a guarantee for the existence of public oversight of the courts, and to ensure the conduct of a fair trial and absence of bias” (Report of the Committee for Examining the Opening of Courts in Israel to Electronic Media, p. 14 (2004)).

The third rationale relates to public confidence in the public authorities in general, and in the courts in particular. The public nature of proceedings prevents the impression that law is conducted secretly, and that extraneous considerations are exercised (CA 152/51 Trifous v. Attorney General [1952] IsrSC 6(1) 17, at p. 23): justice must not only be done but must also be seen.

If so, the fact that as a rule, legal proceedings are conducted publicly ensures that the provisions of the law are followed scrupulously with respect to the conduct of trials, contributing to their fairness and to their proper conduct. It makes the process of doing justice transparent and accessible to the public as a whole, fortifying public trust in the judicial system (and see: LCrimA 5877/99 Yanos v. State of Israel [2004] IsrSC 59(2) 97 (hereinafter: Yanos), at p. 111)). These functions, which are served by the public nature of proceedings, render it an instrument of oversight of the judges and of their conduct.

41.  Alongside the public nature of the proceedings, other characteristics of the legal process are directed at ensuring transparency, and in this they contribute to the oversight of judges. In this context I will mention that judicial proceedings are documented in the protocol, which is intended to express and reflect what happens in the courtroom (and see: Dafna Barak-Erez, Administrative Law (5770-2010), at p. 613), and that there is a duty to provide written reasons for judicial decisions. The protocols and the duty to provide reasons are significant, necessary components in enabling the parties to challenge the decision before an appeals court, and in order to allow that court to review the judicial decision and the discretion that was exercised in the conduct of the process (on the importance of the protocol for review on appeal, see: CA 579/90 Rosin v. Ben-Nun [1992] IsrSC 46(3) 738, at p. 747. On the importance, for that purpose, of providing reasons see: CrA 446/01 Rudman v. State of Israel [2002] IsrSC 56(5) 25, at p. 30; CA 84/80 Qassem v. Qassem [1983] IsrSC 37(3) 60, at p. 70; CrM 3196/00 Abergel v. State of Israel [2000] IsrSC 54(2) 236, at p. 239). In addition, as an element of the transparency of the courts system, there is a right to view court files, even for non-litigants, as regulated in the Courts and National Labor Courts (Examination of Files) Regulations, 5763-2003 (on this matter, see Association for Civil Rights).

42.  Mention has been made, both in legislation and in the legal literature, of other means that can serve the function of supervision of the judges, such as the process for judicial disqualification, due to concern about bias (see Yigal Mersel, Judicial Disqualification Law (2006) 37); filing a civil suit for a judicial tort; the possibility of suing the state instead of bringing a personal suit against a judge; a suit against the state as being responsible for the propriety of the judicial system; and embarking on legal proceedings against a judge in cases which are not protected by the immunity from criminal proceedings that is afforded to a judge by virtue of sec. 34T of the Penal Law, 5737-1977 (Avnieli, Control of Judges, at pp. 392-399).

b. Supervision Mechanisms in the Disciplinary and Ethical Realm

43.  The main mechanism of oversight of judicial conduct is the institution of the Ombudsman for Complaints Against Judges, who operates by virtue of the Ombudsman’s Law. The Ombudsman’s Office is a separate, neutral, and independent body, whose job is to investigate “complaints about the conduct of judges in carrying out their functions, including the manner in which they conduct a trial (end of sec. 2 of the Ombudsman’s Law), for the purpose of improving the service given to the public by judges, while preserving judicial independence (Strasberg-Cohen and Svorai, HaMishpat at p. 54). The oversight exercised by the Ombudsman’s Office does not deal with the substantive aspect of the judicial function, which clearly falls within the principle of judicial independence, and which is subject to review by the appeals process. The Ombudsman’s activity focuses on the conduct of the judges on the ethical-disciplinary plane (ibid.), which, as befitting the nature of the judicial position, is held to a high normative standard:

Indeed, even that which is permitted to all other people, and even to other public servants, may well be prohibited to a judge qua judge. This is so with respect to his manner of speaking and his conduct, and with respect to the need to be meticulous in guarding against harm to the appearance of justice, and this is so with respect to the care he takes in conducting a well-run trial and more. This extra vigilance stems from the special nature of the judicial endeavor, in which the judge deals with fateful decisions in criminal and civil law, in preserving the rule of law, human rights and the values of society, while doing justice through the law. This vigilance also stems from the need to preserve public confidence in the judicial system— meaning the public’s sense that the judicial act is executed with fairness, neutrality, objectivity, without bias or prejudice, while maintaining the high moral level of the judges (Tova Strasberg-Cohen and Moran Svorai, “Oversight of Judges on the Ethical-Disciplinary Plane” Mishpat Umimshal 9 (2006) 371, 378).

The purpose of these norms, the observance of which is within the purview of the Ombudsman for Complaints Against Judges, is to preserve a high professional and moral standard in the judicial system, and to maintain and strengthen public confidence in that system.

Alongside oversight of the conduct of the judge in the courtroom and his maintenance of a judicial temperament that is in keeping with his judicial position, the Ombudsman also deals with aspects of the efficiency of the operation of the courts system, including the speed with which cases are handled.

44.  The oversight conducted by the Ombudsman is publicized in an annual report, which includes details of the complaints lodged each year against judges, without designating the names of the judges against whom the complaints are lodged. In addition, reasoned decisions regarding complaints that have been found to have merit are inserted into the personal files of the judge in question. The Ombudsman’s office is also authorized to recommend that disciplinary action be taken against a judge, or that his judicial appointment be terminated by the Committee for the Appointment of Judges (sec. 22 of the Ombudsman’s Law). At the same time, the Ombudsman’s office also looks to the system as a whole, by recommending steps to correct defects that emerge as general or broad phenomena and following through on their execution (Strasberg-Cohen, Berinson Volume, at p. 143).

The principles that have been laid down in the Ombudsman’s Law for the supervisory activity express a striving for effective oversight, together with caution, responsibility, and sensitivity to ensure that there is no violation of judicial independence (Strasberg-Cohen, Mishpat Ve’Asakim, at p. 342). The actions of the Ombudsman’s office express, therefore, a model of oversight of the activity of judges that involves public expression and reporting, which may have significant implications from the point of view of those over whom the oversight is exercised, but without exposure of the details of the judge in question.

45.  In addition to the activity of the Ombudsman’s office, aspects of supervision and oversight over the conduct of judges can be discerned in other frameworks as well: for example, the activity of the disciplinary court for judges (sec. 13 of Basic Law: The Judiciary and secs. 17 – 21 of the Courts Law); or the activity of the Ethics Committee under sec. 16B of the Courts Law (see also Strasberg-Cohen and Svorai, HaMishpat, at pp. 54-55).  These are joined by the fact that the courts are amongst the bodies subject to audit by the State Comptroller (State Comptroller Law 5718-1958, secs. 9 and 10(a)(2)). In addition, there is informal oversight of the courts system by the director of the courts and the presidents of the courts, which mainly consists of administrative oversight by means of tracking the number of cases and the pace of proceedings in each court (and see: Strasberg-Cohen and Svorai, Mishpat Umimshal, at p. 380).

Public Oversight

46.  To the mechanisms of oversight must be added the public criticism to which the courts and the judges are subject. Public oversight includes criticism of courts and of judges by jurists, academics, public representatives, the media, and of course—the general public. The possibility of criticizing judges as public functionaries is a component of freedom of expression. As stated, public confidence in the courts significantly depends on the ability of the public to publicly criticize them. Indeed, “justice is not a cloistered virtue, She must be allowed to suffer the scrutinty and respectful, even if outspoken, comments of ordinary men” (as cited (and translated) by Justice Etzioni, CrA 364/73 Seidman v. State of Israel [1974] IsrSC 28(2) 620, at p. 634). In this context, the fact that the deliberations of the courts are, as a rule, open to the public who may come, listen, see, and form a first-hand impression of the manner in which cases proceed is, obviously, of particular importance.

47.  The possibility of formulating criticism depends, as mentioned, on access to information. A major instrument of oversight for the public is the Freedom of Information Law. Various reports that the appellant publishes by virtue of the Freedom of Information Law allow the public to see the number of cases that are handled in the courts and the pace at which they are handled. Thus, the annual report of appellant no. 1 includes data concerning the number of cases that were filed and closed each year, the total number of cases pending, the distribution according to courts and according to areas of activity, and the average lifetime in years of a case. The bi-annual report published by appellant no. 1 includes data about the volume of cases, the number of cases that were filed and that were closed, segmented according to the courts, the types of proceedings and types of cases, and also data concerning the rate at which hearings take place, the distribution of the cases according to the number of years that they have been in the system, and the average lifetime of a case in the different courts. The judges’ dockets and the online management of cases make it possible to learn about the functioning of the system. Of course, this data does not refer to the volume of cases handled by a particular judge, or to the duration of proceedings in the cases he hears, which is the issue before us at present.

48.  I will add something that might be obvious: the importance of public scrutiny does not necessarily imply that the criticism requires or justifies internalization or correction. The criticism might reflect “passing whims, which are detrimental to fundamental principles,” in the words of President Barak (Aharon Barak, “Law and Judgment”, Selected Writings 1 (5760-2006) 961, 963), and it is clear that the judge should not wring his hands over them. The criticism is sometimes based on incomplete or wrong information. Sometimes it ignores relevant facts. In these cases, too, there is no justification for correction or change in the wake of the criticism (Barak, Farewell Address, at pp. 9-10).

Interim Summary

49.  I have discussed at length judicial independence on the one hand, and the fact of the court being subject to oversight and audit by means of various mechanisms on the other hand. It is precisely because of the elevated status of the judicial function that the mechanisms that ensure the transparency of the courts and their oversight are so important. They are able to increase and bolster public confidence in the courts in general and in the judges in particular. I will note at this point that given the publicity, transparency, oversight, audit, and supervision, one cannot but be surprised at the objection of the appellants to the request, which is something of an addendum, and not central, to the large, broad set-up of transparency in the courts, which only increases confidence in the judges and in the whole courts system.

At this stage let us turn to the Freedom of Information Law, and determine whether the appellants succeed in passing through the filters that it establishes. First I will look at whether the requested information is governed by the Freedom of Information Law. Then I will examine the reasons for the appellants’ refusal to hand over the information, and decide whether they can invoke an exception to disclosure by virtue of sec. 9(b)(1) of the Law, as they claim.

First Filter – Section 1 of the Freedom of Information Law

50.  As we have said, sec. 1 of the Freedom of Information Law states that every citizen or resident in Israel has the right to obtain information from a public authority. Section 2 of the Law defines a “public authority” for the purposes of the Law. Item (5) of the definition of “public authority” includes within this definition “Courts, tribunals, execution offices and other bodies with powers of adjudication under any law, except in respect of the content of a judicial proceeding.” The definition does not, it is true, specifically mention the courts administration as a public authority, but because it applies to “courts”, there is no doubt in my mind that appellant no. 1 comes within its purview. In addition, the requested information—data regarding the number of cases that are being heard by each judge and as to the date on which each case was opened—is information that is administrative in nature and does not involve the contents of a judicial proceeding, as required by the end part of the definition of a “public authority” (for the distinction between administrative information and information regarding the content of a judicial proceedings see Segal, at pp. 141-143).

I am aware of the appellants’ argument that in order to present a complete picture of the situation, they would have to add various explanations to the requested data. According to them, the required explanations would create “slippage” towards the innards of the judicial proceeding and the discretion exercised in its framework, which is not covered by the Law. I will discuss this issue below; at this stage, however, I am of the opinion that our matter passes through the first filter established by the Law.

The Second Filter – Exceptions to Delivering Information (Section 9 of the Law)

51.  The appellants contend that they may invoke the exception to the delivery of information prescribed in sec. 9(b)(1) of the Freedom of Information Law, whereby:

    (b)     A public authority is not obliged  to provide information in any of the following categories:

(1)        Information, disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.

I will mention, very briefly, that appellants’ main argument is that delivering the information with the names of the judges hearing the cases will bring harm to public confidence and to judicial independence, which are essential foundations of the functioning of the courts system; hence the concern about interfering with the orderly functioning of this system. As stated, the appellants are prepared to deliver the requested information, but without mentioning the names of the judges.

52.  The exception upon which the appellants wish to rely is included in the cases in which the authority is not obligated to give out information, as specified in sec. 9(b)(2) of the Law, and in relation to which the public authority has discretion whether to disclose the information, in order to protect other important interests. The scope of the discretion granted to the authority within the bounds of sec. 9(b) of the Law is broad (Council for Higher Education, at p. 238). The fact that administrative discretion lies at the core of this section makes it an extremely important and central arena in which the right to information acquires content (Hillel Sommer, “The Freedom of Information Law: Law and Reality”, HaMishpat 8 (5763-2003) 435; Segal, at p. 199). The main consideration that should guide the authority in its decision as to whether to refrain from providing information under sec. 9(b) of the Freedom of Information Law is public interest in the disclosure of the information (Segal, ibid.). At the same time, the authority will also take into account, inter alia, the public interest in transparency of the authority’s activities in order to enable informed discussion and to allow for effective, appropriate public oversight of the authority, the applicant’s interest in the information (sec. 10 of the Freedom of Information Law), and the right of the public to know.

I will begin with a discussion of the probability test that the appellants must pass in order to invoke the exception in sec. 9(b)(1) of the Law. I will then proceed to examine the arguments on their merits.

Probability Test

53.  The parties disagree on the question of whether, in the balancing that takes place pursuant to sec. 9(b)(1) of the Law, appellants must show that interference with the activity of the authority or with its ability to perform its tasks is a near certainty, as respondents claim, or whether it is sufficient for them to pass the more lenient standard of proving a reasonable possibility that the said result will occur, as appellants argue. According to the appellants, in achieving a balance between the principle of justice being done by the courts and other principles such as freedom of expression, the case law requires nothing beyond the criterion of reasonable possibility of interference with the administration of justice, and in this regard they refer to Dissenchik and Azulai, in which there was discussion of the balance between freedom of expression and preservation of the integrity of the judicial process; to CrimApp 1986/94 State of Israel v. Amar [1994] IsrSC 48(3) 133, in which there was discussion of the balance between the freedom of movement and the orderly function of the judicial process; and to LCrimA 4708/03 Hen v. State of Israel – Ministry of Health [2005] IsrSC 60(3) 274 (hereinafter: Hen), in which the balance between the principle of doing justice and the public interest in improving and advancing medicine was discussed.

Indeed, in these cases, the court employed the “reasonable possibility” standard, in examining whether competing rights or interests should be limited for the purpose of ensuring various aspects of the judicial proceeding. However, there is a significant difference between these matters and the one before us. To what am I referring?

54.  In order to strike the appropriate balance between various values and interests, there is an accepted distinction between “horizontal balancing” which exists between two interests or values that are of equal legal status, and in the framework of which a certain concession is required on the part of each in order to allow for the core of both to be upheld, and “vertical balancing” which seeks the balancing point between a “high” right or normative value that clashes with a right or normative value of inferior status. In the framework of vertical balancing, preference will be accorded to the value whose status is more elevated, if the balancing formula that can determine the severity of the violation of that value and the probability of its occurrence is satisfied. In this context, the common criteria are the “near certainty” of the occurrence of the violation, or the “reasonable possibility” of its occurrence (see in short in: Barak, The Judge in a Democratic Society, at pp. 272-272; Hen, at p. 296; HCJ 10271/02 Fried v. Israel Police—Jerusalem Region [2006] IsrSC 62(1) 106, at pp. 152-153; Barak, Freedom of Information, at p. 101-102).

In the present matter, the public’s right to information, which as stated is a right of a constitutional nature, in that it is derived from the right of freedom of expression, is in competition with the public interest in the efficient functioning of the judiciary, which also encapsulates the interests of protection of the rule of law and maintenance of public confidence in the courts. I would clarify that I do not believe that the opposing interest is the moral integrity of the judicial process, for even the pleadings of the appellants in no way intimate that they are concerned that publication will affect the exercise of judicial discretion. The balance in question is, therefore, one which is vertical in nature.

55.  In the past, this Court has considered the exception in sec. 9(b)(1) of the Law, and has determined that anyone seeking to invoke it must show that the disclosure of the information will lead, with a high degree of probability, to real harm to the public interest, which the authority seeks to protect in declining to disclose that information:

Section 9(b)(1) is formulated in broad and inclusive terms. The provision permits the public authority not to deliver “information, disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.

.” It has rightly been said of this provision that it “opens the door to a distortion of the very right to obtain information” (Segal, at p. 199). Interpretation of the section must, therefore, adapt itself to the criteria that guide the Law and to the general and constitutional principles that are accepted in our law. It is a well-known, established rule in our law that where there is a clash between a protected constitutional right and a public interest, the latter takes precedence over the former only where there is an appropriate standard of probability—normally, “near certainty”—of real harm to that public interest is met… This rule is particularly applicable in the case of a clash between freedom of expression and other public interests (see Kol Ha’am; HCJ 4804/94 Station Film Co. v. The Film Review Board  IsrSC 84 (5) 661). The formula that emerged from the abundant case law regarding freedom of expression and its constraints is applicable to our case as well.

…

Indeed, there is an important public interest in preserving the orderly functioning of a public authority, but only where there is near certainty of harm to that interest will there be sufficient cause for limiting the freedom of information. Let us be precise: where it is possible to reduce the harm to the orderly functioning of the authority without negating the freedom of information, it is right and proper to do so. The restriction of freedom of information is a last resort, and the public authority has a duty, before it decides not to hand over the information whose disclosure is being sought, to examine means that are less detrimental to the freedom of information ( Ministry of Transport, at p. 84-85 (emphasis added, E.A.). See also AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23,2012] (hereinafter: Ministry of Education), para. 7 per Vice-President E. Rivlin).   

A similar view regarding the fact that the relevant probability criterion within the bounds of sec. 9(b)(1) of the Law is that of near certainty was also expressed by Segal (p. 199), and by President Barak who noted that “… within the bounds of the external balance and against the background of the purpose of the Law, only severe, serious  disruption whose occurrence is a near certainty allows for the non-disclosure of information” (Aharon Barak, “Freedom of Information and the Courts”, Kiryat Hamishpat 3 (5763-2003) 95, 102-103). I too accept that for the purpose of restricting the citizen’s access to information, the authority must meet a strict standard of near certainty of the occurrence of harm to a competing protected interest which is recognized by the law.

56.  The appellants sought to argue that the more lenient standard, i.e., that of “reasonable probability”, ought to be applied in our case, as was done in the cases cited above, in order to ensure protection of the legal process and its integrity. I beg to differ. First, in the cases of  Dissenchik and Azulai, there was concern for damage to the integrity of a judicial proceceding that was actually taking place, against the background of the contents that had been published. In the present case, the appellants plead concern about the general effect of publicizing the performance of the judges. This concern is based, even if only partially, on assumptions and speculation, and assumes that the publication per se will affect the general conduct of the judges. In my view, and I will elaborate below, this argument is difficult to accept, and in all events it does not justify invoking a more lenient standard. Another significant difference emerges from the decision of (then) Justice A. Barak in Azulai, who explained that in the context of a violation of sub judice (sec. 41 [then] of the Courts Law, 5717-1957), the criterion of reasonable probability is not only directed at harm done to a judge:

       Till now I discussed the possible effect on the professional judge. Needless to say, sec. 41 of the Law does not deal exclusively with a judge. It is concerned with publication that has the potential to affect the course of the trial or its outcome. It may be a litigant who is affected; or the witnesses. It would seem that it, in fact, the judge is the strongest link in this chain, whereas the witnesses are the weakest link. Frequently, there is a reasonable probability of the witnesses having been influenced, whether by way of dissuading a witness from testifying or by influencing—consciously or otherwise—the contents of his testimony. This is the reasonable probability that sec. 41 is intended to prevent (ibid., at p. 577; cf. also the words of Justice Berinson in Dissenchik, at p. 185).

To this must be added that sub judice involves the restriction of the freedom of expression regarding a particular matter for a limited period—as long as the trial is proceeding. In our case, the restriction sought by appellants is much wider. Moreover, I will point out that even though, in the cases on which the appellants sought to rely, the reasonable probability standard was selected for balancing between protection of the judicial process and other rights and interests, there are other cases in which, when the freedom of expression comes up against the interest of protection of the legal system, it was in fact the standard of near certainty that was selected (see, e.g., HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [1990] IsrSC 44(1) 604 (hereinafter: Be’eri), a p. 607).

57.  The cases to which the appellants referred dealt with the balance between the freedom of expression and preservation of the integrity of the judicial process and due process. Apart from the fact that, as stated, I do not think that our case relates to the integrity of the judicial process, these cases did not deal with a balance that involved the right to information. It is important to emphasize that in the context of disclosure of information that is held by public authorities, there is a special legislative arrangement, viz., the Freedom of Information Law, and the balances it requires must be made in light of the purposes of the Law, and in particular, the purpose of the transparency of public authorities in order to allow for oversight of their activity. Moreover, as Segal explains in his book, the Law was applied to the administrative aspect of the activity of the courts, and the committee to examine the implications of the Freedom of Information Law for the courts system, headed by Judge J. Tsur, found that out of respect for the purposes of the Freedom of Information Law, the judiciary should not be granted protection or immunity in relation to the administrative aspect of its task (Segal, at p. 143). In light of this, the argument that in relation to courts, the more lenient probability standard should be adopted as a starting point, in order to protect the judicial process is troublesome: it seeks to create a different standard for the courts precisely where the legislator saw fit to subject them to the Freedom of Information Law, albeit regarding the administrative plane of their activity, with which we are dealing. I therefore see no justification for abandoning the framework that was established by the Law and the case law for considering petitions under the Freedom of Information Law by making do with a lenient probability standard, and therefore, I reject this argument.

From here we will proceed on a path that will lead us to a decision. Only if it is found with near certainty that publication of the requested information will interfere with the activity of the judiciary or with its ability to perform its task, in that it will detract from the confidence of the public in the judges and affect judicial independence, will the appellants have cause to refrain from delivering the information under sec. 9(b)(1) of the Law.

Disruption of Proper Functioning of the Authority or its Ability to Carry Out Its Duties

58.  The argument of the appellants that publication of the requested information will disrupt the proper function of the courts or their ability to carry out their duties, and that they may therefore avail themselves of the exception in sec. 9(b)(1) of the Law, is built on several levels. The first is their argument that the requested information does not create a reliable picture of the load on the system or on a particular judge in the system. At the second level it is argued that the distorted picture that will be painted by this information will harm the judges in various ways—it was explained that handing over the information while connecting it to the names of judges does not comport with the purpose of the Freedom of Information Law. It will cause the individual judges to be seen as being exclusively responsibile for these numbers, but to which, in fact, various systemic problems contributed; it will harm their reputations and cause them to feel that they have been wronged; it will be detrimental to their functioning, because they will be judged by the public exclusively on the basis of quantifiable parameters, which do not reflect the quality of their work and its nature; it will be burdensome to them, due to the need to deal with distorting criticism. It was also mentioned that releasing the data would make it difficult for the system to recruit suitable judicial candidates in the future, and that there was a concern about misuse of the information. All these, according to the appellants, will lead to a third layer—to the serious outcome of harm to public confidence in judges as a result of incomplete, distorted information, leading to disrespect for the judges and to harm to judicial independence, due to distorted personal information, which has the potential for embarrassment and intimidation and for upsetting the equanimity which is essential to the functioning of a judge. I will stress that from the appellants’ arguments it emerges that they are not arguing that the publication will affect the discretion that the judges exercise, but that it will affect the conditions necessary for them to perform optimally.

The Requested Information – An Incomplete Picture

59.  There is merit in the appellants’ argument that presentation of the requested information does not create a reliable picture—neither of the burden on the courts system, nor of the caseload of any particular judge. The reasons for this are many and varied, most of which were elaborated upon by the appellants in their appeal.

The requested information concerns only the district courts and the Supreme Court, and it does not, therefore, reflect the overload in the courts system in its entirety. Moreover, I accept that data as to the number of open cases and the date on which each case was opened, even when added to other data published by the courts system, present a limited, incomplete picture which does not shed light on the reasons for the duration of the handling of a case—short or long—nor on the reasons for the caseload of a particular judge. A long list of variables which will not find expression in the requested information can affect the data: thus, for example, the type of process can affect the duration of the judicial proceeding. A fast track process is not the same as a civil suit in the framework of which testimony is heard. An arraignment hearing is not the same as a criminal trial in which witnesses testify. In addition, different events in the lifetime of a case can significantly affect the length of time over which it is handled: an accused person who flees; a witness who dies and the party who summoned him to testify wishes to find another witness in his place; mediation proceedings, compromise agreements, or plea bargains that were achieved at early stages of a process; motions for stay of proceedings; the concurrent conduct of another process on a related matter; the case being returned to the trial court by the appeals court—these are only a few examples of what can influence the duration of a case. In the Supreme Court, and particularly in relation to petitions to the High Court of Justice and in appeals on administrative petitions, the duration of the lifetime of a case is often affected by the need to wait for the completion of legislative or other processes that might obviate the need to decide on the petition and prevent judicial intervention. Preliminary processes, such as questionnaires and discovery of documents in a civil process, or an appeal for discovery of confidential evidence and procedures relating to examination of the material from interrogations in a criminal process, can also affect the amount of time taken for a case. Of course, there are also urgent cases which require immediate attention and cause a delay in the handling of older cases. Above all, the requested data cannot reflect the degree of complexity of the case, from either a factual or a legal point of view. The more complicated and complex the case, the more time may reasonably be required to decide on it. The said data in no way expresses the number of parties in a case, the number of sessions that are required to resolve it, or the number of witnesses summoned to testify.

I will further mention that the requested information cannot shed light on additional aspects of the conduct of the parties that affect the duration of the proceedings in the case, whether these be agreements about submitting affidavits in a civil process or submitting agreed notifications in a criminal process which contribute to the efficiency of the proceedings, or whether this be conduct that contributes to the drawing out of the process, such as repeated requests to defer hearings, summoning witnesses whose testimony is of disputable value, the manner in which the questioning is conducted and more. The requested information also does not reflect situations in which a single judge began hearing the case and it was subsequently transferred to a bench of three judges, as happens, for example, with petitions to the High Court of Justice, or instances in which cases are passed over to a judge as an “inheritance” from a judge who retired, and they are therefore “more ancient” within the system.

I therefore accept the argument that the requested information will create an incomplete picture that cannot attest to what is actually sought—a picture of the burden on the courts system and its judges. I will elaborate on the ramifications of this matter presently.

Distinction between Institutional Information and Personal Information

60. A central argument raised by the appellants is that the purpose of the Freedom of Information Law is to ensure transparency of the public authority so that oversight will be possible, and not personal transparency of those working in the authority. According to the appellants, in order to achieve this purpose, no connection is required between the information and the identity of a particular functionary—something which could interfere with the functioning of the public authority. 

On the level of principle, I accept the distinction between institutional information and personal information. Examination of the Freedom of Information Law and of the literature on the subject leads to the conclusion that the Law is concerned with the public authority as a governmental factor, as a system, and not in attempting to zoom in in on individuals who are active in its ranks. This conclusion stems primarily from the provisions of the Law, which refer to “information from a public authority.” Some may argue that such information includes information about the functioning of the individual employee of the authority, but other provisions in the Law seem to indicate the opposite: thus, the duty of the authority to publish an annual report that contains information about its activity and areas of responsibility (sec. 5 of the Law) means that the Law envisages the possibility of oversight of the activity of the authority as a system; hence the fact that the reasons for rejecting requests for information all involve considerations of the authority as a system and not individual considerations (sec. 8 of the Law); hence the only concrete reference in the Law to an employee of the authority involves “information concerning the disciplinary affairs of a public authority employee, excepting information involving public processes stipulated by law” (sec. 9(b)(9) of the Law), in relation to which the authority is permitted to refrain from disclosing the information.

61.  The said conclusion is also dictated by logic: the public authority is responsible for certain domains in relation to which it has been granted various powers. The interest of the public that wishes to examine the activity of the authority and to oversee it lies in the activity of the latter as a body that provides the public with services and acts as its trustee. The purpose of public oversight is to examine whether the private citizen obtains from the authority the service to which he is entitled: whether the authority fulfilled its goals and aims, what was the extent and nature of its activity, how it exercised its powers. It does not examine the service given to a person by a particular employee of the authority. It is the system that is open for public scrutiny, and not its employees.

To clarify: this does not mean that the employees of the public authority are immune from oversight. As a rule, claims about the manner in which employees of the authority operate should be examined in the framework of the authority or in public frameworks that are suited to the examination of complaints and other such claims. One cannot accept that every complaint about a public servant, his output and his efficiency at work, or the nature of his work will be a matter for public oversight, without all the relevant information being considered and without all the circumstances being weighed in a balanced and cautious manner. As the appellants point out, correctly, it is the system that is held accountable for its functioning, and which will be required, on the systemic level, to learn the lessons, adjust itself, and fix malfunctions, insofar as they have been located, even at the level of the individual employee.

62.  This is the point: I am of the opinion that in these matters, the judiciary is different from other public authorities. As I pointed out in the discussion of the principle of the judge’s duty to report, the judge holds public office and is obligated by all the duties that obligate a public servant. At the same time, the status, the obligations, and the powers of the judge differ from those of all other public servants. The crux of the difference between a judge and other public servants lies in the judge’s judicial independence. In what way?

The judge enjoys personal independence that allows him to rule in accordance with the law and with the dictates of his conscience, irrespective of any other party, as is required by the very nature of the judicial process and of the objectivity that is essential to its conduct. I do not believe that there is any other public office bearer who enjoys such wide independence, for there is no public office bearer whose activity is not subject to audit, oversight and authorization by his superiors. As I have already mentioned, the fact that the decisions of the judge are subject to the appellate review does not negate the judge’s judicial independence at the time of making the decision. In addition, as is known, the appeals court tends not to interfere in every matter, and its interference with the decisions of the trial court is cautious, restrained, and subject to clear rules that have been established in the decisions of this Court.

63.  Personal judicial independence is also secured, as I explained above, by means of rules that were formulated in order to ensure the status of the judge and his office so that the work environment in which he operates will be free of pressure or concerns of personal ramifications for any particular decision, and will allow him to make quality decisions on the merits of the case.  Particular emphasis should be placed on statutory provisions that establish the manner in which a judge’s tenure ends: in accordance with sec. 7 of Basic Law: The Judiciary, a judge’s tenure ends when he retires –at the statutory age of 70 years—or if one of the events enumerated there occurs. The only cases in which the judge’s tenure may be ended against his will or when he has not been appointed to another position (sec. 7(3)) are if the Judges’ Election Committee , by a majority of at least seven members, decides on termination (sec. 7(4)) or upon a decision of the disciplinary court (sec. 7(5)). Clearly, then, the judge is securely placed on the bench, and the termination of his tenure when he has not reached retirement age or voluntarily on his part is possible only in very extreme and exceptional circumstances. This is not the case with general employees of the civil service. Their employment can end, and in all events if it transpires that an employee is not suited to the task that he is meant to be performing, he can be transferred from his position to another one suited to his skills.

64.  Another distinctive characteristic that derives from judicial independence is judicial independence internally vis-à-vis the courts system. The judge indeed belongs to the judicial branch, but is not subject to the oversight and audit to which civil servants in other frameworks are subject. It is the judge who sets his work schedule as well as the nature of the proceedings in his courtroom: he decides how many sessions there will be and their duration; he determines how much time the parties will have for questioning witnesses and raising various arguments through their respective lawyers. It is the judge who decides how to prioritize the handling of the cases: how his time as a judge will be divided between scheduling hearings for new cases and writing decisions, whether hearings will be held in new cases before old decisions have been written, and how much time will be devoted to each case. It is the judge who decides the tempo at which cases proceed, he sets the dates, but he also decides on the cancellation of hearings. He decides on the depth of the judicial reasoning and on how detailed it will be; when the  decision is written and when it will be heard. In other words, to a large extent the judge’s chambers are an independent, separate micro-system within the public system.

To clarify, the reality in which the judge operates is not without its limitations, which impact on the exercise of judicial discretion. Thus, for example, the law states that judgments will be rendered within thirty days from the end of the deliberations (sec. 190(d) of the Civil Procedure Regulations 5744-1984); various statutory provisions relate to fixing of dates of hearings, the extent and duration of hearings and the date on which judgment will be rendered, such as Title 16-1 of the Civil Procedure Regulations, which is concerned with hearing a case by way of fast track proceedings; and various directives are issued by the President of the Supreme Court and the Director of Courts. However, there is nothing in these to change the fact that a judge has no superior to whom he is answerable with respect to fulfilling his tasks or to whom he must explain administrative decisions that he has made. Neither is there anyone who will demand explanations about his decision to deviate from any particular administrative directive. Even given the said limitations—each of which has the potential for detracting from the judge’s independence—it may be said that the activity of the judge is independent and autonomous, and certainly so compared to other functionaries in the public service.

65.  This independence and autonomy that the judge enjoys in his position has no counterpart in the public service, for the good reasons that I discussed. Oversight and supervision of the judge and of his conduct in the various frameworks are restricted and limited to cases which, as a rule, may be deemed exceptional and unusual. This is true on the substantive level of the judges’ work, but it is also true in relation to its administrative aspects, such as the rate at which cases are heard. To a very large extent, the system depends, and justifiably so, on the judge’s suitability for his job as determined on the basis of the appointment process, and on the integrity, fairness, and sense of responsibility of the judges. The fact that the judge functions as a type of independent, separate system within the judiciary, sets judges apart from other public servants in a manner that, even if the distinction made by the appellants between institutional information and information of a personal nature within the bounds of the Freedom of Information Law is correct in general, its significance, logic, and validity are nevertheless reduced with respect to judges.

At this stage I will proceed to an examination of the second tier of the appellants’ arguments—the harm to judges and to the courts system as a result of disclosure of the requested information.

The Requested Data as an Index for Assessment of Judges

66.  The appellants are of the opinion that there is a significant difference between systemic data, which is statistical or quantitative, and publication of that data in reference to, and naming the person responsible for, the material to which they pertain. There is logic to this argument. Whereas statistical data relate to the public authority as a system and constitute an index of its activity as a whole, or at most, are perceived as an index for assessing the performance of those at its head, publication of data pertaining to the performance of individuals places that individual in the spotlight, linking the data to him individually, sometimes even more than to the system itself.

Against this background a concern arises that connecting the data with the name of a particular judge will put him in the position of being the principal bearer of responsibility for the “performance of the system”, i.e. for the data that is published, and expression will not be given to the additional considerations that make a significant contribution to the picture that emerges, beginning with the concrete circumstances of each case, as I have already discussed, and ending with the various systemic difficulties that the individual judge, no matter how dedicated and efficient he is, cannot solve and which ought not to be loaded onto his shoulders. The primary source of concern in this matter is the fact that in publishing the data with named segmentation, no expression is given to the heavy burden on the legal system overall, the reasons for which are extrinsic to the judges: ranging from structural reasons inherent in the system, to a lack of positions for personnel and to technological and social advances, which lead to the statutory regulation of various areas and, thereby, create additional legal processes, and ending in social-cultural reasons, such as the absence of a tradition of solving disputes outside the courtroom, which leads to a multiplicity of proceedings (on this see Raanan Sulitzeanu-Kenan, Amnon Reichman, Eran Vigoda-Gadot, “The Burden on the Judicial System – Comparative Caseload Analysis of 17 States” (2007) http://elyon1.court.gov.il/heb/haba/Courts_burden_Final_report_5.07.pdf.  See also per (then) Justice A. Grunis in CrA 4865/09 Adv. Feldman v. Tel Aviv District Court [Nevo – July 9, 2009] (hereinafter: Feldman). Focusing on the individual judge is liable to deflect attention from the system, its functioning and its problems, as well as from the potential solutions, such as adding judicial positions or adding another appeals instance (Eliahu Mazza, “The Burden on the Courts Harms the Public” (February 22, 2011) on the site of the Israel Democracy Institute, www.idi.org.il ).

67.  A concern that was raised, and which is not unfounded, is that publication of the requested data will bring about a situation in which the public’s evaluation of the functioning of the judge will be based primarily on quantitative data, so that the dominant consideration in evaluating performance will be perceived efficiency—for as we have said, this is an assessment that will be based on data that does not provide an accurate picture of the present position—whereas the quality of the work of the judge and of his judgments will be cast aside.

The concern about efficiency as a major parameter in the evaluation of judges is magnified given the  approach that seeks to view judges as people who provide a public service, like any other public authority. In the modern world, efficiency is a central component in evaluating the effectiveness of performance of bodies both public and private, as part of the concept of the efficient use of resources. In my view, an index of efficiency cannot, and should not, be the main index for evaluating the performance of the individual judge or of the system as a whole. An approach that claims otherwise misses, in my view, the essence of the judicial function in doing justice, in protecting human rights and the rule of law. Indeed:

Justice cannot be achieved by means of conveyor-belt processes, and the setting of norms of law requires processes of thought which are sometimes complex and the implementation of which takes time. The judicial process sometimes involves components of an art form, but also of lofty ideals, intuition, and inspiration. In his judicial capacity, the judge is responsible, not only for determining the facts in a particular case and the judicial norm; these determinations are perhaps simple relative to the function imposed upon him to tailor the norm to the particular case, and in some cases, to set normative justice up against the circumstances of the case. The banalization of values, which is the hallmark of the previous century, led to the definition of the judicial function as providing a service to the citizen, exactly akin to transportation, cleaning, and health services; however, providing a service does not exhaust the judicial process (Levin, at p. 6).

The main index for examining judicial performance is substantive-qualitative: the judge’s conduct in the courtroom, his scrupulousness in relation to the rights of the parties before him, the quality of his decisions, their substance, and their reasons. Placing considerations of efficiency at the core of the judicial endeavor is likely to detract from its quality. It will lead to an erosion of the right to due process, is liable to harm the process of establishing the truth, will be detrimental to the doing of justice, which is the beating heart of the judicial task, and will lead, ultimately, to the public perception of the courts as bodies which are not led by substance and the doing of justice, but by their volume of output. More than anything else, it will entail harm to public confidence in the legal system. We must be on high alert against all these.

68.  As mentioned, judgments are published and can be accessed by the public; however, it is clear that the public does not take the trouble to follow the whole body of a judge’s decisions in order to formulate a position with respect to his work and its nature. Even in cases in which a judicial decision receives wide media coverage, this does not guarantee that this coverage will properly and fully report the main reasons for the decision. As opposed to this, in my opinion, it may be assumed that, to the extent that the requested data is published, it will receive significant public exposure, and will be seen as a far more concise, clear, and simple summarizing picture. This is the backdrop to the concern that the data will become the primary index in the hands of the public for evaluating the performance of the system and its judges, sweeping aside meaningful indices for evaluating the work of the judges. As stated, this is particularly troubling in view of the fact that the requested data cannot reflect an accurate picture of the situation.

69.  A situation in which the judges are evaluated according to the number of cases closed or according to the number of cases remaining on their desks, therefore, involves significant interference not only with the work of the judges and their public image, but also in the manner in which the legal system as a whole is perceived by the public. However, I believe that this chilling picture, sketched out most skillfully by the appellants, is incomplete.

First, and insofar as we are dealing with a concern about creating an inaccurate picture of the judicial burden, the appellants are prepared to tolerate this outcome, with its harms, for they are prepared to publish the information, segmented according to judges, as long as the judges are not identified by name. In essence, the purpose of the legal system is to do justice. The doing of justice cannot be confined within a set time-frame. It requires a process of weighing, of analyzing, of cautiously examining in depth all the evidence and relevant material prior to a position being adopted by the judge. Arriving at the correct decision sometimes requires negotiation between the parties, or it involves waiting for external processes taking place concurrently. As mentioned above, judgments are not written on a conveyor belt. The judge cannot fulfill his function in a high-quality, full, and complete manner with a gavel in one hand and a stop-watch in the other. He cannot conduct hearings with the State seal above his head and an hourglass in front of him. Efficiency is not the be-all and end-all: achieving justice is. Without patience, without commitment to establishing the truth, the quality of judging will be harmed, and with it, the right to due process. The judiciary will be harmed, but above all, society and the state will be harmed (on this, see Agmon-Gonen, at p. 216).

Together with all the above, and at the same time, efficiency is not a pejorative word. Streamlining proceedings cannot justify harm to the doing of justice, but it can certainly justify the aspiration and endeavor to find the balance between doing justice and the length of time over which it is achieved (Levin, at p. 8). Public confidence in the judicial system does not rely only on the personal functioning of the judge and the number of cases that he has heard. Public confidence can also be influenced by administrative aspects of judicial performance. Drawn-out proceedings erode the foundations of public confidence in the judicial system, and it has already been said that “delays of justice are liable to lead to despair of the legal system” (Cohn, at p. 367). Drawn out proceedings may involve a breach of the right to due process (CrimA 1523/05 Anonymous. v. State of Israel [Nevo – March 2, 2006], para. 22 of my opinion). They are detrimental to the ability of the court to investigate the truth, whether due to the death of witnesses or dimming of witnesses’ memory, or evidence being lost, or whether because the memory of the judge, too, and his impression of the witnesses, cannot be sharp and vivid when the opinion is written long after testimony is heard (see Feldman, at para. 8 and the references there). Prolonged proceedings are an ailment that can cause a delay of justice, and there are cases in which it even entails perversion of justice (CrimA 188/77 Wertheim v. State of Israel [51], 231). Justice delayed is justice denied, or perhaps justice whose shine is lost and whose value has been eroded (and see the apt words of Justice Berinson in CA 520/71 Goldberg v. Belaga [52], 462). The litigants whose rights to due process we are seeking to ensure are those same litigants who are waiting for a decision in their case. In this sense, the commitment of the judge to the efficiency aspect of his performance, too, is an expression of doing justice.

If so, efficiency cannot constitute the main index for evaluating the performance of the judge; at the same time, efficiency is an aspect that must be taken into account, one which bears weight in ensuring public confidence in the courts.

Burdening the Judges – Coping with Publication of Inaccurate Data

70.  The appellants themselves believe, so it appears, that despite the fact that the requested data creates a partial picture only, it is possible to complete this partial picture with accompanying explanations and thereby prevent the damage of which they are warning. However, so they say, providing detailed explanations will impose a heavy burden on the judges and will arouse concern that the information that is provided is a matter of judicial discretion—information to which, as stated, the Law does not apply.

The starting point in this regard is that the requested data is included in the right to information according to the Law. As the trial court pointed out, the respondents are not asking for any additional explanations about the data. Insofar as the appellants believe that such explanations are necessary, it is a matter for their discretion. In their pleadings there is no real basis for any argument concerning the heavy burden that will be imposed on the system and on its judges should they be asked for such explanations, It appears also that any such explanations need not involve too heavy a burden: insofar as appellant no. 1 or a judge thinks that an explanation is required with respect to a particular case, it would be an explanation which any judge would be able to give in that the case is being heard by him and is well-known to him. In my view, in such a case a short, laconic explanation would suffice, such as: “scope of the case”, “absence of the judge due to a sabbatical/personal circumstances”, “motion for stay of proceedings pending”, “mediation proceedings”, “full diary” etc. Short, succinct explanations will not, in my view, cause concern about sliding into the area of judicial discretion in conducting the cases. In my view, there is no obligation to provide explanations for the requested information, but this is a matter for the discretion of appellant no. 1, and in any case, it must be done in coordination with the judge. 

Another possible conceivable solution is to develop software that allows for assessment of the cases being handled by each judge in all their aspects, producing as accurate a data interface as possible. I will mention in this context that from the Freedom of Information Report published by appellant no. 1 in 2012, it emerges that in that year, a comprehensive study on “case weighting” was completed, which “creates an index for assessing the judicial workload in cases of various types … Thus the legal system can obtain an accurate picture of dispersion of the load between the courts and between the different areas of law” (as stated by the President of the Supreme Court, Freedom of Information Report 5 (2012)). It is not unreasonable to assume, therefore, that it is possible to develop a data base that would produce a clearer picture. In this context, too, provision of more detailed information is a matter for the discretion of the appellants, to the extent that they should choose to provide more detailed information.

Publication of the Data – Harm to the Judges and their Independence

71.  The appellants argue that providing the personally identifying information—as opposed to systemic information—will lead to harm to the reputation of judges and to their persecution, when they are unable to respond to the publication; it will upset their peace of mind and subject them to fear in a manner which can affect judicial independence. This argument is connected to another argument that was raised in relation to concern about misuse of the requested information,

As already explained, when the information is personal, it indeed places the public servant, rather than the system to which he belongs, at the center of attention. This being the case, there may be some who attribute to him the entire responsibility for the data that is delivered insofar as it concerns him.

a.     Concern about Debasement, Shaming, and Harm to Reputation

72.  I was troubled by the serious concern that the requested information will be used to embarrass the judge and publicly shame him, on the basis of incomplete information—something which, according to the appellants, will be detrimental to his performance as a judge and which will in all events also interfere with the functioning of the judiciary and its ability to carry out its task. The concern about harming the judge’s reputation also arises here.

Indeed, it is clear that publication of the data, while connecting it to the names of the judges handling the cases, might be done in a manner that is liable “to disgrace a person in the eyes of others or to make him the object of hatred, scorn or mockery on their part” (sec. 1(1) of the Defamation (Prohibition) Law, 5725-1965), “to disgrace a person on account of acts, conduct or traits that are attributed to him” (sec. 1(2) of the Defamation (Prohibition) Law, or “to harm a person’s office, whether public office or otherwise, in his business, his occupation or his profession” (sec. 1(3) of the Defamation (Prohibition) Law). There would seem to be no need to elaborate on the fact that publication of the data may be done in a way that brings disgrace and that will be embarrassing to the judge, and that for the judge, like any person, his reputation is a source of recognition, pride, and personal dignity amongst people. “A person’s dignity and his good name are sometimes as important to him as life itself; they are usually more important to him than any other possession” (CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840, at p. 856).

73.  This is indeed a worrisome matter, and it weighed heavily on me at the decision-making stage. On another matter, the late Justice E.E. Levy wrote in relation to the judge: “What does he need in his chambers, what profit in his courtroom? He has nothing but his good name, his dignity and his reputation, the acquisition of which require the investment of years of toil but the destruction of which happens easily” (HCJ 2561/07 Justice Michal Sharir v. Courts Administration [Nevo – July 24, 2008], para. 8). The judge, like every person, has the right to a good name. This right is his, despite his office, which exposes him to the public eye. The good name of the judge, his dignity, the esteem that he has earned over the years of his employment, all these accompany him in the judicial seat and contribute to his status and to public confidence in him when he is hearing a case. Without this good name, public confidence in the judge and in his integrity will suffer, and the moral—as opposed to the legal—validity of his decisions will be negated.

74.  The need to ensure public confidence imposes a heavy burden upon the judge to take care in all that he does, when sitting in judgment as well as outside the courtroom, and to act in a manner that comports with his position and that will secure the respect given by the public to its judges and to the system as a whole:

       A precondition for the proper functioning of the judiciary is that the public trust it, that it recognize its authority to sit in judgment, and that it accepts the legal decisions that it hands down (Introduction to Code of Ethics for Judges  5767-2007 (published in KT 5767 no. 6591 on June 5, 2007 , p. 934). This trust depends, first and foremost, on the existence of a moral foundation for the activity of the judicial system, and on the scrupulous maintenance of this foundation on the part of every judge in the system (CrimA 9893/06 Elon-Lauffer v. State of Israel  [Nevo – December 31, 2007] (hereinafter: Elon-Lauffer), sec. 16 of the opinion of Justice A. Procaccia).

However, maintaining the proper functioning of the courts is not only a personal task for the judge. It is not even a systemic task of the judiciary alone. Insistence on the dignity of the courts and the judges, including preservation of their reputation, is first and foremost a public interest. This is based on an understanding of the complexity of the role that is fulfilled by the judge in a democratic society, which for the most part leaves one side unsatisfied, and recognizing the importance of preserving public confidence in the judiciary as a guarantee of a democratic society, in which the rights of the citizen and the resident are upheld (and cf. Be’eri, at p. 612). The concern for preservation of the reputation of judges does not stem from a quest for glory, but rather, from the obligation to ensure the status, the dignity. and the strength of the judiciary, which are essential for the performance of its duties.

75.  The concern raised by the appellants regarding this matter is not unfounded. Unfortunately, we not infrequently hear harsh, strident criticism, sometimes unrestrained, directed at the judges. This is unfortunate, especially in view of the fact that the judge is unable to respond to the allegations made against him. As we know, the channel through which the court expresses what it has to say is the judgment. The judicial decision is not an arena for a polemic between the judge and his critics and those who speak against him. In fact, there is no arena, apart from the judicial decision, in which he can explain his intention and his reasons and respond to allegations made against him. As a result, the judge’s critics will always have the “last word”. (Then) Judge Aharon Barak discussed this:

The judge is limited in his modes of response. He does not debate with his critics. It is not usual for him to defend himself in public. He does not act as his own defense attorney. His instrument of expression is the judgment. This is his primary defense . Hence the severity of bringing the judiciary as an institution into disrepute. One who does so cuts down the major branch on which our democracy sits (Be’eri, at p. 610).

Harming a judge’s good name not only harms the judge, but is harmful to the legal system in its entirety, and ultimately also, and primarily, to democracy.

76.  Thus, there is a concern for harming the reputations of judges and shaming them by means of the requested information. At the same time, the publication per se of the information is not initially loaded, either negatively or positively. There are judges who will be accorded praise and esteem on the basis of the information—whether justified or not, for this is not the index according to which the judge ought to be evaluated, and the information is not complete. There are judges who will not be harmed by the publication. Even with respect to those judges whose images will emerge in a less positive light, the publication will not necessarily be harmful and degrading in a manner that amounts to defamation (and cf.: HCJ 5133/06 Movement for Quality Government in Israel v. Director of Wages and Employment Agreements, Finance Ministry [Nevo – February 9, 2009]). Therefore, alongside the grave harm that will be caused, if indeed such publications should appear, it must be recalled, when examining the arguments of the parties, that, at this stage, what exists are only assumptions and concerns, and it is on this basis that the request to withhold information, to which the public is entitled under the law, rests. It may also be said that the very fact that the data is exposed and transparent to the public will lead to a strengthening of confidence in the judges and in the courts, and possibly even to a strengthening of the respect accorded to them by the public, as I will elucidate below.

B. Concern about Persecution and Intimidation of Judges

77.  The appellants are also concerned that the requested data will enable the presentation of a partial and distorted picture, causing judges to be persecuted and exposed to disturbing publications that are threatening to them and that will upset the peace of mind and the confidence that are essential for their proper functioning. In their pleadings, the appellants emphasized the harm that would be caused by such publications to the essential working environment of the judge, in view of the complexity of the task; but it appears that their main concern, is about a situation in which attempts will be made to intimidate judges, to shake their confidence and to influence their performance.

It hardly needs mentioning that the concern raised in the pleadings of the appellants is grave and serious. The basic assumption that a judge is exposed to public scrutiny does not imply that he is shielded in armor that protects him from all harm. Criticism, when it is sharp, inappropriate, or unfair, may harm the judge like any public servant, like any person, and in the words of Shylock:

I am a Jew! Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? (William Shakespeare, The Merchant of Venice, Act III Scene 1).

Indeed, the judge is of flesh and blood. Criticism is liable to hurt him. It may cause him to experience a feeling of injustice, precisely against the background of the reality in which judges toil day and night to fulfill their tasks. At the same time, the conclusion to which the appellants would lead us, and according to which criticism based on the requested information will end in harm to the performance of judges, does not take into account relevant counter-arguments, as will be discussed below.

78. The judge is a public figure. His role, as I have already said, is fulfilled in total transparency, as he is exposed to judicial, institutional, and public scrutiny. Nothing in the fulfillment of the judicial function is done in the dark. The power of the judicial decision is in its reasoning, which is accessible to anyone who wishes to see it. Indeed, the judicial endeavor is like art that is executed in a cell with glass walls (see Elon-Lauffer, per Justice Procaccia, para. 15), and it has been said that “a person who accepts public office exposes himself to a large extent to the watchful public eye (HCJ 2481/93 Dayan v. Yehuda Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456). See also Government Corporations, para. 26 of my opinion). The said transparency applies not only to the product of the judge’s work—his rulings and decisions—but to the entire gamut of aspects of the judicial role.

As described at length above, judicial independence allows the judge to act to the best of his professional knowledge and understanding and in accordance with his conscience. The judicial decision is the expression of his world view and his jurisprudential, moral and ethical conceptions, in the manner that he chooses to interpret and apply the law in the concrete case. The judge is identified with his decisions, and he validates them with his signature. This is the situation in relation to all of his decisions, including those dealing with difficult, troubling issues, with human and ethical dilemmas, and also with issues that are the focus of stormy, strident public debate. In all these cases, the judge is in the spotlight. His positions and his decisions are the subject of media coverage and criticism. As we have said, the criticism that is sometimes leveled at his decisions is not always based on the entirety of the facts or on knowledge of all the material and all the reasons. The judicial decision is not infrequently presented in an irrelevant manner and in a belligerent, aggressive tone. Sometimes the criticism is hurtful, sometimes even personal. And still, it is inconceivable that due to fear of such criticism or its potential effect on the judge, that judicial decisions would not be published or, alternatively, published without designating the names of the judges who wrote them. Even in matters that are difficult, that arouse strong feelings and raise weighty issues and interests, we do not assume that criticism will detract from the quality of the future decisions of the judge or from his professionalism.

79.  Publications of the type described are liable, at least in some cases, to place the judge in tension, or under pressure; they are liable to cause him great distress or a feeling that he has been unjustly treated. Sometimes, their contents can damage the judge’s reputation. At the same time, situations such as these are a “by-product” of the judicial function. In such situations, even if the published criticisms are very harsh, the assumption is that the professional judge will be able to dissociate himself, when judging a case, from the effects of criticism. The expectation is that a professional judge will be aware of the possibility that various publications might influence him, and will therefore summon up all his integrity, fairness and the sense of mission that guides him, and his professional skills, in order to dissociate influences of this type from the process of decision-making, continuing to do justice according to the law (cf. Azulai, at p. 576-577). When that is the expectation of the judge in relation to the effect of criticism that is directed at his judicial discretion and his rulings, can something different be expected of him in relation to publications that may deal with his efficiency? I would imagine that the answer is negative. The judge assumes a heavy responsibility by virtue of the very fact that his signature must appear on his decisions. The judge gains personal esteem for his rulings and legal analyses. It is therefore difficult to accept the argument that in the context of criticism, or of the publication of data concerning the cases that he is handling—a context that can engender positive, negative or neutral publications—precisely then his identity should be erased from the system. The assumption that a publication concerning his output will harm the judge, his confidence, or his peace of mind, more than would sharp criticism of his rulings, is to attribute excessive weight to this data, rather than to the qualitative aspects of the judge’s work.

Let there be no mistake: I do not deny that criticism might be delivered in a hurtful, insulting, and, sometimes, even, sinister manner, and when that is its nature, it does not contribute to the work of the judge. This matter should, and will, be given due weight. At the same time, I am of the opinion that the embarrassment and the discomfort that might be caused are such that the judge is anyway exposed to them at present, even if they are dressed up differently.

C.    Concern about Misuse of Personal Information

80.  The appellants further argued that delivery of personal data bears greater potential for misuse of the information than does delivery of systemic information. I do not disagree. One can imagine different ways of misusing the requested information when it is identified with a particular judge: some of these were mentioned in one way or another by the appellants. This could be by means of publications that are liable to hurt the judge and publicly shame him, whether the publications relate to a specific case, or whether they are part of an attempt to affect the judge’s position or his advancement; or the information could be used to request that a case be handled by a different judge in an attempt to bring the matter before a panel that seems more “comfortable” for the particular litigant. For example, it is possible to imagine a situation in which a request is made to transfer a case that was scheduled before a particular judge to another judge, on the grounds that a quick decision in this is a matter is important, when from the published information it emerges that the particular judge has an extremely heavy caseload.

81.  I will admit that the concern that was raised about manipulative or irresponsible use of the data troubled me. As I have said, the requested data cannot sufficiently convey the dedication, seriousness, and commitment that characterize the work of the judges, as many members of the public—some of them litigants and those who have had recourse to the courts—know. The data allows for the presentation of only an incomplete and inaccurate picture which can adversely affect the judge’s image, and as a result, the legitimacy of his decisions as well. In the final analysis, I concluded that the concern about shaming the judge and harming his dignity on the basis of the said data should bear weight at the end of the road, but at the same time, I wish to state several reasons which make it impossible for me to accept appellants’ arguments in this context in their entirety.

First, the concerns that were raised by the appellants in this context, even if they are not baseless, are to a great extent speculative. It is to be hoped that any publication that is based on the requested information would be executed with the care and the responsibility that are necessary when reviewing the affairs of the legal system (cf. Be’eri, at p. 610). It is to be hoped that care will be taken to obtain the response of appellant no. 1 prior to publication, and that an effort will be made to obtain data in a complete and fair manner. I hope that as part of “responsible journalism” (CA 751/10 Anonymous v. Dr. Ilana Dayan Orbach [Nevo – February 8, 2012]) all the media will fulfill their obligation to the public to provide fair and substantiated reviewing and reporting. Of course, it is possible that there will be publications in which such care will not be taken. However, I am not of the opinion that on the basis of this mere possibility, which I assume will be the exception to the rule, it is right and proper to limit the right of the public to information concerning the judiciary, which has such a profound impact on daily life.

In addition, regarding publications that seek to influence the judge with respect to his handling of a particular case—and no one disputes that such publications are illegitimate— it would appear that this is one of the “occupational hazards”. The judge fulfils a public office; in an open courtroom, he hears cases in which the public has an interest and which not infrequently receive media coverage. A partial answer to these concerns lies in sec. 71 of the Courts Law, which prohibits publications about a pending criminal process, i.e., the prohibition of sub judice. As is known, recourse to this instrument is rare, particularly subsequent to amendment of the Law in 2002. It became applicable only to criminal processes, with civil processes excluded from its purview, and an extremely restrained policy has been adopted by the prosecution in this context (see the Guidelines for Prosecutors Regarding Prosecuting the Sub Judice Clause, Attorney General Guidelines 4.1102, (August 25, 2005)). At the same time, this instrument does exist. In addition, I see a difficulty in an approach that sees a substantive difference between the harm to a judge that will be caused as a result of a publication concerning his “efficiency”, based on partial quantitative data, and the harm that will result from a non-complimentary, brash publication about him, about his judicial temperament, his judgments and his reasoning. I believe that of the two, the more damaging are publications that attack the judge’s professionalism, his personality, or his discretion, and which impinge upon the basic characteristics of his fitness for the position. To my understanding there is no intention to prevent such publications (recently, it is true, there was a report about the opening of an investigation for degrading publications against judges on the Internet, but these were extreme cases, that give rise to a suspicion of a criminal offense, bearing no similarity to the present case).

As for the argument concerning the possibility of using the requested data for the purpose of holding back the judge’s promotion, it is clear that there is no desire to encourage such use of the information. Nevertheless, here too I do not believe that the said concern can justify withholding the data from the outset. It should be clarified that the promotion of a judge is not subject to public trial—even if the public has the possibility of objecting to an appointment—rather it is a matter for the Judicial Selection Committee. All of the material relevant to the judge is laid out before the Committee, including material concerning the quality of the judge’s work, decisions and judgments he has issued, as well as additional information from which one can learn about his performance. Thus, the process of selection is based on as complete a picture of the data as possible, and therefore it is not the publication in the media based on incomplete information which determines his fate.

Finally, the concern that was expressed about manipulative use of the information for the purpose of forum shopping can indeed cause unnecessary embarrassment for the judge, as well as placing an unnecessary burden on the courts. At the same time, the decision in these matters, too, must be on the merits. The fact that the data presents an incomplete and inaccurate picture is sufficient reason, in my opinion, in order to reject, when required, arguments and motions such as these.

82.  Once again I will emphasize that I cannot rule out the possibility that the requested information will be used for purposes other than publications aimed at increasing the efficiency of the system or helping the litigating public. It is very possible that it will be used in an attempt to embarrass judges in general, or any one of them in particular. I turned this matter over and over again in my mind; ultimately I became convinced from my longstanding acquaintance—as a defense attorney, a prosecutor, and a judge—with the judges, with the system to which they belong with all its different courts, and with its ethos, that their inner strength, the way in which they conduct themselves, and their belief in the justice of their path will enable the judges to cope with the publications and to continue fulfilling their tasks faithfully. The said concern will not deter the judges and will not detract from the public nature of the system, its transparency, or from the recognition of the importance of public and media exposure to the activity of the courts and to the public presentation of the way things are. The test for the court is not only in that it does its work properly, but in that it is prepared to expose the ways in which it works as required under the law.

D.    Damage to the Ability of the System to Recruit the Best Candidates

83.  The appellants further argued that the delivery of incomplete, misleading information is liable to detract from the ability of the public system to attract to its ranks the best candidates. With all due respect, this is pure speculation. The need to ensure the system’s ability to recruit suitable candidates to the judiciary is not in any doubt. At the same time, a person who is appointed as a judge knows that the judge’s work is conducted in a glass house. To choose to become a judge is to choose a way of life of which transparency is a central characteristic. A person appointed to the judiciary is aware that he will be required to sign his decisions, no matter how controversial they are. Given that he takes this into account before he submits his candidacy to become a judge, it is difficult to accept that the publication of the requested data is what will deter potential candidates from submitting their candidacy.

84.  Turning to foreign legal systems on the present matter is of limited utility, for the issue of the transparency of the courts – the supervision and oversight of them - differs from system to system, and, to a large extent, involves additional questions, which are not part of our discussion, such as, the manner of appointment of judges, the conception of the role of the judge and his status, and the review mechanisms to which the courts are subject. In addition, it is significant that legal regulation of the right to information differs in nature from state to state, and since the Freedom of Information Law was enacted in Israel, the response to the appeal must be found within its parameters and not overseas. Nevertheless, I believe that in relation to the issue lying at the heart of the appeal—the ramifications of disclosing the information for judicial independence and public trust in the judges, and also, for the orderly functioning of the courts—a look at comparative law could provide additional confirmation of the fact that disclosure of the information will not lead to severe harm to the courts system.

85.  The laws in various states ensuring that citizens have access to information held by governmental authorities vary in their scope and in the approach that they reflect to realization of the right to information. Thus, there are laws which have adopted the “institutional” approach, i.e., they define which bodies will be considered “public authorities” to which the law applies, whereas other states have adopted a functional approach that defines the documents that will be disclosed, irrespective of the identity of the entity that is holding them. There are states whose laws refer explicitly to the right to information held by the judiciary, but there are also states whose laws contain no concrete reference to this subject (see: Open Justice Initiative, Report on Access to Judicial Information (Draft of March 2009), http://10.51.38.100:9091/servlet/com.trend.iwss.user.servlet.sendcase?downloadfile=IRES-1758480305-E3F20870-24338-24305-265); http://www.freedominfo.org). Many states have excluded the judiciary from the application of their freedom of information laws (such as Denmark, the United States, and Belize), but there are some states that have applied—either explicitly or implicitly—the right to information to the judiciary as well, at least insofar as the administrative aspect of its activity is concerned. Examples of such states are Belgium, the Dominican Republic, Jamaica, Pakistan, Slovakia, South Africa, Thailand, Trinidad and Tobago, and of course, Israel (David Banisar, “Freedom of Information Around the World” (2006) available at

http://www.freedominfo.org/documents/global_survey2006.pdf). 

 

It is also interesting to note in this context that the International Convention on Access to Official Documents 2009 recognizes a general right of access to official documents held by public authorities in various states. The definition of “public authority” under the Convention includes “Legislative bodies and judicial authorities insofar as they perform administrative functions according to national law” (Article 1(2)a(i)(2)). The Convention is not yet in force, for it has not yet been ratified by the minimum number of ratifying states.

86.   On the specific issue of publishing data about the activity of the courts, most of the information and the data that is published in the various states is related to cases that are already closed. In other words, as a general rule, information is not published about cases that are pending. Our examination revealed that indeed, as a rule, information is not published about open cases in the courts mentioning the identity of the presiding judge. This rule has two significant exceptions.

The first is the European Court of Justice of the European Union, which publishes statistics concerning the judicial activity of the Court. Inter alia, data is published about the activity of the President and Vice President of the Court, including in relation to cases that are still pending. At the same time, regarding the other judges, the number of open cases is published, with no segmentation according to judges (ECJ Annual Report, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/en_version_provisoire_web.pdf).

A second exception, which in my view is extremely significant, relates to the US federal courts. As was mentioned, the US federal Freedom of Information Act ((FOIA) 5 U.S.C. § 552) excluded the courts system from its application. The state courts in the US publish information about their activity in a general manner, without attribution to a particular judge. However, in accordance with the federal law enacted in 1990—the Civil Justice Reform Act (hereinafter: CJRA)—information is published about the caseload of the judges of the federal courts system. The Act was passed against the backdrop of an attempt to reduce the costs of conducting civil litigation and to reduce delays in these processes. It does so, inter alia, by publishing information about cases (for the backdrop to the passage of this Act, see Patrick Johnston, “Civil Justice Reform: Juggling Between Politics and Perfection”, 62 Fordham L. Rev. 833, 837 – 849 (1994); R. Lawrence Dessem, “Judicial Reporting Under the Civil Justice Reform Act: Look, Mom, No Cases!”, 54 U. Pitt. L. Rev. 687, 689 - 694 (1993) (hereinafter: Dessem). Inter alia, the Act mandates the publication of semiannual reports that include a list—in which the judges’ names appear—of motions pending more than six months, all bench trials submitted more than six months, and civil cases pending more than three years (see e.g., http://www.uscourts.gov/uscourts/statistics/cjra/2010-03/CJRAMar2010.pdf). Under this Act, a general outline of the number of cases that have been delayed is not sufficient; the cases must be specified together with the identifying details of each.

It is interesting to note that in the framework of the discussion of the Act in the United States, arguments and reasons were heard similar to those that were raised in the present case. Thus, for example, it was noted that good reasons contribute to the workload of the federal courts system, such as cases which drag on for reasons unconnected to the judge, or delays that are necessary or appropriate in view of the circumstances of the case; the excessive caseload in the federal system; insufficient numbers of sitting judges; structural inefficiency inherent in the structure of the court system; and the complexity of the cases. As opposed to these there are indefensible delays, that cannot justify the heavily overloaded situation of the courts, most of them relating to the presiding judge, such as nonstructural inefficiency; indecisiveness; disability; or sloth and neglect (Charles Gardner Geyh, Adverse Publicity as a Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases Under the Civil Justice Reform Act, 41 Clev. St. L. Rev. 511 (1993) 513–519). In the framework of the processes that preceded the passage of the Act, Judge Robert Peckham claimed that publication of information concerning the number of cases in which there was a delay without appending suitable explanations for the delay, might mislead the public (Dissem, p. 692). Similarly, the Seventh Circuit Bar Association argued in the framework of its objection that publication of information about the status of motions and about closing cases was liable to lead to superficial conclusions, for factors such as the relative scope of the cases, the relative size of the docket in different districts, delays that have their source in the lack of judges in a particular district, or delays that stem from motions brought by the parties, would not be taken into account. In order to cope with this difficulty, the Act allows judges to append the reason for the delay, a possibility that I also raised above (ibid., 693-695). Geyh in his article points out that alternative mechanisms, both formal and informal, for dealing with the delay in handling pending cases have proven to be insufficiently effective, and thus, the value of publishing data about cases in which there has been a delay has risen as an important means of dealing with this problem (Geyh, at pp. 520-527. For a more critical presentation of the source of the demand in sec. 476 of the CJRA see: Johnston, pp. 858-859, who discusses the concern, which was also raised here, that judges will be evaluated mainly according to a measurable standard that cannot give full expression to their actual performance).

It will be mentioned that in his article, which was published three years after the enactment of CJRA, Dessem argued that as a rule, journalists who published articles on the subject took care to include the reasons for the delays, insofar as the judges reported them (p. 701).  It should also be mentioned that even though the article was published only three years after the enactment of the CJRA, it indicated a trend of improvement in the extent of the delays that were reported. The article does not look at the effect of the publication on public confidence in the legal system, but it pointed out that there had not been many reports written on the subject, and the matter was mainly taken up by newspapers intended for the legal community (ibid., at pp. 699, 706-707). A later article also indicated a trend of reduction of the delays in handling cases (Jeffrey J. Connaughton, “Judicial Accountability and the CJRA”, 49 Ala. L. Rev. 251, 253 (1997)). At the same time, it was mentioned there that the data from the “pilot” that was carried out on the subject indicated that the vast majority (85%) of district court judges who participated in the program did not change the way in which they conducted the cases before them in the wake of the Act.

87.   The few articles that we were able to find relating to the effect of the reporting requirement in the CJRA on the legal system are not up to date, and therefore their ability to assess the long-term effect of the Act on the system and on public confidence in this system is limited. According to these articles, at their time of publication, there were indications that the CJRA was achieving its goal and reducing the time for handling cases (Geyh, at pp. 532-534).  At the same time, even today, more than twenty years after the passage of the Act, the obligation to publicize pending cases according to the judges hearing the case still exists, and this is an indication of sorts that the Act did not harm the system and its functionality. Certain support for this can be found in the fact that in 2009, the Judicial Conference, which is comprised of judges in the federal judiciary, expressed its support of the Act when it voted to increase public accessibility to this information by making all the reports issued according to the requirements of the CJRA available, free of charge, on the courts’ website (New release, Judiciary Approves Free Access to Judges' Workload Reports: Courtroom Sharing for Magistrate Judges (15.9.09), available at: http://www.uscourts.gov/News/NewsView/09-09-15/Judiciary_Approves_Free_Access_to_Judges%E2%80%99_Workload_Reports_Courtroom_Sharing_for_Magistrate_Judges.asp).

Of course, it is possible to argue that the fact that the Act apparently contributed to a reduction in the delays in handling cases does not prove that no harm was done to the manner in which judges handled cases, to their patience in hearing cases, to the profundity of the reasoning in the judgments, and so forth. Nevertheless it stands to reason that with the passage of so much time since the Act came into force, that, had there been such a claim, it would have found expression either in academic writings or in the discussions about extending the access to reports in 2009.

To sum up: in the United States data similar to that requested in the present matter is published by the federal courts. True, we cannot draw conclusive conclusions about the effect of the publication on the quality of judging and on the performance of the judges in its wake, but from the fact that the Act has already existed for many years, and that it was recently decided to increase public accessibility to the information—even if it is not clear whether this decision will be implemented—we understand that, apparently, there are no substantial claims about damage caused by the Act to the functioning of the courts in general, and to the performance of the judges in particular.

Activity of the Ombudsman for Complaints Against Judges and Public Oversight

88.   The final matter that I wish to discuss is the appellants’ argument that the proper balance between the interest of maintaining judicial independence and the judges’ duty to report was prescribed by the legislator in the framework of the Ombudsman’s Law. Indeed, in establishing the office of the Ombudsman for Complaints Against Judges, a framework was devised which would allow for external oversight of judges and a true and substantive examination of the complaints brought against them, while preserving the dignity of the judiciary and its prestige (Strasberg-Cohen and Svorai, Mishpat Umimshal, at p. 373). In this spirit it may also have been thought that the fact that there exists a body that oversees the courts on an ongoing basis is sufficient in order to ensure oversight of a public authority, and that therefore there is less need for public oversight (and cf. Keshet Broadcasting, para. 81).

I do not accept this approach. First, in my view, the fact that a body exists for the purpose of oversight does not obviate the need for oversight by the public, and it certainly cannot deny the public, in the absence of sound justification for doing so, its right to oversee and criticize the governmental authorities (and cf. my position in Government Corporations, para. 33). “Public criticism is appropriate and desirable. It should not be suppressed. It should be encouraged. In a democratic state it is sometimes more important than review by the courts (Ministry of Education,, per Deputy President E. Rivlin, para. 11). This is particularly true in relation to the operation of the Ombudsman’s office, which as a rule is set in motion with the lodging of a complaint, so that there is therefore no guarantee that it will cover the entire range of activity of the courts system.  This is especially the case considering that, presumably, there are cases in which no complaints are lodged by the parties to a legal action. Precisely for this reason, there is room for the additional system of oversight provided by the public. In other words, the oversight exercised by the Ombudsman and public oversight operate on different planes and complement one another. It is difficult to accept, even given the special status of the judges, that they will be granted immunity from the Freedom of Information Law, unlike all other systems, and particularly where the legislator determined otherwise.

Summary and Conclusions

89.   As discussed at the beginning of this deliberation, the Freedom of Information Law establishes a broad norm of the right of the public to view information that is in the hands of the public authority. In other words, the rule is that of handing over information, and where the authority wishes to refrain from disclosure, it can do so if one of the statutory limitations applies. The interest of the public in disclosure of the information must be considered, as well as an assessment as to whether the public authority correctly balanced all the relevant considerations. The following should be taken into account, inter alia: the public interest in the information, as opposed to the anticipated harm to the interest of the public authority as a result of disclosure of the information; the possibility of reducing the harm to this interest, while upholding the right to information by partial publication of the information or by erasing certain particulars which it is thought will cause the main harm to the interest of the authority. All the considerations that the authority should have taken into account for the purpose of its decision whether to refrain from disclosing the information must be examined, as well as the balance between them and its reasonableness.

The conclusion at which I have ultimately arrived is that the respondents have the right to receive the requested information, since I am unpersuaded that there is near certainty of the occurrence of the harm to the courts system that the appellants claim will be caused as a result of handing over the information. My reasoning is based on the purposes of the Freedom of Information Law, the characteristics of the courts system, the transparency and public nature of its activity, the need to maintain public trust in the system, the nature of the performance of the judges, and their status and that of the courts.

90.   The parties to the petition. As stated, particular importance must be attached to the nature and the essence of the public authority in relation to which the information is requested, “It may be assumed that there is a direct correlation between the importance and degree of influence of the public authority on public affairs and the strength of the public interest in the disclosure of the information concerning its actions and decisions: ” (Council for Higher Education, at p. 251). The requested information concerns the judiciary, whose elevated status and the fact that it is amongst the most influential authorities are hardly a matter of dispute. The courts make a significant contribution to the fashioning of norms and standards; their activity touches upon all aspects of state activity and all areas of the lives of the individual and society. The public interest in knowing about the activity of the legal system, in its various aspects, is therefore clear.

On the other hand, the characterization of those requesting the information, who say that they want it for the sake of fulfilling their journalistic function, is also important in the present matter. The Law did not make the right to obtain information conditional upon the applicant providing a reason for his request (sec. 7(a) of the Law). At the same time, it is clear that the fact that the applicant’s interest in the information serves a concrete, important purpose from his point of view is likely to be a consideration in favor of providing the information  (see: Government Corporations, para. 10; Keshet Broadcasting, per Justice Y. Danziger, para. 10). The activity of journalists and the media is a guarantee for the existence of a free, civilized society:

They are a vital means for the realization of freedom of expression and actualization of the possibility for the public to oversee the activities of the government and to contribute to the establishment of a fitting culture of government. The contribution of bodies and parties of this sort to shaping the the face of society depends largely on their ability to realize their right to information (Government Corporations, para. 36).

 In the modern world, with the array of media and all the possibilities for disseminating information by means of existing technology, the media is the central means through which the individual realizes his right to information, to the exchange of views and to their crystallization (see also In re HaAretz, at pp. 479-480). The media is the central conduit through which the public can enjoy the publicity of proceedings in the courts and to learn from the journalists who frequent the courtrooms about hearings in the court and the judgments that are rendered.

In view of the public importance of the activity of the courts, and of the interest that the public has in knowing about this activity; in view of the fact that the requested information is administrative information held by appellant no. 1 and that it therefore comes under the right to information according to the Law; and having regard to the fact that the information has been requested by the respondents for the purpose of fulfilling their journalistic function, and that they therefore play an important role in realization of the right of the public to information, my opinion is that the respondents have a public interest in disclosure of the information.

91.   Ensuring public confidence in public authorities is one of the central purposes of the Freedom of Information Law. The Law reflects an approach whereby transparency of the activities of the public authorities, and the possibility of criticizing them on the basis of information provided, will lead to greater public confidence in the authorities and to their improved performance. Public confidence is a necessary condition for the judge’s ability to fulfill his task. Public confidence in the judiciary is a fundamental, basic condition for the its effective activity, and thereby of the existence of democracy. Life in a civilized society is not possible if the individual does not put his trust in the judicial authority as the mechanism for resolving conflicts and for clarifying and protecting his rights (see also Barak, The Judge in a Democratic Society, at p. 49). Indeed:

Public confidence in the judiciary is most precious asset that this branch of government has. It is also one of the most precious assets of the nation. As De Balzac noted, lack of confidence in the judiciary is the beginning of the end of society … And make no mistake: the need for public confidence does not mean the need for popularity. The need to ensure public confidence means the need to maintain a feeling amongst the public that the judicial decision is made in a way that is decent, objective, neutral and non-biased. It is not the identity of the claimants, but the weight of the claims that determine the law. This means recognizing that the judge is not a party to the legal dispute, and that he is not fighting for his power, but for the rule of law (Tzaban, at p. 148, and see Judge Cohen, at p. 461.)

As I explained above, in recognition of the fact that securing public confidence in the judicial system is not a temporary need but rather, an “ongoing need” (Tzaban, ibid.), the activity of the courts system is characterized by transparency and exposure to the public. This finds expression in the public nature of proceedings, in the publication of judicial decisions, and in the reports published by appellant no. 1, which provide a picture rich in detail about the activity of the courts. It is not for naught that I described the characteristics of the activity of the judges and the range of mechanisms which provide oversight and supervision of their activity. These demonstrate that, in fact, all aspects of the activities of the system and its judges are transparent and open to the public, or are subject to oversight. In particular, it should be stressed that the transparency of the courts’ activity is not merely systemic transparency. In this most important, most sensitive, and most complex of all tasks—the task of judging— the transparency is personal. The names of the judges appear on every decision that they hand down, without exception, even in cases in which the outcome is hard on one of the parties and the judge is liable to come under fire from the parties or from the public, as well as in cases—even if they are the exception—in which the possibility of the judge’s decision exposing him to some kind of threat cannot be discounted (and this has happened. Of course, in such a case, the judge is not expected to deal with the danger that has been created alone; the solution relates to security measures, but even then, the judge’s name is not withheld).

Against this background, since judges act with transparency, and they are constantly open to criticism which at times may be irrelevant, coarse, and aggressive, relating to their discretion and their professional conduct, it is difficult to accept the appellants’ argument that it is the publication of the quantitative data concerning each judge’s caseload that will engender serious harm to judges, culminating in harm to judicial independence and to public confidence in judges. It is difficult to accept that it is in fact criticism of the output or the speed with which cases are dealt that will be accorded, even by the judges themselves, greater weight and more significance than is accorded to criticism concerning their professional discretion. This position is contrary to the transparency and the mode of conduct that characterizes the system in its regular functioning, in the courtroom and in its function of deciding the law.

92.   The appellants sought to bring up a list of consequences of the publication of the data, at the center of which lies the harm to the judges, to their safety and to their peace of mind, leading to harm to judicial independence and to public confidence in the judges. According to them, it is a near certainty that these consequences will ensue, and therefore the disruption to the orderly functioning of the system is a near certainty. In my view, judicial independence, transparency and public confidence ought to be guarded assiduously in order to ensure the proper functioning of the courts. However, in my view, near certainty of harm to the functioning of the courts has not been proven. I say this, even whilst assuming that the picture presented to the public will apparently be based on the requested information and, therefore, will create only an incomplete picture.

In the framework of the deliberation, I have pointed out that, even if one cannot discount absolutely the possibility of the occurrence of the consequences that the appellants fear, such as harm to reputation, the concern that judges will be evaluated purely on this quantitative data, or that they will be embarrassed, the picture is far more complex and does not permit the acceptance of these arguments as stated. Thus, many of the arguments that were raised sought to point out that the erroneous information will engender a reality in which the judge finds himself persecuted and pressured in a manner that is harmful to his judicial independence, and as a result, to the functioning of the system as well, due to his exposure to inaccurate, embarrassing publications, or because of attempts to use the information against him. And indeed, I cannot discount the possibility that there may be those who seek to use the information in a negative manner, not directed purely at improving the system (in this context I will mention that the fact that the respondents are interested only in information about the judges of the higher courts—the Supreme Court and the district courts—may indeed make one wonder how necessary the information is in order to present the overload of the courts, for it is clear, even to them, that they lack the requisite information for this purpose, and it is known that the heaviest workload falls on the magistrates courts. At the same time, I do not think that too much weight should be given to this consideration, in that the reasons for the request are unknown to us).  As much as I cannot discount such a possibility, neither can I say that it will eventuate. Indeed, as I mentioned, most of the appellants’ arguments contain a speculative dimension. Many of them relate to the fear of negative publicity, but they do not give weight to the possibility of positive or neutral publicity. It must further be assumed that not every unfavorable publication can cause the severe damage as argued.

93.   Given that our concern here is with limiting the right to information, i.e., with the exception and not with the rule, I am of the opinion that the appellants’ arguments do not assign appropriate weight to the high personal, professional, and principled standard that the judge must meet, or to the extremely high level of responsibility that is expected of him (Tzaban, at pp. 148-149; DC 2/88 Minister of Justice v. Judge Asher ben Itzhak Arbel [1988] IsrSC 42(3) 63, 66-67).  This high level of responsibility also involves the ability of the judge to recognize error and to accept criticism. Indeed, exposure to criticism is part of the judicial task, and as I already mentioned in another context, “ … one who applies for a role such as this is also required to be prepared to meet the standard that is necessary by virtue of the nature of the task and the status of the person fulfilling it” (HCJ 2778/11 Kosanovic v. Judicial Selection Committee [Nevo – December 1, 2011]. The fact that the criticism may be harsh, and occasionally hurtful, does not in itself justify a violation of public’s right to information. This is explained well by President Barak in Be’eri:

        Public criticism is important for the judiciary. It ensures, ultimately, the public trust in the judiciary (see S. Shetreet, Judges on Trial         (1976), at p. 185). Judges accept this criticism with love. They understand that in a case that takes place before them, everything is on trial: the litigants, the law, and the judge himself. They know that criticism of them, even if harsh, is part of the “balances” that are required in a democratic society. Criticism, by its nature, is not flattering. It is properly leveled when it is civilized and relevant, and when it is anchored in the facts. But the boundary between what is permitted and what is forbidden is sometimes blurred. The need to preserve freedom of expression on the lawful side of this boundary is likely to justify refraining from bringing an action for expressions that overstep this boundary. The concern about prohibited expressions may well inhibit permitted expressions. The way to fight unfair criticism is by means of fair criticism of that criticism. The way to fight a lie is to expose the truth (ibid., at p. 612).

I will add that I accept, and it is well known, that the judge operates in a difficult, complex arena: the number of cases and their scope is constantly increasing, the fact that parallel to the legal process the parties not infrequently act in the media, and the involvement of various elements who try to influence the legal process—lobbyists, media advisers, public relations agents and others, all place the judge in the center of the stormy, emotional arena, in which the interests and the interested parties are numerous. They place the judge at the front line as the decision-maker. The judicial function involves, by its very nature, confrontations with a complex reality, with pressures of work, both in terms of quantity and substance, and with the gap between the litigation inside the courtroom and the way in which matters are presented outside to the public. In this situation, too, where one cannot discount various kinds of attempts to influence the judge, he is expected to adhere to his commitment to the rule of law, to decide on the merits in a professional manner, and to try to do justice in accordance with the law. Even in an arena that is susceptible to various influences, “…independence, autonomy, loyalty to the law and to one’s conscience are embedded first and foremost in the heart and the mind of the judge; the spiritual resources must ensure that every obstacle is overcome” (Shamgar, at p. 257). In other words, the judicial function requires judges to have strength—a strength that emanates from a commitment to truth, to the law, and to the dictates of conscience. Even if it is not deliberate, it seems to me that the appellants’ arguments assume that judges are liable to be swayed by uncomplimentary publications, even in situations that are not the most extreme. I believe that judges are deserving of trust in their honesty and integrity, and in their faithful and scrupulous fulfilling of their mission. As such, I also believe that their inner strength, and the strength of the entire system, will allow them to cope, even with negative publications, should there be any.

I stress that I do not think that one should bury one’s head in the sand when confronted with the extreme pressures that are not infrequently placed on judges, whether in the pleadings of the litigants in court, whether by the enormous workload, or whether by what appears in the media. It is not correct to belittle the concern about the creation of conditions under which it will be very difficult for the judge to fulfill his task. At the same time, as was explained, I do not think that the publication of the said data is what will confront the judge with such a reality, for even now, he is exposed to publications that can put pressure on him and even intimidate him. There is no option but for the judge to learn to stand up to the pressures, to dissociate himself from external influences, and to decide on the basis of the law and the dictates of conscience.

94.   All of this would not be complete were I not to relate to the flip side of the coin. As is known, “Public confidence is not a given. Its existence must not be taken for granted. Public confidence is fluid. It must be nurtured. It is easier to harm it than to preserve it” (Aharon Barak, Judicial Discretion (5744-1984) 261). Judges are not the only ones with responsibility for public confidence in the courts. The public too, and particularly the media, which wields a great deal of power, has a contribution and heavy responsibility in this context. Criticism of public servants in general, and of the courts in particular, when it is not on the merits and when it is intended to hurt more than it is intended to correct matters, can produce devastating results for society as a whole. Instead of bringing about the correction of defects, for the sake of improvements and increased efficiency, it is liable to erode the foundations on which our system rests. Indeed: “The rule of law involves constant maintenance of the confidence in legal institutions” (HCJ 433/87 Rechtman v. Israel Bar Association [1987] IsrSC 41(4) 606, at p. 610). Therefore, responsibility, sensitivity, and caution are required on the part of those who seek to criticize the courts, their decisions, and their performance. It should be recalled that public servants, too, deserve having their dignity and their reputation preserved in public, and care must be taken to express a fair position that is based in fact, for otherwise, the criticism lacks value.

95.   Finally: the information requested is information to which the public has a right of access under the Freedom of Information Law. It is administrative information held by the courts, in relation to which the legislator’s position that it is subject to the Freedom of Information Law was explicit. The position taken by the appellants, according to which provision of information mentioning the names of the judges will interfere with the activity of the courts, due to its adverse effect on judicial independence and public confidence in the courts, is contrary to the general operation of the courts system, which is characterized by maximum transparency and openness. Given the regular transparency of the system, as well as the pressures and the public criticism to which the judges are accustomed today in relation to the contents of their decisions, I do not find that the harm claimed by the appellants will occur with the degree of near certainty that they were required to prove. Today, too, judges are susceptible to harm to their reputations, their public images, and their peace of mind, and they must confront this risk as part of their job description. When public interest in the details of the activity of the courts is high, and when the activity of judges is characterized by their personal identification with the product of their work—judgments, decisions, and the way in which proceedings are conducted in public—I am not convinced that the appellants’ proposal to expose the data without the names of the judges is satisfactory, and in my opinion, the petition should be granted.

As I have expressed in the framework of this discussion, making a decision on the appeal was difficult for me, mainly due to the concern that the outcome would entail harm to judges who are currently serving, and might embarrass them. I am aware that my judgment will be received by some of my fellow justices, and by the public, too, as a decision that will result in harm to judicial independence. For my part, I believe that the strength of the judges and of the system will stand them in good stead, and that provision of the requested information is likely, at the end of the day, to increase and fortify public confidence in the courts and in the judges—confidence which, as we have said, is essential for the functioning and the vitality of the legal system. At the end of the day, one cannot help but ask: is there a true justification for withholding from, or denying, the respondents, as well as the entire public, details about cases that are awaiting decision in the various courts? For the reasons elucidated at length above, I believe that there is no justification for so doing and that it ought not to be done.

96.   It is precisely out of recognition of the general burden on the legal system, and precisely in view of the transparency characterizing the activity of the courts, and precisely out of a duty to maintain public confidence in the courts system, that it appears that withholding the requested data, which the public has a right to obtain, sends out a hard message of an attempt to keep the details of the work of the courts in the dark. I believe that the system has nothing to hide. I believe that it is right that the public should be made aware of the Sisyphean task, and of the unimaginable pressure under which the judges operate. Precisely out of a conception whereby judges act openly in all aspects of their work, in bright sunlight, would it be incorrect to refrain from handing over the information for reasons that reflect, mainly, a lack of confidence in the strength of the judges and in their total commitment to their mission.

And finally, the words of (then) Justice M. Cheshin should be heard:

The courts, or should we say, the judges of the courts, know that they face judgment on a daily and hourly basis, and as is the way of humankind, one who is on trial acts as befits one standing trial in public. In performing his judicial function, the judge must always regard himself as sitting in a glass house or in a display window that looks out onto the street; every passer-by is entitled to look at him, to examine him and to criticize him - and to praise him and to boast about him. In translating these values into legal language, we speak about freedom of expression and also about freedom of the media as deriving from the public’s right to know. Indeed, the media in its various forms is merely the public’s agent. It constitutes a type of amplifier and magnifying glass for events that happen in a certain time and certain place.  See and compare: MApp 298/86 Citrin v. Tel Aviv Disciplinary Tribunal of Bar Association [1987] IsrSC 41(2) 337, at p. 358. And in this way, the entire public may know if legal processes are being conducted properly. This is the transparency and the review that must accompany all those who hold the reins of authority and powers of enforcement in the state, which is characterized as an open regime (Yanos, at p. 110).

If my opinion is accepted, the appeal will be denied. In order to enable the appellants to prepare themselves in appropriate fashion to implement the judgment, I propose that they be ordered to hand over the data concerning the Supreme Court and the district courts as requested in the petition, relating to the end of the 2015 legal year, no later than December 31, 2015. I also suggest that the appellants be ordered to pay the defendants’ legal fees in the amount of NIS 20,000.

Justice Y. Danziger

I concur in the comprehensive, important, and incisive judgment of my colleague Justice E. Arbel, subject to the following reservations.

My colleague ordered the appellants to deliver to the respondents the information that is the object of the petition, “relating to the end of the 2015 legal year.” I personally think that there is no justification for this “leniency”.

In their request of August 8, 2009 under the Freedom of Information Law, which was submitted to Judge A. Gillon, who served as the supervisor for the Freedom of Information Law in the courts administration, the respondents requested “the most current information you have on the matter, and the information concerning the previous three years.” In their petition, which was submitted on March 24, 2010, the respondents asked for “all the quantitative information concerning the number of open cases being heard by each of the district court judges in the state, and the justices of the Supreme Court, and all the information concerning the time that has elapsed since the opening of each of the open principal cases.” Hence, already in 2009, the respondents asked to receive the most current information that the appellants possessed, as well as the historical information. After their request was denied, the respondents submitted the petition that is the object of this appeal, in which they reiterated their request that they be given current information. As we know, on April 14, 2011 the petition of the respondents was granted, when the District Court ordered that the “requested information” be handed over to the respondents. The delivery of this information was postponed due to the decision of Justice H. Melcer of July 12, 2011 to stay execution of the judgment until the decision on the appeal.

I believe that today, five years after the respondents submitted their request under the Freedom of Information Law, and three years since the date on which the District Court, sitting as an Administrative Affairs Court, ordered the appellants to disclose the information, the respondents’ petition should be granted in full, and the judgment of the District Court should stand as given—including in the matter of the dates to which the information relates.

Underlying this conclusion is the fact that disclosure of updated information, and not “deferred” information, is the relief that was sought in the respondents’ petition and which was granted in the judgment. Similarly, the relief of postponing the time period to which the information relates was not requested by the appellants in their appeal. I am of the opinion that the case at hand does not belong in the category of exceptional cases in which it is justified for the appeals court to grant relief that was not sought in the statement of claim or in the statement of appeal (cf. CA 8854/06 Adv. Corfu v. Sorotzkin  [Nevo – March 20,2008], para. 22).

In my opinion, when the court concludes that an order should be given to disclose information, the default position is full disclosure of the requested information, and the exception is limitation or restriction of the disclosure (cf., e.g., the relief that was granted in AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23, 2012], per Deputy President E. Rivlin, para. 22). As pointed out by my colleague Justice Arbel, information which it has been decided to disclose is information held by the authority in trust for the public and there is no justification, as a rule, for preventing the public from gaining access to its own property. True, in certain cases there may be a departure from this default position. However, that will happen only when weighty reasons for so doing exist: in most cases, these are primarily related to the legitimate reliance of the objects of the information on the situation that pertained prior to the decision concerning disclosure [see, e.g., AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority [Nevo – May 19, 2009], per Justice E. Arbel, para. 42 (Sept. 5, 2009); AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority [2008] IsrSC 63(1) 284, per Justice E. Arbel, para. 65, and per E. Rubinstein, para. 5 (Sept. 23, 2008)].

My view is, that in the present case, reasons which would justify limiting the disclosure do not exist. This is due, first and foremost, to the weighty reasons presented by my colleague, Justice Arbel, for denying the appeal. Similarly, from the moment that the respondents’ petition was accepted by the District Court, the appellants (or any of the objects of the information that was to be disclosed) were not at liberty to rely on the non-disclosure of the information, and they ought to have prepared themselves properly for the possibility that the judgment of the District Court will remain in force, including in relation to the operative relief. It is also clear that the stay of judgment that was issued cannot change this conclusion. The stay of judgment that was granted only “froze” the situation that pertained prior to the issuing of the judgment, but it could not create a legitimate expectation that the judgment will be cancelled or that it will, in itself, bring about a change in circumstances that would justify changing the relief that had been granted. This applies with even greater force, in view of the fact that the District Court determined as fact that the information that was requested is “information that exists in the hands [of the appellants] and its delivery to [the respondents] in its present state can be executed, with relative ease, by way of producing the appropriate computer report.” This finding is also consistent with the letter of Judge Gillon to the respondents, dated December 14, 2009, according to which, “after looking thoroughly into the subjects that you raised in your application, we have answers and data” concerning the information that was requested in the petition. In light of these words, which related to the situation that pertained at the time that the District Court issued its judgment, it would appear that no real hardship will be caused to the appellants as a result of disclosing the most updated information that they possess.

Accordingly, in my view, an order should be issued to disclose the most updated information that the appellants possess, i.e., information relating to the 5774 [2013-2014] legal year. In order to give the appellants time to prepare for the implementation of our judgment, I propose that they be required to deliver the information to the respondents no later than December 12, 2014.

 

Justice N. Hendel

Background

1.     This administrative appeal deals with a petition for the publication of information under the Freedom of Information Law. The information requested is the number of open cases that are being heard in the Supreme Court and the district courts, and the time that has elapsed since each case was opened, together with the name of the judge who is hearing each of the cases.

The Administrative Affairs Court in Jerusalem granted the respondents’ petition (AP 43366-03-10 [Nevo], President M. Arad). My colleague, Justice E. Arbel, in her comprehensive and thorough written opinion, proposed denying the appeal and affirming the decision of the Administrative Affairs Court. Let me state right away that my opinion is different: I think that the appeal should be allowed. My colleague described at length the sequence of events in the proceedings and the pleadings of the parties, and I will not repeat these here. I will focus only on the legal foundation and the reasons that have led me to the conclusion that the appeal should be allowed.

On the Freedom of Information Law, 5758-1998

2.     It is important, at the outset, to once again emphasize the importance of the Freedom of Information Law, and of the purposes underlying it. This Law is based on the understanding that the public information that is held by the public authority is not its private property. In this, the fundamental meaning of being a public servant is emphasized to all. The public servant’s work, and the information that is created in the course of that work, is neither private information nor the property of the state. The information is held in trust for the benefit of the public and as such it must be accessible to the public.

Moreover, the free flow of public information constitutes an important condition—and possibly even a necessary one—for the proper functioning of a democratic regime. The Freedom of Information Law opens the gates of information to every citizen or resident. The Law instills the values of transparency of government. Freedom of information is the basis of the “supreme right” of freedom of expression: without information there is no opinion, and without opinion there is no expression. Free information is also required for the existence of ongoing and relevant public criticism of the activities of the authorities. The general public is thereby given the opportunity to participate in governmental activity. Hence can be understood, the importance of freedom of information for the actualization of the democratic regime as well as for increasing individual confidence in the authority and its activities. It would seem that the information revolution is a major indicator of human development in the last 25 years. The Freedom of Information Law is what its name says it is. The rights of the individual go hand in hand with technological progress (see and compare: AAA 7744/10 National Insurance Institute v. Adv. Yafit Mangel [Nevo – 15.11.2012], para. 5 of my opinion; AAA786/12 Joulani v. State of Israel [Nevo – November 20, 2013], para. 3 of my opinion).

3.     The Freedom of Information Law is a masterpiece of balances. On the one hand, the Law explicitly anchors the right to obtain information (sec. 1 of the Law). On the other hand, together with the declaration of the right to obtain information, the Law recognizes that freedom of information is not the be-all and end-all. The disclosure of information may sometimes entail various negative consequences. It is not only the right to information that is relevant, but also additional rights and interests such as the right to privacy, public safety, and others. Freedom of information is a relative right. Hence the need arises to strike a delicate balance between values, rights, and interests.

The Freedom of Information Law was enacted in 1998. The experience of 16 years has taught, in my opinion, that, although we are at the beginning of the road, the public makes great use of the tools granted to it by the legislator. Many judgments have shaped the parameters of the right to obtain information. The Law supports the disclosure of information, but balance is required, and this finds expression in the provisions of the Law. These provisions specify, for example, when a public authority may not hand over the information that was requested, how information concerning a third party must be published, and so forth. Individual petitions to obtain information, and the fundamental questions that arise within their framework, must be examined through the prism of the provisions of the Law. The purposes underlying the Freedom of Information Law will be realized by means of implementation of the provisions of the Law, which reflect the decisions of the legislator.

We stress this again because the overall context of the case before us cannot be ignored. The Court is in fact being asked to decide, with no choice in the matter, on a petition to disclose information that concerns itself. This kind of complex situation is naturally liable to create problematic incentives: on the one hand, to needlessly bolster the natural tendency not to allow publication of the information, or precisely the opposite—to strengthen the tendency to publish the information only for fear of “what people will say.” The deciding party is likely to be influenced by the ramifications of publishing the material. For this reason, there is a risk of overcompensation  (or as the Americans say a tendency to “bend over backwards”) in precisely the opposite direction. Against the backdrop of the situation described, it should once again be stated that in this petition, as in every petition relating to freedom of information, the court is bound by the normative framework of the Freedom of Information Law and its provisions. If it should be found that the checks and balances established by the legislator do not justify handing over the information, this outcome must be respected, and the converse also applies. The Court is required to apply the Law and to decide on the matter of delivering information that concerns the courts system in the same manner as it treats matters relating to every other authority, examining the particular nature of the authority, as far as that is relevant to the decision. No more, and no less.

Summary of the Dispute

4.     In the framework of the Freedom of Information Law the legislator distinguished between three levels of delivery of information: information which must be provided, information that must not be provided, and information which there is no obligation to provide.

The default position, as stated in sec. 1, is that every citizen or resident has the right to obtain information from a public authority in accordance with the provisions of the Law. Together with this, the legislator listed types of information that must not be provided, such as information whose disclosure constitutes an invasion of privacy or may pose a threat to national security (sec. 9(a)). The third level—information that does not have to be provided—is what concerns us here, as will be explained. This is a category that is more difficult and more complex to apply and to determine. It includes various circumstances in the presence of which, the legislator has determined that the authority has discretion whether or not to respond to a request for information. Thus, for example, the authority is permitted to reject a request to obtain information if handling the request necessitates an unreasonable allocation of resources, or if the information was produced more than seven years prior to its filing and locating it involves substantial difficulty (sec. 8(1)-(2)).

5.     In the present case, the dispute between the parties to the appeal focuses primarily on sec. 9(b)(1) of the Law—information the disclosure of which is liable to disrupt the proper functioning of the public authority. Owing to the importance of the section, I will quote it in full:

        A public authority is not obliged to provide information … the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.In this case, information has been sought about the number of open cases that are being heard in the Supreme Court and the district courts, and the amount of time that has elapsed since they were opened, together with the name of the judge in each case. The question, therefore, is whether disclosure of the requested information “is liable to disrupt the proper functioning of the public authority or its ability to carry out its duties.” According to Justice Arbel’s approach, the answer is negative. In other words: it is not permissible to refuse to provide the information on the basis of the defense established in sec. 9(b)(1).

Justice Arbel’s position rests on several main tiers:  first, according to her approach, near certainty that publication of the information will interfere with the performance of the authority is required.  Secondly, the main aspect that must be examined according to her approach is the concern for harm to public confidence in the legal system, and more precisely: the manner in which the legal system and the judges are perceived by the public. Thirdly, my colleague presented the arguments of the appellants and the concerns about interference with the work of the judges as a result of publication of the requested information. Her conclusion is that even though there is substance to these concerns, they do not reach the probability level of near certainty.

Let me state, already at this point, that I do not necessarily disagree with the first tier, which is the basic legal position concerning the required level of probability for the purpose of application of sec. 9(b)(1) of the Law. For the purpose of our discussion here, I will assume that indeed, near certainty is required, as my colleague holds. However, my opinion is that even according to that strict standard, near certainty exists that publication of the requested information will disrupt the work of the judge. For this reason I propose to my colleagues to allow the appeal, and to determine that the authority was permitted to refuse to provide the requested information.

The Standard of Probability in Section 9(b)(1)

6.     Section 9(b)(1) deals with information whose disclosure “is liable to disrupt” the functioning of the authority. The question is, what is the relevant level of probability for the concern about disruption? This can be presented as a choice between the standard of “near certainty” and that of “reasonable possibility”. The language of the section does not provide clear support for either alternative.

In this context it will be recalled that Deputy President E. Rivlin held that only where there is near certainty of disruption with the proper functioning of the authority will there be sufficient cause to limit the freedom of information (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60  para. 22; AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23,2012], para. 7). On the other hand, Justice I. Amit remarked: “I am not convinced that secs. 8 and 9 of the Law stand at a lower level than that of the right to obtain information anchored in sec. 1 of the Law.” Justice Amit subsequently added that “I would be careful about determining a priori that the balance between the right to know and other opposing interests, such as the security of the state and its foreign relations or the efficient functioning of the public service is a vertical one” (AAA 3300/11 Ministry of Defense v. Gisha [Nevo – September 5, 2012], para. 9, and the dissenting comment of Justice E. Hayut in para. 5 of her opinion, ibid.; cf. Justice Arbel’s discussion of the limitation in sec. 9(b)(4) – AAA 7024/03 Geva v. German [Nevo – September 6, 2006], para. 15).

Personally, in the framework of this case I would leave pending the fundamental legal question concerning the required standard of probability for the purpose of sec. 9(b)(1)—near certainty or reasonable possibility. It appears that the case law leans more towards the first possibility. Of course, an intermediate level that is found at some point between the two extremes is also possible. One way or another, my opinion is that no hard and fast determination should be made at this point, so as not to create further disputes on an issue which in my opinion is not essential to deciding the case before us. For the purpose of the ensuing discussion, I will therefore assume that within the bounds of sec. 9(b)(1), there must be near certainty that publication of the information will disrupt the functioning of the authority or its ability to perform its duties. The question remains as to whether in the present case, the existence of near certainty such as this can be established.

Public Hearing: Substantive Aspect v. Administrative Aspect

7.     The principle of the public hearing is one of the mainstays of the judicial process. It is based on various justifications, including the public’s right to know, improving the quality of judgments, and increasing public confidence in the court (CrA 11793/05 The Israeli News Company v. State of Israel, per Justice E. Arbel (April 4, 2006), paras. 13-15). This important constitutional principle is also entrenched in sec. 3 of Basic Law: The Judiciary, and in sec. 68(a) of the Courts Law. The principle is that the deliberations of the court will be open to the public, and the doors will be closed in exceptional cases only.

The technological advances of recent decades have immeasurably increased the dimension of publicity of the court’s deliberations. Today, every decision—and particularly those of this Court—appears on the internet, almost instantaneously, and is universally accessible. The various data banks allow for rapid and convenient access to all decisions, and include advanced search functions according to key words, chronological segmentation, segmentation according to subject matter, and more. This is as opposed to the situation that prevailed 25 years ago, for example, when, naturally, judgments were almost never computerized, and most were inaccessible to the general public. I remember feeling, at the time that I was appointed as a judge, that in many respects, from a technological perspective, there was no significant difference between the work of the judge then and that of a judge in England 200 years ago—except for the electricity and the air-conditioner. The judge wrote his judgments himself, or was helped by a stenographer—the “typist” of those days. Paper and ink were essential working tools. Lawyers cited judgment that were published in the Supreme Court Reports [Piskei Din], or in which they themselves had appeared, or about which they had heard. It was difficult in the district courts, and certainly in the magistrates courts, to have the judgments printed. It seems that everything has changed since then. The English judge of the 18th century would have difficulty in understanding some of the technological activity that takes place today surrounding the judge. This development has allowed for easy and accessible documentation. We can simply conclude, therefore, that the extent of exposure and publicity of the work of the judge increases over the years. Today, every person can easily obtain judicial decisions; he can peruse them, and learn how each and every judge acts, thinks and rules. The principle of the public hearing is realized also through the presence of large numbers of citizens—who are not connected to the case—in the courtrooms, and broad coverage in a wide variety of media. This is the situation, and it is good that it is so.

8.     In the context of the principle of publicity, a clear distinction must be drawn between two aspects of the judicial task: the legal-substantive aspect as opposed to the administrative aspect. The legal-substantive aspect is concerned with the hearing, its contents, the manner in which it is conducted by the judge, and the decisions and judgments that the judge is required to issue and for which he must provide reasoning. The principle of public hearing, in all its glory, controls this aspect of the judicial function. Of course, the law lays down some exceptions. The courtroom is open, the hearing is public, and the decision is published. But this does not apply equally in relation to the administrative aspect. This aspect is concerned with the administrative wrapping of the judicial task, such as decisions concerning distribution of cases, setting dates for hearings, the rate at which cases are heard, and the date of publication of the judgment. In all that concerns the principle of publicity, no analogy can be drawn from the legal-substantive aspect of the work of the judge to the administrative aspect of his work. The reasons will be elucidated below.

The administrative aspect of the judicial function is extremely important. In truth, over the past twenty years it is possible to discern an
“administrative revolution” in the Israeli legal system. This “revolution” has been possible not only due to technological developments (particularly the dramatic developments in access to computers and the internet), but also in view of the growing awareness of those in the profession of the importance of the administrative aspect of the judicial tasks. In this context, let me mention, for example, the annual reports of the courts administration, published each year since 2006. These reports contain a wide range of data, including detailed lists of names of office bearers and contact information; data concerning the number of cases opened, closed and pending in each judicial instance according to various segmentations; comparative data between regions and courts and so on and so forth. The reports are open for perusal by the general public, and are available, free, on the internet. Another example is the Net Hamishpat [Law-net] system, which enables the submission of documents and perusal of decisions through remote access. I will also mention the growing responsibility of the courts administration, recourse to external consultants in order to streamline the system, the more professional-administrative definition of the role of the court president and his deputies, the convening of meetings of presidents, and further training sessions for judges. Mention will also be made of the directives and the regulations that are published by the President of the Supreme Court, the object of which is to improve and to regulate the administrative aspects of the proceedings in the various courts. These directives relate to administrative topics connected to the efficiency of the system, such as motions to postpone the dates of hearings and consecutive trial dates. This is in addition to frequent meetings between the President of the Supreme Court and the Director of the Courts and the presidents of district and magistrates courts, the compilation of monthly reports concerning the pace of the judicial work, the scheduling of discussions, as required, between the president of the court and its judges, distribution of cases, etc. The direct involvement of the President of the Supreme Court in the administrative aspects of the activity of the courts, unlike the situation that prevails in many other legal systems, is an expression of the importance of the administrative aspect and of the considerable investment in this matter.

9.     Insofar as the administrative aspect of the judicial task is concerned, three theoretical models come to mind. One model totally exempts the judge from managing the administrative aspects of his affairs. According to this model, the judge is assigned cases, and he is asked to hear them and to publish judgments one after another, in the order in which they were assigned.  A second model obligates the judge to deal with all the administrative aspects of the cases on his docket. A third, combined model is followed in this Court, as in judicial systems in other states.

In this combined model, on the one hand, external factors determine the panel on which each judge will sit and which cases he will hear. In the Israeli system, these aspects are within the purview of the presidents of the courts, of the judge that presides over the panel, and to a certain extent, of the court diary as well. These determine not only which cases will be heard by each judge, but also the dates of the hearings and their order, and sometimes even the identity of the judge who will write up the judgment. In a wider circle, some of the directives that are issued by the President of the Supreme Court—which were mentioned above— also shape the agenda of the judge at the administrative level. On the other hand, the judge bears responsibility for the administration of certain aspects of the schedule of each individual case, and at the same time of all the cases on his docket in its entirety. For example, in the case of an accused person who is in detention, or in a civil suit in a fast track procedure, the legislator prescribed that the judge must set a clear timetable for completing the case. Beyond that, the judge must deal with the internal management of his schedule, within the parameters that have been set for him: in cases in which he is sitting as a single judge, he must decide how many cases he will hear every day, at what times and for how long. He must decide how to prioritize the process of writing up judgments and decisions, for example, whether to first devote time to writing a long judgment with important ramifications (such as a case of murder which entails a life sentence for the accused or his acquittal), or instead, to write up a number of judgments each of which deals with a relatively minor financial dispute but which have been awaiting decision for a long time and are clearly important to the parties themselves.

10.   Every judge, every day, all day, is required to handle—and in fact does handle—administrative judicial decisions alongside the substantive judicial decisions. The judge must be aware of this dual responsibility. However, the differences between the two must be emphasized: substantive decisions in all areas of the law are written, reasoned and detailed. They are published. They are made after a public hearing has taken place, conducted by a judge, and after the written and oral pleadings of the parties have been weighed. They are the fruit of the exclusive discretion of the judge. It will be recalled that “a person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the law” (sec. 2, Basic Law: The Judiciary).

The situation is different in relation to the administrative aspects of the judicial task. Here, the judge does not act and decide alone. There are, as we have said, parties other than the judge himself who decide how many and which cases will be heard by each judge at every stage. In addition, it must be recalled that virtually all the daily administrative decisions are made, by their very nature, without hearing the pleadings of the parties, and without reasoned, detailed decisions being published. In fact, these decisions are not written up. To illustrate the special nature of decisions such as these, it will be stressed that we are not referring, for example, to a decision which was made in the framework of an ongoing case to postpone the date of the hearing or to excuse a witness. Decisions such as those are written and published, after the response of the opposing party is received. This is not what we are dealing with; rather, we are dealing with expressly administrative decisions.

Near Certainty of Disrupting the Judicial Task

11.   The respondents, correspondent Hila Raz and TheMarker newspaper, primarily asked for two items of information in relation to each judge of the district courts and of the Supreme Court: the number of open cases, and the amount of time that has elapsed since each case was opened, together with the name of the judge hearing each case.

Publication of the requested information is analogous to shining a powerful spotlight on the administrative aspect of the work of the individual judge. Shining the spotlight is liable, as I understand it, to lead to disruption of the work of many judges and of the judicial system overall, at the level of near certainty. I will discuss six reasons which have led me to this conclusion.

First I will comment that while the petition dealt with information concerning the district courts and the Supreme Court, and not with information about the magistrates courts.  I do not see any reason for creating a real distinction, from the point of view of the considerations for publishing the information, between the courts. I also do not think that such a distinction can be justified. Clearly, denial of the appeal and publication of the information will give rise to additional requests, also in relation to the magistrates courts, the traffic courts, the family courts, the youth courts and the religious courts. In my view, therefore, a uniform outcome is inevitable. It is not superfluous to note that the scope of the cases in the magistrates courts is larger by many degrees: thus, for example, in 2013, more than 600,000 cases were opened in the magistrates courts (including the family and traffic courts), compared to some 60,000 cases in the district courts (see: The Judiciary in the State of Israel, Report for the Year 2013 Pursuant to the Freedom of Information Law 5758-1998 (2013): hereinafter: Report of the Judiciary (2013)).

a.     Publication of the material will harm efficiency

12.   First, it is hard to believe that publication of the requested information per se will put an end to interest in the subject. On the contrary, experience shows the opposite to be true: publication together with names is expected to increase and strengthen the preoccupation with the administrative aspect of the task of judging, but in a particular way which is not beneficial. Therefore, I am not dismissing the fundamental intention of the respondents: to create public awareness and public involvement in the subject of judicial overload. My reservation relates to preoccupation with the administrative aspect through the requested prism. This way will create a certain dynamic.

As a result of the publication, interest will grow like a snowball, because these are not dry figures, but names and faces. Upon publication of the information, many questions can be expected, with near certainty, to arise: why is a particular judge given too many or not enough cases, and why does another judge take so long to publish decisions in so many cases? The questions can also be expected to arouse a desire to provide answers. Assume that a particular judge finds himself at the bottom of the chart, for example, because the number of open cases on his desk is the highest. This judge can be expected to want to explain matters. Pressure will be created to justify the existing situation, or alternatively, to change it at all costs. One way or another, it is clear that publication of the information requested by the respondents will lead to increased preoccupation of each judge with justifying and defending himself in relation to the administrative aspect of the judicial task, at the expense of the substantive aspect. More precisely, there is no need to relate to the harm to each and every judge in the system. It is sufficient that near certainty exists of harm to a particular judge or to certain judges. This harm will have an impact on the functioning of the whole system, in view of the fact that every judge in his courtroom deals with the entire world of a specific case between individual litigants.

This Court “dwells among its people.” It seems that anyone familiar with Israeli reality cannot avoid the conclusion that publication of the information will invite pressures, and these will lead to unnecessary activity that will, with near certainty, be detrimental to the entire legal system. The difficulty arises in particular because this is an administrative matter, rather than a substantive matter, connected to the task of judging. It is presumed that the court, when it is about to convict a person of a criminal offense or to find him liable in tort, will not be affected by various media publications concerning substantive matters. This is irrespective of the wider issue of sub judice. However, the publication that we are dealing with relates to administrative aspects—how many cases remain open on the desk of each judge and so forth. As was explained, these are aspects for which there is no clear legal answer, and they are not necessarily decided according to the dictates of a judge’s conscience. If in relation to every administrative aspect it would be necessary to conduct a hearing, to hear pleadings, to formulate a reasoned decision, to expose the decision to review on appeal, and subsequently, to also deal with publication of the information, with all the implications therefrom—efficiency will not benefit thereby. The opposite is true. Many resources, which as it is are insufficient, will be diverted to unnecessary channels. The individual judge will be forced to devote more time to clearly administrative decisions and to defending his decisions—precious judicial time which is not to be found in abundance. With all the understanding for the desire of the respondents to contribute to efficiency—publication of the requested information will bring about precisely the opposite result. With the present load, the addition of this component is liable to disrupt the proper functioning of the activity of the system or its ability to perform its tasks.

My colleague, Justice Arbel, discussed the fact that publication of the data is also liable to have the effect of causing embarrassment. It must be stressed: it is not the emotional aspect that is of interest, but rather, the legal consideration of interfering with the judicial performance. This interference will occur, with near certainty, as a result of the fact that the judge and the legal system as a whole will be required to allocate resources to over-occupation with administration and with justifying administrative decisions at the expense of dealing with the substance. Another task will be created, keeping many parties busy for long periods of time. This task will create a certain blurring of the boundaries between the substantive and the administrative. These latter decisions are not public, the reasoning behind them is not elaborated upon; in fact they are not written at all. It is good that it is so. The reason for this, inter alia, is that these are not individual decisions of the judge, but systemic decisions that are made in a complex procedure in which many elements are involved. The individual judge is not the dominant element in this process, and certainly not the factor which makes the decisions.

b.     Frustration of Respondents’ Declared Purpose

13.   Section 10 of the Freedom of Information Law states:

        In considering a refusal to provide information under this law, based on the provisions of Section 8 and 9, the public authority will take into account, among other things, the interest of the applicant in the information, if cited in the request…

We see that according to the legislative requirement, the interest of the person requesting the information must sometimes also be considered. This is so when secs. 8 and 9 apply to the case, i.e., when it is a matter of information that the authority may refuse to provide. In such a case, refusal to provide the information rests, as stated, on the reasons specified in sec. 9(b)(1) of the Law. Hence, the interest of the respondents in the requested information, according to the position they presented in their request, must also be taken into account.

In the present case, the respondents explained at the beginning of their application that they are submitting it “in view of the supreme public importance in relation to the workload … that is imposed on the courts system.” Thus, the declared interest of the respondents in publishing the information is the workload of the courts system and its public importance. An investigation into this subject has two parts: one is establishing the existence of overload and its extent. The second is recognition of the fact that this is an undesirable phenomenon from the point of view of the functioning of the system, which certainly ought not to be exacerbated. As for the first part, the focus of the investigation is “the courts system”. What the respondents want is to expose the problem of overload. Insofar as this is a systemic matter, the courts administration agreed to deliver the details. As for the second part, as I explained, publication of the information pertaining to the personal performace will, in my view, achieve the opposite of easing the problem of overload. Not only will the load not lighten, but resources that are dedicated today to time management and to the writing of judgments and decisions. and in general to lightening the load, will be diverted to dealing with these publications and with the shockwaves that are created.

Indeed, the declared interest is the overload of the system. Systemic data was and will be supplied by the appellants. However, the petition deals with an additional dimension that is not systemic, i.e., that of the individual judge. In this context there are three reservations: first, this dimension is not consistent with the declared interest. Second, the name requirement is liable to affect the functioning of the authority. I have dealt with these reservations elsewhere. Third, the requested information on the individual level does not contribute to an understanding of the issue of overload, and is even liable to mislead. I will now elaborate on this reservation.

The publication of data in relation to each judge concerning the number of open cases, and the amount of time over which they have been open, is a double-edged sword: on one end —this is a simple, absorbable item that can be easily understood and internalized. On the other end —this item does not correctly reflect the complex reality. By way of illustration, it will be recalled that recently, the Israeli Courts Research Division published the case index for the assessment of judicial workloads (available at http://elyon1.court.gov.il/heb/Research%20Division/Research.htm ).  The purpose of this index is to try to correctly assess the workload on the various judicial instances, in order to develop effective tools for the allocation of resources, the regulation of caseloads, and improved management of the courts. The index that was developed relates to some one hundred types of procedures that come before the magistrates courts, the district courts, and the regional labor courts. For each type of procedure, the average time invested in the case is measured.  These units of time are translated into weighted units. For example, the minimum weight—1—is accorded to orders of search and entry in detention proceedings in the magistrates courts. The maximum weight—1826—is given to cases of serious felonies that are heard before a bench of three judges in the district court. The weight of each case is determined according to two main parameters: the number of events that comprise the judicial work in a particular case, and the complexity of the events (from the point of view of the time required). The data concerning the number and complexity of the events was obtained, inter alia, through a qualitative methodology, by a group of judges, and a quantitative analysis of the computer data and of representative samples of cases.

I have discussed this somewhat in detail in order to explain one very important point: the information requested by the respondents in the present case, which they are presumably interested in publishing, is liable to be misleading; in fact, it cannot be anything but misleading. Due to the huge variety of judicial procedures, extremely complex statistical work is required in order to compare workloads. There are cases which can be wrapped up in one short session. There are cases which require dozens of sessions in order to hear all the testimony—for example, a complicated criminal case with many witnesses, or a case in torts on grounds of medical negligence, with many expert witnesses.

Indeed, as the famous American author Mark Twain remarked (in the name of the British Prime Minister, Benjamin Disraeli) with a humor that contains some truth: “There are three kinds of lies: lies, damned lies, and statistics.” Statistics are liable to mislead even in the context of the information with which we are concerned here. The summarized figures—the number of cases and the time that has elapsed—do not reflect the complex, complicated reality. As a result, superficial publication of the data as requested by the respondents will not properly fulfill the declared purpose of exposing the problem of overload, but rather the opposite: it will engender a superficial focus on numbers that do not accurately reflect what is happening. Instead of allocating time and resources to an accurate and precise foundational treatment of judicial overload, an unnecessary pursuit after the “magic numbers” that are to be published will be initiated, and what was supposed to be a blessing will become a curse.

Of course, statistics can be taken in various directions. But what is special here is that the Freedom of Information Law specifies the interest of the person requesting the information as a consideration. The respondents mentioned in their application the burden on the courts. This is an important, legitimate interest. But to the same extent, it is legitimate to ask whether the requested information indeed serves that interest. Had the Law made publication of the information obligatory, this consideration would not be relevant. But, as stated, that is not the situation.

c.     The Position of the Appellants in the Present Proceeding: Anonymous Information as Opposed to Name-Bearing Information

14.   In the course of the peregrinations of this case, the appellants agreed to publish the requested information without mentioning the names of the judges. It should be clarified that the intention was to publish all the information—the number of open cases and the amount of time for which each case has been open—segmented according to judges, but without identifying them. The respondents, on the other hand, insist on publishing the names of the judges. The dispute, therefore, boils down to the question of whether to publish the names of the judges.

This definition of the dispute highlights, in my opinion, another genuine difficulty in accepting the respondents’ position. As stated above, the information is sought against the background of the issue of the burden on the courts system. It seems to me that this goal could be realized in a satisfactory manner by publishing the information anonymously, as the appellants suggest. This suggestion allows for a comparison not only between courts but also between judges. It is difficult to see the marginal benefit—from the point of view of the judicial workload, which is the main thing—in publishing the information with names, as requested by the respondents. At the same time, the marginal cost as a result of publishing the named information is high, for the reasons specified above: publication of the names of the judges together with the statistics relating to open cases will lead, with near certainty, to a situation in which many judges will not be content with their place on the list. In the nature of lists, there are those who are at the top and those who are pushed to the bottom. If the name-bearing publication would bring about greater efficiency—so be it. But I think that the opposite is true. There would be increased, superfluous preoccupation of the whole system with the personal side of these administrative aspects, in a manner that will be detrimental to efficiency and will only increase the burden.

d. Delays, Workload, and Dealing with them: the Individual Level vs. the Systemic Level

15.   A fourth, no less important, aspect is that of the distinction between two levels of the problem of judicial overload or delays: the particular work of each and every judge, as opposed to the functioning of the system as a whole. Each level requires handling on a different level.

Let me put it as follows: to the extent that a problem of overload focused on a specific judge occurs, alternative mechanisms designed to resolve the difficulties already exist. As compared to these mechanisms, the marginal benefit that will ensue from publication of the requested information is not high. On the contrary: in certain senses, the publication will even undermine these existing mechanisms. Alternatively, to the extent that there is a systemic problem of judicial overload, publication of the requested information will only increase the bewilderment and confusion. The publication will direct the spotlight on the performance of the particular judge, identifying him by name, and thus it will divert the public and professional conversation from the main subject to the marginal one. Instead of the cooperation that exists between the parties administering the legal system—chief among them the presidents of the courts and the courts administration—with a view to improving the performance of each judge, tension will be created between the individual judge and his superiors and other elements in the system. Every decision that is made under these circumstances, e.g., changes in assignment of cases, will be susceptible to public criticism, and so it continues. Decisions such as these are also liable to affect other judges, and a chain will develop of unnecessary reactions, both in terms of time and in terms of human resources.

16.   I will discuss, very briefly, the main alternative mechanisms for dealing with individual problems of judicial conduct.

In one circle, the president and deputy president in every court devote much time and resources to dealing with the administrative aspects of the work of the judges who are serving in that court. In another circle, the courts administration and the President of the Supreme Court issue various directives which are designed to improve efficiency and the administrative aspects of the work of the courts. These circles are also involved in the handling of problematic cases.  I have discussed all of these above.

Another important mechanism is the Ombudsman for Complaints against Judges. My colleague, Justice Arbel, reviewed at length the modus operandi of the Ombudsman (paras. 43-44), and I will not repeat what she said. I will point out only that an individual who thinks he has been waiting too long for a judgment to be handed down in his case, or alternatively, who thinks that he has been waiting a long time for a date to be set to hear his case—is at liberty to approach the Ombudsman and to report this to him. The Ombudsman examines every complaint on an individual basis, and if necessary, even solicits the reaction of the judge about whom the complaint has been made—all by virtue of the mechanisms provided in the Ombudsman’s Law.

 

e.     Paving a Detour Route

17.   Section 14(a)(12) of the Freedom of Information Law states:

The stipulations of this law shall not apply to the following agencies, or to information created, accumulated, or collected by them: … (12) the Ombudsman for Complaints against Judges—under the Ombudsman for Complaints against Judges Law, 5762 -2002.

Accordingly, the information concerning complaints that are investigated by the Ombudsman remains confidential with respect to names. That is the point: acceptance of the respondents’ position and publication of the requested information are liable to provide a “detour route” that will erode the provisions of sec. 14(a)(12). Individual complaints that were lodged with the Ombudsman will indeed not be published together with the name of the judge, but other sensitive information about the judge—such as the number of open cases he is dealing with and the time they have taken—will certainly be published. Clearly it is possible that there will be overlap between the information that is published and the information that was supposed to be confidential by virtue of the provisions of sec. 14(a)(12).

It is true that this reason alone would not constitute cause for allowing the appeal before us. However, it is important to understand that sec. 14(a)(12) reflects a principled determination of the legislator concerning treatment of the individual matter of a judge who has mishandled, or at least allegedly mishandled, his cases. The legislator prescribed that, despite the basic principle of freedom of information, in such a case, disclosure of the information to the public should be restricted. This is mainly for reasons to do with the delicate balance between oversight, which also relates to the administrative handling of a particular case—for example, why has judgment not been handed down—and the major public interest in maintaining judicial autonomy. This balance was intended to achieve efficiency. It is the proper balance, as determined by the legislator. This determination must be respected.

This matter is not only formal but also purposive. The legislator determined that all information produced in the framework of the Ombudsman’s investigation of a complaint about a judge does not come under the purview of the Freedom of Information Law. This determination represents a position that may have ramifications for the present appeal. In all that concerns substantive judicial decisions, the court, including the individual judge, is exposed to public oversight. A judgment allowing an appeal is an open indication of mistakes that occurred in the decision of the lower court, and includes of course, the name of the judge whose decision is the subject of criticism. The substantive aspect of the judicial task must be public, as a component of the power of the principle of public trials.

The situation is different with respect to expressly administrative decisions. Experience teaches us that publication in the town square is not the best and most efficient way to solve a problem of this sort. Patently administrative problems of the individual judge should be solved by other means. This is a constructive approach that is applied in practice. Publication in such cases will not contribute to, and is even liable to hinder, the finding of an effective solution. Take the example of a judge who invests many hours in his work, but has difficulty in keeping up with the pace. Another judge does not manage to complete the hearings during regular hours. As stated, the president of the court is supposed to be aware of the situation. It may emerge that the judge is slow in a particular kind of case as opposed to other cases, and thought should possibly be given to changing the kind of cases that are assigned to him in the future. Alternatively, it may be that easing the case-load of the individual judge for a short period is warranted, in order to allow him to close the gap.

This point is emphasized for two reasons. First, the administrative aspect of the judicial task at the level of the individual judge is indeed subject to oversight. Secondly, the legislator determined that information must not be disclosed concerning a complaint that is under investigation by the Ombudsman. This determination reflects the proper balance between the different rights and values that are involved, insofar as the individual treatment of problems that are encountered by an individual judge is concerned. This balance, in my opinion, also requires that name-bearing data indicating a particular inability of the individual judge to cope with his caseload should not be published. In the framework of the balance, the principle of judicial independence is also taken into account. It is extremely important to preserve this principle in order to allow the system to function properly. Preservation of this principle should be combined with the aspiration to improve the administrative aspect.

f.      Comparative law

18.   Justice Arbel discussed at length the situation in other countries, particularly in the United States, where partial information about judicial caseload is published, particularly in the federal courts system. I will make two comments.

First, it is important to emphasize the major finding that emerges from the review: in most Western states, data about pending cases is not published, a fortiori data about open cases including the identity of the judge hearing the case (see para. 86). Of course, an automatic analogy cannot be drawn. Every legal system stands on its own. However, one cannot ignore the fact that insofar as publication is concerned, the “nays” outweigh the “yeas”. In other words: the most common approach is not to publish information of the type requested here by the respondents. In the United States, too, it would appear that the reference is to federal judges only, or at least to only a few additional individual states.

Second, Justice Arbel pointed out that in the United States, information pertaining to the caseload of the judges of the federal system is published frequently, pursuant to the Civil Justice Reform Act 1990. Pursuant to this Law, semiannual reports are issued, which include various lists of cases in which no decisions have been rendered, according to the names of the judges. The comparison with the United States is tempting at first glance. In actual fact, however, the comparison is misleading, mainly due to the significant differences between the structure of the federal courts and the structure of the courts system in Israel.

There is an enomrous gap between the American legal system and the Israeli legal system regarding judicial caseload. For example, the United States Supreme Court—on which nine justices serve—hears oral arguments in approx. 100 cases annually. Incidentally, there are high courts in other countries (such as New Zealand) that hear less than half that number. For the sake of comparison, in 2013 in the Israeli Supreme Court, over 3,500 major cases were opened, i.e., cases that are heard before a bench of three of more justices: petitions to the High Court of Justice and civil, criminal or administrative appeals (Report of the Judiciary (2013), p. 18).

The gap is even greater in relation to the lower instances of the federal courts (district judges and magistrate judges). Thus, for example, the latest report—published in 2013—shows that in the United States District Court for the District of Columbia ., the number of cases stood at 344, and 24 judges served the district, i.e., approx. 14 cases per judge. In districts comprising the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico), the number of cases was 1,210, with 60 judges serving—approx. 20 cases per judge. In Israel, as opposed to this, the figures are completely different. To illustrate, below is a table of the number of cases per judge in the Israeli district courts, correct for 2011 (based on the Freedom of Information Law report for that year):

 

District	No. of Judges	No. of Cases	Cases per Judge
The North	14	3655	261
Haifa	27	7489	277
Tel Aviv	52	13886	267
Jerusalem	25	4430	177
The South	20	3834	192
The Center	26	6456	248

 

A quick glance at the table is sufficient to reveal the large gap—of almost incomprehensible dimensions—between the situation in Israel and the situation in the United States. Of course, as explained above, the numbers themselves may be misleading. A careful examination of the matter requires that distinctions be drawn between different types of proceedings, and that they be accurately weighted. Incidentally, statistical work such as this is liable to emphasize with even greater force the magnitude of the burden imposed on the district courts in Israel as opposed to the federal courts in the United States, mentioned in the report. For example, in Israel the district courts have exclusive jurisdiction to sit as a court of first instance in cases with multiple witnesses, such as the felonies of murder and organized crime. One way or another, the numerical gap is so wide and significant that it is difficult to ignore. It is certainly not obvious that it is possible to rely on a comparison with the situation in the federal courts as in indication for the question that arises in this case.

It should be added that in the federal courts mentioned above, it is common for the judge to sit in the courtroom relatively infrequently, e.g., once a week for several hours. The rest of the time is devoted to studying the case and writing decisions and judgments. In Israel, as opposed to this, it is not uncommon for the judge to sit in the courtroom every day of the week for many hours. In fact, in the last twenty years, judges have tended to spend even more hours in the courtroom than in the past, and hearings are scheduled for later hours as well. This is not surprising. The number of cases has grown. The difference between the judge who hears 20 cases and the one who hears 200 cases is clear. For the numbers mentioned with respect to the US federal judge, as presented in the Report, the demands  of administrative work are not great. In fact, the judge can almost be exempt from dealing with the subject. An outcome whereby a judgment is delayed for a long time is liable to demand an explanation. In Israel the situation is different. Here, as described above, the judge must devote considerable resources to managing his own schedule. As a result, if every judge were also to be required to devote resources to justifying his administrative conduct, even more time would be taken up, causing disruption with near certainty. In my opinion, therefore, not only is this comparison out of place, but it only serves to highlight the difference with respect to the administrative load the judge bears.

Conclusion

19.   This case deals with the publication of information about the legal system. The decision in this petition must be made in accordance with the provisions of the Law and the balances it embodies. In particular, the legislative determination whereby the authority is permitted not to publish information that is liable to disrupt its proper functioning must be implemented.

The courts system is special in the extent of the publicity that characterizes its work. In all that is connected thereto, the developments of recent years are to be welcomed. However, in the present case we are dealing with the publication of information connected to another type of judicial endeavor, specifically the administrative aspect of the judicial task, and more accurately: a personal focus, done by naming each judge, on the management aspects of each and every judge’s work. This aspect is administered as a team by the judge and other elements in the system. It is fed by factors not within the judge’s control, such as the number of cases and the number of judges in the court. The individual judge does not select which cases he will hear, their degree of difficulty or their variety. The great number of proceedings in the Israel legal system requires the judge to make daily administrative decisions, e.g., which judgment to write up first, and even which case to schedule for a hearing at 8:30 a.m. and which at 11. These decisions, as opposed to the ordinary work of the judge, are by their nature not the outcome of a hearing, they are not reasoned in writing, and they are not published. It is clear that no public dialogue can take place with the parties on these subjects.

The legal system invests much effort in improvement. Placing the spotlight on the individual judge, as if he were the sole or dominant cause of the overload of the courts system, will only motivate him to respond, to explain, to justify, and to defend himself. Named publication of the list of open cases, a type of judicial “hit parade”, will only increase the tension and the pressure not to fall to the bottom of the chart. Nothing good will come of this. This is an important point, in view of the declared interest of the respondents in the publication of the information—the overload in the courts system, and the fact that this is a matter within the discretion of the authority. An honest analysis of the situation leads, in my opinion, to the conclusion that there is near certainty of the fact that publication of the information will disrupt the proper functioning of the courts system or with its ability to perform its tasks. Therefore, and considering the absence of a contribution made by publication of the information, the decision of the authority was within its competence and it meets the criterion of reasonableness. I will add that alternative solutions are applied in practice, involving the investment of vast resources and with a view to dealing with the exceptional caseloads in the various courts. At the same time, the appellants have agreed to publish the requested information anonymously, i.e., without appending the name of the judge. This is an appropriate outcome that achieves a balance between the different interests that rest on the scales.

The result is that from a legal point of view, there is no justification for overturning the decision of the appellants not to hand over the requested information. This is because there is near certainty of the fact that publication of the information will detract from efficiency and will even frustrate the respondents’ purpose; there is insufficient justification for the respondents’ insistence on publishing the information together with the names, as opposed to anonymously; the concentration on the individual judge misses the point—the systemic aspects of judicial overload; publication of the information will harm the alternative mechanisms prescribed by the Law and by custom; there is no relevant basis in comparative law for the publication of information of the type that was requested—possibly even the opposite. I will once against stress that it was the legislator who determined that where there is a concern about disruption with performance, there is no obligation to hand over the material. This is an appropriate consideration, prescribed by the legislator. And just as this consideration is relevant to other authorities in the State, it is also relevant to the Court.

Finally, my view is that the appeal should be allowed, and that the judgment of the Administrative Affairs Court should be overturned. Instead, it should be ruled that the petition is denied. This is subject to the declaration of the appellants concerning the delivery of information without mentioning the names of the judges, as specified above.

 

Justice E. Rubinstein

1.     My colleagues, Justice Arbel and Justice Hendel, disagree fundamentally about the decision in the appeal before us. This disagreement is now confined, according to the positions of the parties in the case, to the question of whether, in addition to the information that the appellant is prepared to hand over, concerning the number of open cases before each judge in the Supreme Court and in the district courts, and the time that has elapsed since each case was opened, the names of the judges will also be specified. Let us recall: the respondents’ request for information that would include all the above was made “in view of the supreme public importance of the burden imposed on the courts system,” and the District Court accepted their position.

2.         My colleague Justice Arbel’s discussion was wide-ranging and comprehensive, with an analysis of the Freedom of Information Law and the case law that followed in its wake; she described the special nature of the judicial enterprise, the foundations of judicial independence and the various institutional review mechanisms as well as those of the public. Subsequently, my colleague considered the exception in sec. 9(b)(1) of the Freedom of Information Law, whereby “A public authority is not obliged to provide information in any of the following categories: 1. Information, the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.” The implementation of this section lies at the heart of the dispute. Justice Arbel found that the criterion for applying the reservation is “near certainty that publication of the requested information will interfere with the activity of the judiciary” (para. 57). She also discussed difficulties—the fact that indeed, delivery of the requested information would create an incomplete picture concerning the overload; nevertheless, in her opinion, the autonomy of the judges reduces the force of the appellants’ argument as to the distinction between handing over institutional information and personal information (para. 65). It was further stated that efficiency cannot be a major index for assessing a judge’s performance, although it must be taken into account (sec. 69), and in any case, data that is made available for publication can be accompanied by explanations, at the discretion of the system (para. 70). Justice Arbel discussed the concern about harming the judges by embarrassing and denigrating them and damaging their reputations, and she believes that this concern is not baseless (para. 75), but in her opinion, at this stage they remain concerns only, and that the conflict will not necessarily be harmful to the extent of constituting libel—the publication may even strengthen public trust in judges (para. 76). My colleague does not think that criticism, even if it is liable to be harmful, could impact the decisions of the judge on their merits (para. 78); in her opinion, “their inner strength, the way in which they conduct themselves, and their belief in the justice of their path will enable the judge to cope with the publications and to continue fulfilling their tasks faithfully” despite concerns about misuse of the information (para. 82). Justice Arbel does not accept the appellants’ claim that the existence of the institution of the Ombudsman for Complaints against Judges—under the Ombudsman for Complaints against Judges Law, 5762-2002— detracts from the need for public oversight (para. 88). Finally, she believes that for the sake of ensuring public confidence, and despite the concerns, the information ought to be handed over (paras. 92-95) and the appeal denied.

3.     My colleague Justice Hendel, in his interesting opinion, leaves pending the question of the standard required for the application of sec 9(b)(1), and he is prepared to assume, for the purposes of this case, that we are dealing with near certainty (para. 6). According to his approach, the administrative (as opposed to the substantive) aspect of the work of the judge and the publication about it, which is the object of this case, is liable, with near certainty, to disrupt the judicial task, by detracting from efficiency, due to the pressures created and the embarrassment caused (para. 12); the declared purpose of the request relating to the overload will be frustrated, for the statistics are liable to be misleading (para. 13); the existence of alternative mechanisms, including oversight of judges on the part of the presidents and deputy presidents of the court and by the Ombudsman for Complaints of Against Judges (para. 17) lessen the need for publicity. According to Justice Hendel, there already is a great deal of publicity in the legal system, whereas the requested publication will, with near certainty, disrupt the functioning of the system (para. 19). Therefore, in his opinion, the appeal should be allowed.

4.     In this case I found myself in a dilemma, caught “between a rock and a hard place”. My dilemma was this: on the one hand, we live in an age of transparency. The Freedom of Information Law has been with us for sixteen years; these years parallel, more or less, the virtual revolution, which brought the internet into our world, and the world no longer operates as it used to. The freedom of information revolution accompanied the information revolution—they arrived hand in hand. Enormous amounts of information are to be found in the virtual network, and if we are to be absolutely honest, the data that the appellants have agreed to hand over in this case open a door —so it seems to me—which affords quite easy access to the names of the litigating parties themselves, even if they are not published; this was also argued by counsel for the respondents in the hearing before us, and he mentioned online anonymous comments (talkbacks).  Furthermore, the judiciary, owing to the sensitivity of its task and what is required for public confidence, ought to be as open as possible to criticism. As opposed to this, the legislature’s position in the Ombudsman for Complaints against Judges Law, was that there must be a certain measure of caution in the publications: the law as a rule came down against publishing the names of the objects of the complaints, except for a narrow window that was opened in sec. 13(d), by a joint decision of the President of the Supreme Court and the Minister of Justice. Primarily, I believe that there are quite a few judges—of course, not all—whose work is nearly certain to be disrupted by the disclosure, in accordance with the present criterion. Moreover, the subject on which the request of the respondents focused is overload. Apparently, for the purpose of examining overload, the names of the judges are not necessary; the information that the appellants are prepared to deliver would suffice. Indeed, the Freedom of Information Law does not require a “motive” behind the request for information; sec. 1 states that “Every Israeli citizen and resident has the right to obtain information from a public authority, according to the stipulations of this law.” But again—the declared purpose of the respondents can be satisfied in its entirety by the data whose delivery is not in dispute. The question is whether “the trouble is … worthy that the king be disturbed” (Esther 7:4).

5.     For the purpose of this case, I too am prepared to adopt the standard of near certainty, as proposed by President Aharon Barak in his lecture, “Freedom of Information and the Court” (with the publication of Professor Z. Segal’s book The Right to Know in the Light of the Freedom of Information Law (2000); and see also his article of that name, Kiryat Hamishpat 3 (5763-2003) 95, 103). He described the requirement as including a “severe, serious, and grave disruption …”. Given such a criterion, which path should a person choose? I would add here that in relation to the present matter, Prof. Segal also writes (p. 199) that near certainty is required, and personally he is in favor (pp. 143-144) of publishing the names, but he also sees value and importance in publishing without names.

6.     For love of Jewish law, I will begin with several Jewish law sources relating to the judge, as cited in my lecture, “An Understanding Heart—On the Judicial Enterprise” (medical conference in Haifa, chaired by Prof. Moshe Feinsod, January 3, 2012). The Bible describes the qualities required of judges: “… you shall provide out of all the people able men, such as fear God, men of truth, hating unjust gain … . And let them judge the people at all seasons” (Exodus 18:21-22). The Medieval commentator Rabbi Abraham ibn Ezra explains in his short commentary, “Able men – who have the strength to suffer … fear God—that they will not acquire a bad reputation, men of truth—that they are not false, hating unjust gain—money.” Rabbi Shlomo Itzhaki (Rashi)  explains: Able men—rich men who will not need to flatter or to show favor; men of truth—these are people commanding confidence, who are deserving that one should rely on their words; hating unjust gain—men who hate (pay no regard to) their property when it is to be made the matter of a law-suit, in accordance with what we say (Babylonian Talmud, Tractate Bava Batra 58b): “Any judge from whom one has to wring the money [he owes only] by means of a law-suit is no [fitting] judge .”  Scripture also said of judges, through the words of Moses: “Hear the causes between your brothers, and judge righteously between every man and his brother and the stranger that is with him. You shall not respect persons in judgment, but you shall hear the small and the great alike; you shall not be afraid of the face of man; for the judgment is God’s” (Deuteronomy 1:16-17). The closing words of these verses is saying that it is the Lord who gave the law, and there must therefore be no deviation from it; however it may also be interpreted as meaning that the Lord is, as it were, present in the courtroom: “God standeth in the congregation of God …” (Psalms 82:1; see the commentary of Aharon Mirsky, Da’at Mikra, Devarim [Deuteronomy] on this verse).

The sages dealt extensively with the judicial task and they said (Babylonian Talmud, Tractate Shabbat 10a): “Any judge who renders a judgment that is absolutely true, even [if he sits in judgment for only] one hour [i.e, a short while] is considered by scripture as if he became a partner with the Holy One, blessed is He, in the act of creation.” To judge absolutely truly is a great virtue, as Justice Menachem Elon said (see “These are Obiter Dicta … They are Fundamentally Flawed and Should Not be Followed”, in M. Mautner, A. Sagi & R. Shamir (eds.), Multiculturalism in a Democratic and Jewish State (1998), 361, 361; cited also in Neshama Yetera Bamishpat , a collage of Elon’s writings by Dr. (now Professor) Aviad Hacohen (2004), pp. 25-26).

The sages also said, “Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan, A judge should always view himself as though a sword is resting between his thighs and Gehinnom is open beneath him” (Babylonian Talmud, Tractate Sanhedrin 7a). Maimonides (Sanhedrin 23:8-9) formulates this as follows:

A judge should always view himself as though a sword is resting at his neck and Gehinnom is open beneath him: He should know whom he is judging, before Whom he is judging, and Who will ultimately exact retribution from him if he deviates from the path of truth … Whenever a judge does not render a genuinely true judgment, he causes the Divine Presence to depart from Israel….

Incidentally, there were sages of the Mussar Movement who viewed each person as his own judge: “Judges and officers shalt thou make thee in all thy gates” (Deuteronomy 16:18) means the gates of a person’s body—his eyes, ears and mouth. This applies a fortiori to a judge, who under Jewish law, as well as in our times, is subject to strict laws of professional ethics.

The sages also said: “Do not judge your fellow until you have stood in his place” (the words of Hillel the Elder, Ethics of the Fathers 2:4, and see the article of Dr. Aviad Hacohen, “Do Not Judge your Fellow Until You Have Stood in his Place”, Parshat Hashavua 351 (5769)); true, there is a dispute as to whether this mishnah is addressed to judges, but one could certainly invoke it in the context of “First correct (lit., adorn) yourself and then correct (lit., adorn) others” (Babylonian Talmud, Tractate Bava Metzia 107b), and as cited by Hacohen from the commentary of Rabbi Ephraim of Luntschitz, “Kli Yakar” on the verse, “Judges and offices shalt thou make thee” (Deuteronomy 16:18), “Correct (lit., adorn) yourself first”, and only then, “and judge the nation”—“correct (lit., adorn) others”.  All this is from the abovementioned lecture, the name of which is taken from the prayer of King Solomon (I Kings 3:9).

See also the article of Rabbi Yair Kahan, “Zion will be Redeemed with Justice” (website of the Har Etzion Yeshiva, Shoftim, 5774), which deals with the obligation to appoint judges in our land and in diaspora communities, and ends with the verse that was often quoted in 1948, with the Establishment of the State of Israel: “Zion shall be redeemed with justice, And her penitents with righteousness” (Isaiah 1:27); on the establishment of the legal system in the State of Israel, see my book, Judges of the Land (5741-1980), p. 35 ff.  We see the great importance that the Jewish national ethos attaches to the law, to the judge, and to the responsibility he bears.

7.     What supports Justice Arbel’s opinion?  As she pointed out, it is difficult to overstate the importance of the purposes underlying the Freedom of Information Law. The public cannot obtain effective oversight of the activity of the authority without being given the information relating to such activity, within the bounds of transparency; it is not possible to demonstrate involvement in the governmental enterprise without such information; and it is difficult to see how the public and individuals within the public can realize their basic liberty and their rights, without having access to the information that has amassed in the various governmental bodies (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60 (hereinafter: Ministry of Transport),, at p. 73; HCJ 7805/00 Jerusalem City Councilor Roni Aloni v. Jerusalem Municipality Commissioner [2003] IsrSC 57(4) 577, at p. 605). The Freedom of Information Law anchors the conception that had crystallized even earlier in the case law, whereby the authority has no proprietary right in the information that it possesses, and it is a trustee for the public and acts on its behalf (HCJ 2594/96 College of Management Academic Studies (School of Law) v. Israel Bar Association [1997] IsrSC 50(5) 166, 173; see also AAA 8282/02; HaAretz Newspaper Ltd. v. State of Israel, Office of the State Comptroller [2003] IsrSC 58(1) 465, at pp. 470-471). Hence the broad language—which we mentioned, of sec. 1 of the Freedom of Information Law, and on the other hand, the restrictive interpretation of the reservations to delivering information, including sec. 9(b)(1) which is the object of our interest; therefore, the judiciary should in general be subject to criteria that are similar to other authorities, even given the special nature of the judicial function. See on this matter also the words of President A. Barak, as quoted by Prof. Segal in his book: “It is only natural that the courts administration which deals with the administrative aspects of the courts system will be subject to the obligation to provide information, like any other authority” (from a letter sent by President A. Barak on March 17, 1998 to MK D. Zucker concerning an examination of the ramifications of the Freedom of Information Bill on the courts system: Segal, p. 143, n. 395; emphasis added – E.R.).

8.     However, there is a strong, significant opposing side, which operates in the direction of the position taken by my colleague Justice Hendel: the appellants are prepared to take a sizeable step towards the respondents, and to disclose the requested details, but without mentioning the names of the particular judges. This gives rise to the real dilemma in this case, for the information that is normally sought by virtue of the Freedom of Information Law is institutional information, rather than individualized, named information, which is born of an understanding that, as a rule, the person performing the activity is a public servant, who in what he does represents the system itself, in accordance with his function, and he operates on the basis of policy set by the system. Therefore, disclosure of the name of the person executing the action is often of no real importance, certainly not to an extent that would justify harming his ability to perform his task as required or in a manner that would harm his reputation unnecessarily; and as was determined in a similar context: “It is as clear as daylight that the discussion of the reasonableness of the regulation will focus on the considerations that led to its enactment, and not on the identities of the people who were proposing it or objecting to it” (CC (Tel Aviv) 2060/99 Israel Bar Association v. Minister of Justice [Nevo – December 5, 1999], per (then) Judge O. Mudrik). Thus, for example, if information is requested concerning the extent of payment of municipal taxes in a particular municipality, and no one is claiming negligence on the part of any particular clerk, it is doubtful whether publishing their names is worth anything, when all they did was to collect the payments in accordance with municipal procedures. Moreover, as my colleague Justice Hendel pointed out very correctly, exposure of the names of employees is liable to interfere with their ability to perform their tasks properly, for they will devote a significant amount of their time and their energy to justifying their actions and defending their reputations; and to this must be added, as stated, the concern about embarrassing the employee—to which we will return; this is so with respect to every employee, and also with respect to judges.

9.     As Justice Arbel pointed out, the judicial function is different in its essence from other functions in the public service. As an aspect of this, judicial independence, which is vital for the fulfillment of the judicial function, is much greater than the independence of other functionaries in the public service; and as stated in sec. 2 of Basic Law: The Judiciary as a constitutional norm: “A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law.” What is the meaning of judicial independence with respect to the publication of name-bearing information? On the one hand, since the judge determines the fate of persons, of finances, of the public administration, the names too are important. At the same time, there is close oversight of the activities of the judge, both substantively, via the appeals court (with the exception of the Supreme Court, whose judgments are not appealable) and administratively, as in this case, by the presidents of the courts and their deputies and the Ombudsman; there is also an ethics committee whose decisions (non-name-bearing) are published. On the other hand, is it likely that named publication, which is liable to distort the truth, as my colleagues pointed out, will have a severe impact on the work of the judges?

10.   Unlike Justice Arbel, who, despite her uncertainty and her appreciation of the difficulties, believes that these cannot tip the scales. Justice Hendel is of the opinion—as we have said—that publication of the requested information, together with the names of the judges, is liable to cause damage to the judiciary at a level of near certainty. The reasons given in support of this determination are not trivial, particularly the concern that the attempt of the judges to deal with the publication of information about their pace of work—information that is indisputably incomplete and not exhaustive—will detract from the efficiency of their work and its quality, and thus, the purpose for which the information was requested will be frustrated; this is so particularly, according to Justice Hendel, when the appellants are prepared to disclose the statistical information without disclosing the names of the judges, and thus a picture of the workload borne by the judicial system will be reflected, with only minor damage being caused.  

11.   Can these reasons cited by Justice Hendel tip the scales towards refraining from publishing the data? In another context, this Court said, some time ago:

One should ask, wherein lies the statutory authority for depriving a citizen of the right to view material, knowledge of which he has a legitimate interest? All this “secrecy”, which erects a partition and a screen between the government and the citizen, should not have a place in the orderly administration of a democratic regime … I believe, therefore, that the petitioner was justified in his demand, not only because his right to view the documents stems from the provisions of the law, but—and mainly—because basic good sense and logic in public relations between the government and the citizen necessitate this conclusion …  only for weighty reasons can the authority claim confidentiality of a particular document, and whoever claims confidentiality—bears the burden of proof (HCJ 337/66 Estate of Kalman Fital v. Assessment Committee, Holon Municipality [1967] IsrSC 21(1) 69, 72, per Justice A. Witkon [my emphasis – E.R.]).

This consideration supports the delivery of the requested information, in accordance with the position of Justice Arbel. However, we still have not answered the question of possible disruption of the work of the judge.

12.   I will mention here the possibility that the information that is to be delivered will be exploited for the purpose of embarrassing the judges. I do not belittle this consideration, and as Justice Arbel pointed out, it can make the decision in this case a very difficult one.  As I mentioned in a previous case, “sometimes the public servant has nothing but his good name, and if that is besmirched, what is left?” (LCrimA 7383/08 Ungerfeld v. State of Israel [Nevo – July 11, 2011], para. 9) (hereinafter: Ungerfeld); in this, judges are no different from anyone else (and see on this matter HCJ 2561/07 Michal Sharir v. Courts Administration [Nevo – July 24, 2008], per Justice E.E. Levy, para. 8). It is true, as I pointed out in Ungerfeld, that when we are dealing with more highly-placed public officials, who by virtue of their function are exposed to public criticism, it can be expected that their ability to withstand the criticism, and even real insult, will be greater than that of a minor official in the system. Judges occupy a high rank, and by the nature of their profession they are exposed to public criticism on a daily basis, but they are supposed to have a relatively high level of tolerance for criticism, and even for real insults and vilification, which are, unfortunately, not infrequently published against judges.  See on this the words of the late Judge A. Azar, in a judgment stating that the State must release the names of district psychiatrists in a particular context:

        In every choice of profession there are advantages and disadvantages. From this point of view the psychiatrist is similar to the policeman, the prison warden, and the judge. Together with authority comes criticism and the willingness to bear it … as pointed out by Justice Netanyahu: “The greater the power and authority … the greater the importance of the limitations and the means of oversight (CA 558/84, ibid. [Carmeli v. State of Israel [1987] IsrSC 41(3) 757 – E. R.] , at p. 767)” (OM (Tel Aviv)  200871/98 Israeli Association Against Psychiatric Assault v. Ministry of Health [Nevo – 2000] (Emphasis in the original – E. R.)).

13.   My position is as follows: in my opinion the solution to this complex situation is itself complex and not binary, but rather, a cautious middle path; we must confront the matter at “eye level”.  There are judges with respect to whom the possible harm stemming from publication of the data is something that can be dealt with and which will not interfere with their work; there will, however, be judges with respect to whom there is near certainty of disruption with their work, in that their resources in terms of time will be devoted to the publications and to refuting the claims in them, for both subjective and objective reasons: subjective—because they will feel hurt to the depths of their souls in their belief that they have suffered an injustice, and they will lose sleep and their work will suffer, due to the thought that they cannot, due to their place and position, respond appropriately; and objective—for overload is in no way reflected only in the dates on which cases are opened: it is dependent on the case and the circumstances. Moreover, in my view it is significant that a sizeable portion of the complaints lodged pursuant to the Ombudsman for Complaints Against Judges Law involve delays in rendering judgment, but as we have said, the judges’ names are not, as a rule, published, by virtue of the Law. We are dealing with similar material here, and even if the Freedom of Information Law does not contain a specific legislative provision concerning judges, the possibility of an analogy cannot be overlooked. All of these involve shaming, and the sages stated, “He who publically shames his neighbour is as though he shed blood”” (Babylonian Talmud, Tractate Bava Metzia 58b)—no less! And see further in my opinion in CFH 2121/12 Major R. v. Dr. Ilana Dayan [Nevo –September 18, 2014 para. 8]. And of course, when I say “shaming”, I would be equally cautious in relation to those who are not judges. The correct thing in my view is to find a middle road.

14.   Therefore, if my view is accepted, we would act in the following manner: first, insofar as this court—the Supreme Court—is concerned, in view of its primacy of place in the system and in order not to create even the slightest impression that it is trying to prevent the presentation of data, including personal data, in relation to its activities, I would suggest adopting the path of my colleague Justice Arbel, namely, that the information should be published in its entirety with all its components, after the completion of the 5775-2015 legal year, towards the end of 2015. In this I do not see eye-to-eye with our colleague Justice Danziger, who is of the opinion that the information should be published here and now; I think that there is room for a gradual process, as proposed by Justice Arbel, due to the exceptional nature of the name-bearing information.

15.   Regarding the district courts, in my opinion we must proceed with tiny steps. If my opinion is accepted, there should be an additional waiting period, during which the outcome of publication of the names in this Court will be examined, so that lessons can be learned—whether no great harms have ensued and the concerns have proven unfounded, or the opposite; and in order to determine in a sound manner whether we ought to have a part in what may emerge to be nothing other than embarrassment. A decision on this matter will be made by the appellants, after they have learned these lessons, by the end of the 5776 (2016) legal year; this decision will of course be subject to judicial review, and everyone’s rights will be reserved.

16.   This, of course, is additional to the agreement of the appellants to publish the relevant information without mentioning the names of the judges. I propose that we order that this information be published within 45 days of the handing down of this judgment. With respect to this Court, the information containing the judges’ names will be published as emerges in the opinion of Justice Arbel; regarding the district courts, the decision will be made before the end of the 5776-2016 legal year. I also propose, once more in keeping with the spirit of Justice Arbel’s opinion, that each judge be given the opportunity to respond to the data that concerns him alongside the name-bearing publication. In my view, therefore, the appeal should be partially allowed as stated.

 

Justice S. Joubran

1.     Should information concerning the number of open cases being deliberated in the court before each judge, the time taken to deal with them, and the name of the judge hearing each case be disclosed? My colleague Justice Arbel, in her thorough written opinion, answered this question in the affirmative. She explained that the rule expressed in the Freedom of Information Law is that of disclosure of information, and that the exception for disrupting the proper functioning of the judges, which allows the authority to refrain from handing over the requested information, does not apply here. In the balance between the concern about interference with the functioning of the judges and the public interest in publication of the information, my colleague found that the public interest in publication prevails. Underpinning her position is the principle of freedom of information, which is based on public confidence in the system of justice as well as the rights to know and to exercise effective oversight of its activity.

2.     My colleague Justice Hendel, as opposed to this, believes that the names of the judges should not be published. According to him, the publication of anonymous information regarding the state of handling of each and every case suffices. He believes that turning the spotlight on each individual judge, as opposed to a study of the systemic aspect of the requested information, misses the main point, which is the overload in the courts. Personalized presentation of the information focuses the problems of the judiciary as a system, on the judges, without justification. Justice Hendel bases his concerns on a distinction that he draws between the administrative aspect of the judicial task and the legal-substantive aspect. According to him, the principle of freedom of information applies to the legal-substantive aspect through the principle of the public nature of trials; but from here one cannot draw an analogy to the administrative aspect. The number of open cases and the time over which they are heard are part of the administrative work of the judge; and in any case, they stem from factors that are not in the judge’s full control. Personalized disclosure of the requested information will affect the judge’s system of considerations and lead to preoccupation with his apparent efficiency, which will harm his legal-substantive work.

Justice Arbel was not unaware of these concerns laid out by Justice Hendel; in the final analysis, however, she believes that for the most part they are speculative, and that their professional fortitude will enable judges to cope with the unflattering publications. My colleague Justice Rubinstein, unlike Justice Arbel, believes that the expression that should be accorded to these concerns is by means of incremental relief, as stated in para. 13 of his opinion.

3. I will confess that I vacillated a great deal regarding the decision in this appeal and also with respect to the appropriate relief. Let me begin by saying that with respect to the decision, I ultimately decided to concur in the opinion of my colleague Justice Arbel, according to which the appeal should be denied.

As for the relief, I believe that there should be incremental, future-oriented implementation of the judgment, similar to the opinion of my colleague Justice Rubinstein. Like him, I too believe that a distinction should be drawn between the Supreme Court and the district courts; and between publication of the information without the names of the judges and publication of their names.

4.     If my opinion is accepted, publication of the information relating to the Supreme Court, without the names of the judges, in accordance with the appellants’ agreement, will be effected immediately, upon the rendering of this judgment, in accordance with the most current information in the hands of the appellants, and subject to there being no possibility of making a connection, by means of the information, between the judge hearing the case and the case itself. As for the names of the judges, they will be published at the end of the 5775 (2014-2015) legal year.

Regarding the district courts, if my opinion is accepted, publication of the information without the names of the judges will be effected at the end of the 5775 (2014-2015) legal year. Publication of the names of the judges will be effected at the end of the coming calendar year, i.e., the end of 2015.

This delay will allow the courts administration and the judges to prepare themselves for the said change, minimizing concerns about interference with their work, and thus, minimizing concerns about a miscarriage of justice and about adversely impacting the doing of justice.

5.     Below are the reasons for my position, which is based primarily on the various concerns about disruption of the work of the judges and how to minimize them despite the publication.

One cannot make light of the concerns expressed by my colleagues in relation to the potential harm to the work of the judge. True, the starting point is that the judicial task requires of the judge personal strength and a certain resilience in the face of  criticism. But the accepted view is that this strength and resilience are directed at what my colleague Justice Hendel calls the “legal-substantive aspect”, as distinct from the “administrative aspect”. According to this view, public criticism should be directed towards the wisdom of the work of the judge, and not towards its efficiency. The traditional objective of the judicial task is the constant search for the truth. This is the very heart of the role of the judge. The assumption is that in his search for the truth, the judge does all he can to achieve the correct legal result, according to the best of his personal understanding. In order to do so, he requires personal and administrative freedom and autonomy (Daphna Avnieli, “Who Will Control the Judges - and How?” Mishpat Umimshal 9 (5766-2006) 387, at p. 389). Regarding this, Judge Berinson said that “the judges of Israel are famous for performing their judicial task faithfully. It is well known that they are usually subject to the pressure of difficult, voluminous, strenuous and nerve-wracking work. Time is short and the work is always great. And nevertheless … in no way should the noble values of doing justice be sacrificed on the altar of speed and efficiency”  (CA 33/75  Air Thermo Ltd. v. Atarim. [1975] IsrSC 30(1) 547, at p. 554).  Moreover, according to this outlook, the judge acquires public confidence through the contents of his decisions and their justness; these are also the legitimate basis for public criticism leveled at him. It would appear that in view of this outlook, the rules of public trial apply to the substance of the legal process and not to the manner in which it was administered (see: para. 8 of the opinion of my colleague Justice Hendel),

6.     Publication of the names of the judges who are hearing each and every case is not consistent with the said outlook, and it also gives rise to a non-trivial concern that the criticism of the judicial task will be diverted from its natural destination. From a situation in which the work of the judge is evaluated in terms of legal validity, justice, and procedural fairness, the weight will be shifted to an examination that focuses on indices of efficiency and speed. The concern is that administrative criteria will replace legal criteria as the basis for criticism of judicial performance. On the importance of efficiency in the performance of the judge it has been said: “Important as it may be—[it] is not the most important value … first and foremost, one must ensure that the judicial system enables a fair trial so that quick and efficient justice does not become quick injustice” (Shimon Shetreet “The Fundamental Values of the Judicial System in Israel”,Or Book for Supreme Court Judge Theodor Or (2013) 617, at p. 635 (hereinafter: Shetreet, “Fundamental Values”). Public confidence, needless to say, is the “purse and the sword” of the court and the judge; and there are grounds for saying that, due to the desire to win this confidence, the judge’s attention will unconsciously be drawn, to one extent or another, by those efficiency indices.

7.     Efficiency per se is not necessarily negative, and the opposite may even be true. It can speed up the operation of the legal system, thus reducing the duration of legal proceedings and preventing a miscarriage of justice for the litigants. It happens not infrequently—although this is not the rule—that legal proceedings take too long. And it happens that the reasons for the delays are not sufficiently justified. In those cases, the harm to the litigants is not justified, and would be better avoided. In cases in which the drawn-out proceedings are not justified, the rising importance of the efficiency index is consistent with the demand to publish information, including the names of the judges.

8.     And yet, despite the importance of the efficiency of the legal system, the work of the court, unlike that of the litigants, is, as a rule, not limited in time, and there is a reason for this. The pace at which each matter is dealt with and how long it takes are likely to change from case to case: it is a matter for the discretion of the judge. Beyond the considerations of urgency and importance of every matter, which every judge weighs (see: para. 19 of Justice Hendel’s opinion), the pace at which a case is handled and how long it takes are often the result of the case’s factual or legal complexity. Decision-making in fact-filled cases requires intimate familiarity with the factual basis which, not infrequently—as any experienced jurist will attest—extends to a great many pages and takes shape during long hours of deliberations. In addition, decision-making in cases which are legally complex—sometimes in new branches of the law, and sometimes in complicated branches of the law—requires comprehensive, exhaustive research in order to construct the normative framework. An incomplete picture of the factual mosaic and insufficient familiarity with the legal materials in each and every case is liable to affect the quality of the judicial performance.  Exhaustive research and familiarization with the facts are the mainstays of the work of the judge, and we know that “he that repeated his chapter a hundred times is not to be compared with him who repeated it a hundred and one times”  (Babylonian Talmud, Tractate Hagiga 9b). These, by their very nature, involve an investment of a considerable amount of time. Assigning too great a weight to the index of efficiency is liable to bring about a reduction in the amount of time invested in the work of the judge. Such a process involves, as we have said, harm to the quality of the judicial performance. Certain defects in the work of the judge, needless to say, are liable to lead to a miscarriage of justice and to undermine the doing of justice.

9.     Harm to the quality of judicial performance is also liable to find expression in a reduction in the scope of legal reasoning in judgments. Providing the reasons for a judgment is the “mouthpiece of the judge”, by means of which the decision in the judgment is explained to its various addressees—the parties, the legal community, and the general public (Barak, The Judge in a Democratic Society, at p. 295). In the present case, the information that is requested relates to the Supreme Court and the district courts.  In relation to each of these two judicial levels, the role of legal reasoning is slightly different, but each role is very crucial.

The reasoning in the district court provides the basis for the decision on appeal in the Supreme Court. Exhaustive reasoning allows the appeal instance to focus upon, and to reduce, the scope of disputes, and occasionally even to end them without the need for a written judgment. The disadvantages of insufficient reasoning, on the other hand, are many, so much so that it seems unnecessary to explain. Amongst the other disadvantages, non-exhaustive reasoning is liable to make the task of the panel hearing the appeal more difficult, to make the legal process cumbersome, and to harm the continued orderly and fair conduct of the case.  Inhibiting the reasoning of the trial court is likely, therefore, to be a two-edged sword, and instead of promoting efficiency it is liable to detract from it.

The reasoning of the Supreme Court is also essential. True, it does not serve as the basis for an appeal, but it establishes case-law, directs behavior and instills values, and serves as a fruitful basis for essential academic and public discourse. The reasoning of the Supreme Court is also the major ethical basis that often nourishes the public confidence in the legal system in general, and in the Supreme Court in particular.

10.   The concern that judicial decisions will be affected, either consciously or unconsciously, by these or other influences was not unknown to the legislator, and it found expression in various pieces of legislation, including the norm concerning autonomy established in Basic Law: The Judiciary and in reg. 5 of the Code of Ethics for Judges, 5767-2007, which provides that the judge is not dependent on any person, not only in judicial matters but also “in any other field in which he acts” (ss. (b)). The regulation further provides that the judge shall fear no one, and shall not be influenced in fulfilling his role by public opinion, concern about criticism or a desire to please (ss. (3)). The work of the judge is also protected by means of the norm of sub judice that appears in sec. 71 of the Courts Law; by the rules of immunity in tort; by the rules governing testimony from a judge; and by the rules concerning his appointment and the terms of his employment (see: paras. 30-33 in the opinion of Justice Arbel).

11.   It is against this backdrop that the difference between publishing data about the number of open cases and how long have they been in the process of being handled, without attaching the names of the judges, and the request of the respondents that the names be published, must be understood. When the non-named data is presented, the spotlight will be turned on the legal system as a system and not on the judges as individuals. It seems to me, that in most cases, this is what ought to be. It is the courts system, as a system and as an administrative authority, that has the resources, and the ability, to deal with the criticism, to internalize it, to refute it, and, if necessary, to provide explanations that will shed some light and dispel it. Because the reasons for the judicial overload are mainly a systemic matter, the system as such is also the correct address to which criticism should be directed. According to the existing distribution of the work, administrative information concerning statistical data about the number of open cases and the time taken to deal with them is in the hands of the courts administration. As such, that is also the body that bears responsibility for the what the data reflects , as well as being the relevant object of criticism. As opposed to this, the judgments themselves, which are the product of the judge’s work, are published by the judge himself. Criticism of the contents of the judge’s work is naturally directed at the judge, and not at the system. The concern is that publication of the names of the judges will divert criticism from the system, at which it ought to be directed, towards the judge instead.

Is this concern sufficient reason to refrain from publishing the information, including the names of the judges?

12.   The Freedom of Information Law does not contain a purposes section specifying the main purpose that guided the legislator. My colleague Justice Arbel, enumerated several purposes, without determining their hierarchy (for a further review of the purposes, see: Jonathan Arbel and Tehilla Shwartz Altshuler, Information Wants to be Free: Implementing the Freedom of Information Act in Israel (Israel Democracy Institute, 2008) (hereinafter: Arbel and Shwartz). It would seem to be important to identify the relevant purpose in accordance with each case, as an interpretative aid, in order to balance the need to publish information with the need to refrain from exposing it. I believe that of the purposes in the Law discussed by my colleague, the principal purpose in the present case is to afford the public an opportunity to criticize governmental acts and omissions, or in other words, to expose the modes of operation of the public authorities (this is also the main purpose according to the late Ze’ev Segal, see: The Right to Know in Light of the Freedom of Information Law  (2000), 101-103; it is also the main purpose mentioned by the Minister of Justice during the debate on the Freedom of Information Law Bill —protocol of the deliberations of July 1, 1997 and May 19, 1998). The demand to expose the acts of government to the public is identified with the saying that “sunlight is the best disinfectant” (attributed to U.S. Supreme Court Justice Louis D. Brandeis, Other People’s Money and How the Bankers Use It (1914) 43). Underlying this saying is the assumption that the authority will conduct itself in the best way possible, even if only due to the fact that its activity is exposed to public scrutiny. Exposure of the activity to public scrutiny is intended to prevent modes of conduct and methods of decision making that the public wishes to reject. In our case, the assumption is that exposure of the administrative data concerning the handling of cases, together with the names of the judges, will increase the efficiency of the legal system.

13.   Against this background, a balance must be struck between freedom of information and the need to refrain from handing over the information. In the present context, this balance is struck, as Justice Arbel explicated, in the framework of an examination of the exception due to interference with “the proper functioning of the public authority” in sec. 9(b)(1) of the Law. The central consideration in this balancing, as she explained, is “the public interest in the publication of the information.” In the framework of considering the public interest in the publication of the information, regard must also be given to the public interest in refraining from such publication. In other words, the question is whether the public will benefit more from the information’s being published or from its remaining confidential. In our case, as stated, the requested “information” includes two tiers: The first is the anonymous statistical data concerning the number of open cases and the time over which they are handled; the second is the names of the judges who are handling each case.

14.   With respect to the question of the publication of the anonymous statistical data, the interest of the public would seem to be clear. Publicizing this data will expose the public to the judicial overload and to its ramifications for the duration of legal proceedings.  This information will provide an opening for public discourse on the merits, which constitutes the very core of a democratic regime (cf: Aharon Barak, “Freedom of Information and the Court”, Kiryat Hamishpat 3 (5763-2003) 95, at p. 97), and it will allow the public to formulate a position on the conduct of the system, including its efficiency. This discourse is the basis for bringing about structural changes and changes in the allocation of resources, in legislation, or in the actions of the executive branch of government, the goal of which is to increase the efficiency of the system. The existence of this discourse is dependent on the publication of the information. Hence, public interest in the information’s being published is clear.

15.   Unlike publication of anonymous statistical data, the question of the public interest in publication of the names of the judges does not necessarily have an unequivocal answer. Such publication is likely to engender benefit to the public interest, but it arouses a non-negligible concern. In broad terms, the concern is that the “efficiency index” will partially replace the “quality index”. Publication of names—and Justice Arbel discussed this at length—is likely to motivate judges to make an effort to climb to the top of the chart, or at very least, not to be at the bottom. When this process of increasing efficiency does not come at the expense of other essential aspects of the work of the judge, but only speeds it up, there is a public interest in the publication. But when vital aspects of the work of the judge are harmed, the interest of the public is liable to lie in refraining from publication of the information.

16.   With respect to balance: in Justice Arbel’s opinion, the probability standard by means of which the balance should be sought within the parameters of sec. 9(b)(1) is that of “near certainty” of interference with the functioning of the authority.  Recourse to a uniform standard for the entire range of cases in which information is requested is not a given, but I am prepared to start out from the assumption that in the present case, that is the appropriate standard of probability (this is also the position of my colleagues, Justices Hendel and Rubinstein). The public has an interest in knowing how its judges manage their dockets; the rate of progress on cases; and the connection between the progress on each case and the judge who is dealing with it. To the extent that it will lead to increased efficiency in the judge’s performance without detracting from its quality, an order should be issued to hand over the information. As opposed to this, if increased efficiency will lead, with near certainty, to interference with the judge’s work, the information should not be handed over.

17.   With respect to the Supreme Court, I accept the position of my colleague Justice Arbel, whereby harm to the work of the judges is not a near certainty. The Supreme Court is the highest court in the courts system, and naturally, concern that publication of the names of the judges will affect those judges’ promotion is not actual. A justice of the Supreme Court has more auxiliary staff available to him than the judges of other courts, and the main thrust of the process of streamlining can be channeled to this staff, without harming the “inner core” of the judicial task. Moreover, it would seem that public interest in publishing the names of the justices of the Supreme Court is greater than in the district courts, inter alia because the Supreme Court is quite frequently called upon to decide on issues that are of social importance, in which the public has a great interest. In addition, as my colleague Justice Rubinstein points out (para. 14 of his opinion), due to the seniority of this highest instance, and in order not to create the impression that this Court is taking the law into its own hands, the public interest in publication of the names is greater.

18.   Against this background, the assumption underlying the position of my colleague Justice Arbel, whereby the judge will be able to dissociate himself from the criticism, is reasonable with respect to justices of the Supreme Court. The obvious conclusion is that in the Supreme Court, interference with the functioning of the justices is not a near certainty, and therefore publication of the names of the justices who are handling the cases should not be prevented.

19.   If my opinion is accepted, publication of the information relating to the Supreme Court, without the names of the judges, as agreed by the appellants, will be effected immediately upon the rendering of this judgment, in accordance with the most current information held by the appellants, and subject to there being no possibility of connecting, by means of this information, the judges hearing the cases with the cases themselves. As for the names of the judges, in order to allow sufficient preparation time for the aforementioned change: they will be published at the end of the 5775 (2014-2015) legal year.

20.   As for the district courts, a categorical assumption that all the judges will be able to dissociate themselves from the criticism and avoid disruption to their work is not free of doubt. Criticism of the judges of the district courts is likely to have a greater effect than criticism of justices of the Supreme Court, inter alia due to the concern of the former that such criticism may impede their promotion. In addition, less auxiliary staff is available to the judges of the district courts than to the Supreme Court, and the concern that the harm will affect the “inner core” of the work of the judge is therefore greater. It is also true that reducing the time taken to hear evidence or the time spent on legal research is liable to affect the legal decision already at the level of the trial court. To the extent that an error is a non-legal one, i.e., it relates to factual findings and the conclusions therefrom, there is a concern that the error will be perpetuated, thus causing harm to due process and to justice. In view of what has been said, owing to the greater concern about interference with the functioning of the judges in the district courts, it appears to me that a different balance is required to that relating to the Supreme Court.

I believe that this balance must be found, not at the level of the decision, but at the level of relief. At the level of decision, even though the concerns described above are not light, they do not amount to categorical “near certainty” of interference with the orderly functioning of the judges. However, in order to alleviate the concern about harming the work of the judges, it appears that on the level of relief, there are good reasons for applying the judgment in an incremental, forward looking manner. Publication of the names of the judges is a substantive change from the present practice in the courts. Even those who support publication would surely agree with that. The purpose of the publication is to expose to public scrutiny another aspect of the judicial task which until now has been overseen from within the system (see Shetreet, “Fundamental Values”, at p. 635, near the text “The President or the Deputy President are responsible from the administrative perspective for the judges …”). As a result of the act of exposing the names of judges, certain birth pangs can be expected. Presentation of the raw data will create an inaccurate picture. In order to present the data in a manner that is not misleading, a certain amount of preparatory work is needed, such as providing explanations for the state of some drawn-out cases (see: para. 59 of the opinion of Justice Arbel and para. 12 of the opinion of Justice Hendel). Beyond this, placing the names of the judges in the public spotlight can be expected to bring about a change in the maner that they conduct the administrative aspects of their work. Also, the system, as a system, is likely to slighty alter the manner in which cases are assigned (Shetreet, “Fundamental Values”, at p. 635: “Today, the courts administration dictates to the judges the required pace of work …”). The district courts, unlike the Supreme Court, are not a single body, and their preparation for changes, and their adjustment, will naturally require more time. These changes require preparation and thought, both on the level of the individual judge and at the systemic level. In general, it may be said that these changes are primarily a matter of justice seen.  But in order that these changes not harm justice itself, incremental implementation of publication is required. Therefore I am of the opinion that in the district courts, there should be incremental, forward looking implementation of the judgment: At the first stage, the data should be published without the names of the judges. This intermediate situation will allow the system, as a system—including the courts administration and the presidents of the district courts and their deputies—as well as each judge, to internalize the change and to plan the administrative aspect accordingly. At the second stage, after a pause that will allow for the situation to be studied and for preparation, the names of the judges in the district courts, too, will be published.

Therefore, with respect to the district courts, if my opinion is accepted, publication of the information without the names of the judges will be effected at the end of the 5775 (2014-2015) legal year. Publication of the names of the judges will be effected at the end of the coming calendar year, i.e., the end of 2015.

21.   After having completed my writing of this opinion, I read the opinions of my colleagues Justice Hayut and Justice Vogelman, who concurred in the relief proposed by my colleague Justice Arbel in para. 96 of her opinion. The date of implementation proposed by Justice Arbel is, in the final analysis, deferred, i.e., it is set for the end of the 2015 legal year and no later than December 31, 2015. Ultimately, the distance between our positions regarding the date of implementation of the names of the judges—which is the focus of the dispute—is not great. In these circumstances, I concur in the relief that was proposed in para. 96 of the opinion of Justice Arbel.

 

Justice E. Hayut

I concur in the comprehensive opinion of my colleague, Justice E. Arbel, and in her conclusion whereby the appeal should be denied and an order issued for the material to be delivered in a manner and at times as specified in para. 96 of  her opinion.

1.     A public authority in a democratic state—such as the judicial branch in Israel—possesses powers granted to it by law which it is obligated to apply for the sake of the public and for its benefit. It is considered a trustee of the public, and from this two important conclusions follow:

First, the information connected with the activity of such an authority is not its own property, and it, too, is held by it in trust for the public. In the words Justice H. Cohn, which are like fine, vintage wine:

        ‘… the private domain is not like the public domain, for the one acts with regard to its own property; if it wishes, it may give, and if it wishes, it may refuse. The other was entirely created merely to serve the common good, and it has nothing of its own: everything that it has is deposited with it as a trustee, and as for itself, it has no rights or duties that are in addition to, or different and distinct from, those that derive from this trust or that were conferred on it or imposed on it by virtue of statutory provisions HCJ 142/70 Shapira v. Jerusalem District Committee of the Israel Bar Association [1971] IsrSC 28(1)  325, at p. 331).

Secondly, the authority as a public trustee is accountable to the public which it serves. An as stated by (then) Justice M. Cheshin in a similar context:

‘When we realize that the civil servant acts as a trustee and as an agent of the public, he is therefore bound by the duties of an agent, including the duty to account for his actions, i.e., to disclose to his principals — the entire public — what he has done and what he has not done, why he has done one thing and not another, and when he takes no action, why he took no action. He is obliged to disclose all his acts and omissions, together with the reasons for them. Only in this way can the public know whether the civil servant has acted faithfully; only in this way will the public have confidence in the administration and its employees (HCJ 3751/03 Ilan v. Tel-Aviv-Jaffa Municipality [Nevo – 2004], para. 15).

These and other important rationales are what provide the foundation of the principle of freedom of information, which has been a recognized, entrenched principle in the Israeli legal system for many years, and since 1998 has also been anchored in primary legislation of the Knesset, i.e., in the Freedom of Information Law (see AAA 9135/03 Council for Higher Education v. HaAretz Newspaper [2006] IsrSC60(4) 217, at pp. 230-232 [hereinafter: Council for Higher Education], and see Justice Arbel’s broad survey in paras. 20-25 of her opinion).

2.     The point of departure for the principle of freedom of information is that every citizen or resident of Israel has the right to obtain information from the public authority. This right—the right to know—is included in the list of human rights, and as such, it stands on the highest rung in the hierarchy of rights (see: AAA 3300/11 Ministry of Defense v. Gisha [Nevo – September 5, 2012], para. 5 of my opinion). But like every other human right, it is not absolute, and the provisions of the Freedom of Information Law define and delimit it when the conditions it specifies are present (sec. 1 of the Freedom of Information Law). Thus, for example, sec. 9(a) of the Law enumerates the type of information which the public authority is not permitted to deliver, and sec. 9(b) enumerates the information that the public authority is not obligated to deliver. The crux of the dispute between the appellants and the respondents at the stage of the appeal before us is the question of whether, as the appellants claim, the respondents should be satisfied with the information regarding the cases that are pending in the district courts and in the Supreme Court without designation of the names of the judges or whether, in accordance with the position of the respondents and of the trial court, the appellants must also supply details of the identities of the judges who are handling the cases. The appellants base their position—according to which information specifying the names of the judges should not be delivered in this context—on the limitation established in sec. 9(b)(1) of the Law, whereby:

“A public authority is not obliged to provide … information, the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties”.”

This limitation seeks a balance between the right to know and the important public interest in preserving the proper functioning of the public authority. As my colleague Justice Arbel pointed out (see paras. 53-57 of her opinion), the law is that when there is a clash between a constitutional right to obtain information from a public authority and between the said interest in sec. 9(b)(1) of the Law, the balance is a “vertical” one and therefore, as a rule, the public interest will prevail only where there is near certainty of the harm involved (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60, pp. 82-84; AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 28, 2012], [hereinafter: Ministry of Education] per Deputy President E. Rivlin, paras. 7-8). Here it is important to distinguish between the possibility of the occurrence of the harm to the public interest, which the limitation seeks to protect—with respect to which near certainty must be demonstrated—and between the magnitude of the harm to the interest, if it eventuates, which also carries weight in the framework of the balancing act, but with respect to which the authority is not obliged to demonstrate “special harm”, and it should retain flexible criteria that can be applied having regard to the data and the circumstances of each and every case (Council for Higher Education, para. 21; AAA 1825/02 State of Israel, Ministry of Health v. Retirement Homes Association [2005] IsrSC 59(2) 726; Ministry of Education, para. 8).

3.     The concerns about interference with the proper functioning of the judiciary that were raised by Justice Arbel in her written opinion and by Justices Hendel and Rubinstein in their written opinions are definitely worrying and they warrant attention. Particularly worrying in my view is the concern that the special emphasis on the efficiency of the judiciary and publishing the open cases together with the name of each judge individually, are liable to “breathe down the necks” of the judges and cause them to speed up the hearings and the rendering of judgment excessively, at the expense of quality. After all, the judges are not a “production line” for judgments. Judge Arbel discussed this, saying incisively: “The judge cannot fulfill his mission in a high-quality, full, and complete manner with a gavel in one hand and a stop-watch in the other …” (sec. 69 of her opinion). Indeed, it is important to bear in mind that efficiency is not everything, and therefore, evaluation of the activity of the judiciary according to “production units and output” is liable to distance the legal discourse from the substance which lies at the very heart of this activity—doing justice. On this matter, Professor S. Shetreet’s words from over thirty years ago are on point, and still apply today:

Because the goal of the legal process and the system of justice is to do justice, one must be wary of the tendency to examine them according to criteria of production units and units of output, and of the tendency to apply to them, without special adjustment, concepts of efficiency from other areas of organization and administration (Shimon Shetreet, “Practical and Value Problems in the Administration of Justice,” in S. Shetreet (ed.), Recent Developments in Israeli Case Law and Legislation, Collection of lectures delivered at the Seminar of Judges 80-98, [81]).

Moreover, as my colleagues elucidated at length, without individual consideration of the scope of each case and its weighting from the point of view of the judicial time that it requires, the picture created is liable to be superficial and absolutely inaccurate. At the same time, and like my colleague Justice Arbel, I too believe that these concerns do not meet the standard of near certainty that harm will be done to the proper functioning of the judicial authority if the requested information is delivered, and therefore, my opinion, like hers, is that the right to know prevails in the present case. This conclusion is further validated in view of the fact that we are dealing with the judicial authority, which not infrequently orders the enforcement and implementation of this right with respect to other authorities, and it is therefore important that on this matter, we act in accordance with what the sages say, and that we “preach well and act well”

4.     For these reasons I concur, as stated, in the opinion of my colleague, Justice Arbel, including in relation to the schedule laid out in para. 96 of the opinion, in order to allow time for each of the judges involved to append an explanatory comment to the information regarding the open cases on his desk, as he sees fit.

 

Justice Vogelman

My colleague Justice E. Arbel discussed, at length and comprehensively, the normative basis that was required for the decision—beginning with the Freedom of Information Law, moving on to the special nature of the profession of the judge that constitutes a way of life, and ending with a comparative survey. I agree with my colleague that the judicial function requires—in its very essence—maximum transparency, which is a sine qua non for public confidence in the legal system; a fundamental conception that is expressed, inter alia, in the principle of the public trial; and the obligation to provide reasons. In my opinion, transparency indeed is characteristic of the conduct of the judicial system, on various planes.

At the same time, there is no denying that a hard look at reality makes it difficult not to agree with the conclusion of my colleague Justice N. Hendel, that compared to the existing systemic mechanisms for dealing with specific problems of overload in relation to particular judges, the benefit that will accrue from publication of named information is not great, whereas the publication is liable to cause a considerable degree of personal and systemic harm. It is not for nothing that the comparative survey presented by my colleagues reveals that, with the exception of the United States, there are no countries in which information is published in the format requested in the present case. In the United States too, to which my colleagues refer, such publication is not pursuant to regular legislation dealing with freedom of information, but rather, to special legislation which focuses on the judiciary, and subject to conditions that map out more particular, specific disclosure than what was requested here.

That is the point: the question that required our decision in the present proceeding is not whether the delivery of information that includes the names of the judges serves the public interest. We must decide whether the interpretation of the arrangement found in the Freedom of Information Law, with its limitation, leads to the conclusion that the requested data is not of the type that the authority is obliged by law to deliver, bearing in mind that the primary legislator did not see fit to exclude the judicial system from the application of the Freedom of Information Law insofar as administrative information is concerned. Like my colleague, Justice (ret.) Arbel, I too see no reason to determine that in the affairs of the judiciary, of all places, there should be a deviation from the balancing formula that we have fixed in our case law, whereby the public interest outweighs the right to obtain information if there is near certainty that disclosure of the information will cause real harm to the orderly functioning of the authority (see e.g. AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo –August 23, 2012, para. 7). Even if I assume that disclosure of the names will indeed lead to real harm to the functioning of the judicial authority as my colleague Justice Hendel believes, I cannot say that there is near certainty that such harm will be caused on the systemic level.

My colleague Justice Rubinstein does not disagree with the normative framework and what that involves, but he points out that publication of the information together with names will affect different judges differently, hence the different relief that he suggests. In view of my conclusion regarding the absence of near certainty of harm at the systemic level, and since I found that the relief suggested by Justice Arbel allows for a suitable period of organization, I do not see any reason to limit this relief.

Therefore I concur in the conclusion of my colleague Justice (ret.) E. Arbel and the relief that she suggests.

 

   

Decided by the majority opinion of Justice (ret.) E. Arbel and Justices S. Joubran, E. Hayut, Y. Danziger and U. Vogelman to deny the appeal. In order to allow the appellants to make the appropriate preparations for implementing the judgment, it was decided that they will be required to deliver data regarding the Supreme Court and the district courts as requested in the petition, in relation to the end of the 2015 legal year, and no later than December 31, 2015. Regarding the manner of disclosure of the information, the dissenting view of Justice Y. Danziger is that the appellants should be ordered to disclose the most recent information they possess, namely, information relating to the 5774 (2013-2014) legal year, no later than December 31, 2014.  It was also decided that the appellants will pay the respondents’ legal fees in the amount of NIS 20,000.

The above is contrary to the dissenting opinion of Justice E. Rubinstein, in whose opinion the appeal should be partially allowed but only in relation to the district courts, to be reconsidered periodically (whereas the material relating to the Supreme Court should be delivered as determined in the majority opinion), and the opinion of Justice N. Hendel, whereby the appeal should be allowed in its entirety.

 

27 Elul 5774

September 22, 2014

 

 

 

 

 

 

 

 

       

 

 

 

 

 

 

 

 

 

 

 

In the Supreme Court

LCA 3973/10

 

Before:                                                President (ret.) A. Grunis

                                                Justice U. Vogelman

                                                Justice N. Sohlberg

 

The Petitioner:                         David Stern

 

                                                v.

 

The Respondent:                     Verifone Holdings, Inc.

 

A motion for leave to appeal the decisions of the  District Court (Cent. Lod) of April 26, 2010 and August 25, 2011 in Class Action 3912-01-08 by President H. Gerstl

 

On behalf of the Petitioner:    Adv. Gil Ron; Adv. Aharon Rabinovitz;

                                                Adv. Jacob Aviad; Adv. Nadav Miara

 

On behalf of the Respondent:            Adv. Josef Ashkenazi; Adv. Moshe Yacov;

                                                Adv. Hanan Haviv

 

Judgment

 

President (ret.) A. Grunis:

1. A court in the United States approves a settlement in a class action being heard before it. According to the terms and conditions of the settlement, it applies to the members of the represented class who are located both in and outside of the United States. What effect does approval of the settlement have on a class proceeding on the same issue in Israel? This is the question before us.

The chain of events

2. The motion at bar for leave to appeal has undergone many twists and turns since being filed. I will, therefore, briefly describe the chain of events, focusing on the issue that is now to be decided. The Respondent, Verifone Holdings, Inc. (the Respondent) is a foreign company that was incorporated in the State of Delaware in the United States. The Respondent engages in the development of secure electronic payment systems and solutions. The Respondent’s shares are traded on the New York Stock Exchange (NYSE), and in the period between July 2006 and July 2010 they were also traded on the Tel Aviv Stock Exchange (TASE). In December 2007, the Respondent published immediate reports on the stock exchanges in the U.S. and in Israel, in which it was stated that errors had been discovered in its periodic financial statements in relation to the first three quarters of the financial year ended October 31, 2007. After this publication, there was a sharp drop in the value of the Respondent’s stock. These circumstances led to the filing of 16 actions in the United States against the Respondent by its shareholders, ten of which were motions for class certification, and six of which were motions for approval of derivative suits. The hearing of nine of the class proceedings was consolidated before the Federal Court in California (In re Verifone Holdings, Inc. Securities Litigation, Civil Action C 07-6140 MHP, decision of January 18, 2008; this consolidated proceeding shall hereinafter be referred to as the “Class Proceeding in the U.S.”). Various entities contended in the California court for appointment to the position of the lead plaintiff in the consolidated proceeding (“Lead Plaintiff”), including several Israeli institutional bodies (“Phoenix”, “Harel”, “Clal Finance”, “Prism”, “Batucha Investment Management” and “Yashir Investment House”). Ultimately, the California court chose to appoint a body named “National Elevator Fund” as lead plaintiff.
3. On January 27, 2008, the Petitioner, David Stern (hereinafter: the Petitioner) filed a motion for class certification against the Respondent (hereinafter: the Motion for Class Certification in Israel) in the District Court (Cent. Lod). In this proceeding, the District Court was asked to certify a class action against the Respondent on behalf of any person who purchased shares of the Respondent on TASE between March 7, 2007 (the date of publication of the first erroneous financial statement) and December 2, 2007, and who held the stock on December 3, 2007 (the date of publication of the immediate report in Israel in which the error was exposed). The Petitioner asserted that following the discovery of the errors that occurred in the Respondent’s financial statements, the value of its shares fell by approximately 46%. It was asserted that the Respondent bears responsibility to its shareholders for inclusion of the misleading details in the financial statements (pursuant to Section 38C of the Securities Law, 5728-1968 (hereinafter: the Securities Law)). The Petitioner stated that he estimates that the damage to the class members (in Israel) is in the sum of NIS 2.48 billion.
4. As aforesaid, I will review the rest of the chain of events only in brief. The Respondent filed a motion for dismissal in limine of the Motion for Class Certification in Israel, and alternatively to stay the proceedings (it is noted that the Respondent did not file an answer in response to the Motion for Class Certification in Israel, and in fact, such an answer has not been filed to date). The main grounds of the motion were the proceedings which were pending in the U.S. and which concern the same issue, and forum non conveniens considerations. The Respondent asserted, inter alia, that the law applicable to the Motion for Class Certification in Israel is U.S. law. At the hearing held before the District Court on May 25, 2008, the parties reached a stipulation whereby the court would first address the issue of the law applicable to the Motion for Class Certification in Israel. On September 11, 2008, the District Court ruled that the law applicable to the Motion for Class Certification in Israel is U.S. law ( H. Gerstl, P.). A motion for leave to appeal (LCA 8517/08) was filed from this decision. In a decision of January 27, 2010, this Court ordered the dismissal of the motion for leave to appeal, ruling that the District Court must also address the issue of staying the hearing of the Motion for Class Certification in Israel until the class proceeding in the United States is decided (A. Grunis, E. Arbel and N. Hendel, JJ.). It was further ruled that once the matter was decided, this Court could hear both the stay of proceedings issue and the issue of the applicability of foreign law. On April 25, 2010, the parties filed joint notice with the trial court whereby they agreed that the hearing of the Motion for Class Certification in Israel be postponed “based on the Honorable Court’s ruling regarding the applicability of the foreign law”, and without derogating from the Petitioner’s ability to seek to appeal the ruling regarding the applicability of the foreign law. The District Court (H. Gerstl, P.) ordered the postponement of the continued hearing of the proceeding, as agreed (decision of April 26, 2010).
5. On May 24, 2010, the motion for leave to appeal at bar was filed, from the trial court’s decision of April 26, 2010, in which the District Court ordered a stay of the proceedings (although the grounds of the motion for leave to appeal relate to the issue of the applicability of the foreign law, which was decided in the District Court’s decision of September 11, 2008). On September 1, 2010, the Petitioner filed with this Court (after being granted leave) new evidence -- a judgment that had been issued by the Supreme Court of the United States, after the granting of certiorari, in which the extraterritorial applicability of U.S. securities law was addressed (Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247 (2010), judgment of June 24, 2010 (hereinafter: the Morrison case)). The Petitioner asserted that in Morrison, it was ruled that U.S. securities law is not applicable outside of the U.S., and therefore, so he claims, the law applicable to the Motion for Class Certification in Israel is the law in Israel, and there is no room to order the continued postponement of the hearing of the proceeding. In my decision of October 13, 2010, I ordered that the handling of the motion for leave to appeal be suspended and that the District Court decide the consequences of the ruling in the Morrison case on the Petitioner’s case. On August 25, 2011, the District Court decided that the judgment in Morrison does not change its position with respect to the applicability of the foreign law, and therefore the stay of the hearing of the proceeding would remain in place. In accordance with my decision, on November 13, 2011, the Petitioner filed an amended motion for leave, in which the District Court’s decision of August 25, 2011 was also challenged. On February 4, 2013, the Petitioner gave notice (after hearing this Court’s comments at the hearing that was held on January 9, 2013) that he agrees that in view of the existence of the Class Proceeding in the U.S., the hearing of the proceeding that he instituted in Israel be postponed, while he retains the possibility of “resuming the proceedings upon circumstances so justifying”. Accordingly, we ordered, in our decision of February 10, 2013, that the hearing of the proceedings being conducted in Israel between the parties be postponed, and that if the Petitioner would petition for resumption of the hearing of the motion for leave to appeal at bar, the hearing would be resumed from the point at which it was left off.
6. In the meantime, there were developments in the proceedings in the United States. On August 9, 2013, the parties in the Class Proceeding in the United States filed a motion for approval of a settlement that was reached between them (hereinafter: the Settlement, or the Agreement). It is this Settlement which now stands at the center of the hearing before us (the Settlement was filed for our inspection in a notice on behalf of the parties of May 1, 2014). According to the Settlement, the Respondent’s shareholders in the relevant period will be entitled to financial compensation. According to the provisions of the Agreement, the class to which the Settlement applies includes any person who purchased shares of the Respondent between August 31, 2006 and April 1, 2008 (with the exception of officers of the Respondent and members of their families), “on any domestic or foreign exchange or otherwise”; sec. 1.3 of the Agreement). It is already possible to see that this definition of the class includes the class, as defined in the Motion for Class Certification in Israel, in terms of both geography and time (since the definition of the class in the Motion for Class Certification in Israel relates to whoever purchased shares of the Respondent on TASE between March 7, 2007 and December 2, 2007). The sum total of the settlement is U.S. $95 million (sec. 1.22 of the Agreement; this amount includes the representing counsel’s fees, secs. 1.16 and 5.2(c) of the Agreement). The representing counsel requested the award of fees in his favor at a rate of 20% of the settlement (i.e., 20% of U.S. $95 million; Annex A1 to the Agreement). The Agreement stated that the average compensation amount that would be due to the class members, before deduction of the fees of the Lead Plaintiff’s counsel, was U.S. $0.71 per share (ibid.).

In accordance with the provisions of the Settlement, the notice regarding the Agreement would be sent by mail to the class members who may be located with reasonable effort (sec. 6(a) of Appendix A to the Agreement). It was further agreed that an announcement would be published regarding the Agreement in three newspapers, “Investor’s Business Daily”, “Globes” and “The Business Wire” (sec. 6(b) of Appendix A to the Agreement). According to the Agreement, every member of the class is required to prove his entitlement to receive compensation by sending an appropriate form within 90 days after delivery of the notice regarding the Agreement (sec. 5.4 of the Agreement) (hereinafter: the “Entitlement Forms”). The representing counsel has discretion to permit submission of the Entitlement Forms also after this period if an undistributed balance remains in the settlement account (sec. 5.5 of the Agreement). It was further agreed that any balance that would remain in the settlement account after a period of six months would be distributed, insofar as possible, to the class members who applied for receipt of compensation and who proved their entitlement. If a balance remains after this additional distribution, it was agreed that it would be donated to a public cause (an organization which gives legal aid to the needy; sec. 5.6 of the Agreement). The Settlement further determined that each member of the class may be heard at the court hearing the proceeding, and object to approval of the Agreement (secs. 10 and 12 of Appendix A to the Agreement). Each member of the class may also give notice that he wishes to leave the class, in which case he will not be entitled to compensation by virtue of the Agreement and will not be subject to the decision in the proceeding (sec. 11 of Appendix A to the Agreement). The settlement further determined that approval of the Settlement will constitute res judicata vis-à-vis all of the class members (sec. 8 of Appendix A to the Agreement).

7. On October 15, 2013, the Federal Court in California issued “preliminary approval” for the Settlement (Edward M. Chen, J.). On December 30, 2013, the Petitioner filed with the Californian court (according to the date scheduled therefor) objection to approval of the Settlement. The objection was filed on his behalf and on behalf of the class that he seeks to represent in the Motion for Class Certification in Israel. On February 14, 2014, a hearing was held at the Federal Court in California on the objection filed by the Petitioner. The Petitioner, two of his Israeli counsel (Adv. Gil Ron and Adv. Nadav Miara) and a U.S. attorney whom they retained, were present at the hearing. On February 18, 2014, the Federal Court in California rejected the Petitioner’s objection to the Settlement. In its decision, the court addressed in detail the claims raised by the Petitioner against approval of the Agreement. We will address the court’s rulings in this context in greater detail below. The Federal Court in California further found that the settlement was fair and fitting, and that the fees at the rate requested by the representing counsel should be approved. However, the California court ordered that further publications be made in Israel regarding the fact of the Agreement. With respect to the applicability of the approval of the Settlement to the members of the class in Israel, the court added as follows: “However, as the Court noted on the record and reiterates here, this order granting final approval is not intended to dictate to the Israeli courts (nor does this Court opine on) the enforceability of the releases contained in the settlement agreement or the applicability of Morrison should the Israeli investors’ claims be permitted to proceed in Israel”. On February 20, 2014, the lead plaintiff in the Class Proceeding in the U.S. announced that notice in Hebrew would be sent by mail to many class members in Israel, that an announcement would be published in Hebrew in the “Globes” newspaper, and that the last date for the class members in Israel to submit the Entitlement Forms would be extended. The final approval of the Settlement was granted on February 25, 2014.

The parties’ claims in the supplementary pleading

8. In accordance with my decision of June 26, 2014, the parties filed a supplementary pleading in which they addressed the applicability of the Settlement that had been approved in the U.S. to the Motion for Class Certification in Israel. The Petitioner claims that the Settlement gravely discriminates against the class members in Israel, and therefore should not be recognized as preventing the continued hearing of the Motion for Class Certification in Israel. The Petitioner claims that defects occurred in the manner in which the class members in Israel were informed of the Agreement, and that, in fact, they were denied the right to withdraw from the class and object to approval of the Settlement. According to the Petitioner, the notice in Hebrew regarding the Agreement was delivered to the class members in Israel after the date for filing objections to the Agreement, and the date for withdrawing therefrom had lapsed, and the information that was provided therein was only partial and was inarticulately presented. The Petitioner adds that there are differences between the securities law in Israel and such law in the United States He claims that in the United States, the security holder is required to prove the mens rea of fraud or gross negligence in order to establish a cause of action due to an error that occurred in a financial statement, while in Israel, there is no need to prove such grounds. Therefore, so the Petitioner asserts, there was room to set apart the class members in Israel from the rest of the represented class in the United States, and to award the Israelis higher compensation. Despite these differences between the various class members, the Petitioner asserts that the Settlement makes no explicit reference to the existence of the class members in Israel, and that, in fact, the attention of the United States court was drawn thereto only at a later stage, following the objection that he filed. Thus, for example, the Settlement states that the settlement will be published in the “Globes” newspaper, without stating that it is an Israeli newspaper. On the Entitlement Forms, the class members were even required to declare that they were not aware of a legal proceeding that had been filed on their behalf on the same issue, which is not true in respect of the class members in Israel. The Petitioner adds that the United States court expressed grievance that its attention had not been drawn to the existence and uniqueness of the class in Israel. The Petitioner further states that, on the merits, the compensation that was granted to the class members in the Settlement is too low.

The Petitioner further refers, in the supplementary pleading, to the conditions for recognition of a foreign judgment pursuant to the Foreign Judgment Enforcement Law, 5718-1958 (hereinafter: the Foreign Judgment Enforcement Law). The Petitioner asserts that a class settlement issued in a foreign country should only be recognized if the right of the class members in Israel to a fair proceeding is not prejudiced. According to him, the right to a fair proceeding of the class members includes the right to receive notice of the settlement, to withdraw from the settlement, to object thereto, and the settlement being fair. According to the Petitioner, the Settlement in the case at bar does not meet these conditions. The Petitioner emphasizes in his arguments the fact that the California court explicitly ruled that it was not deciding the issue of the applicability of the settlement to the class members in Israel. Finally, the Petitioner believes that the issue of the applicability of the Settlement should be decided by the District Court. The Petitioner further seeks that we decide the issue of the applicability of the foreign law, since this decision bears consequences for the fairness of the settlement vis-à-vis the class members in Israel.

9. The Respondent, conversely, claims in the supplementary pleading on its behalf that the settlement that was approved in the United States is fitting and fair, and that it establishes res judicata in respect of the Motion for Class Certification in Israel. The Respondent rejects the Petitioner’s claims whereby the rights of the class members in Israel were denied. The Respondent specifies in its arguments the considerable efforts made to locate the class members in Israel and inform them of the Settlement and the terms and conditions thereof. The Respondent states that many class members from Israel submitted the Entitlement Forms, and a considerable portion of the “entries” to the designated website that was set up for purposes of implementation of the Settlement was from Israel. Thus, although the scope of the trade on TASE in shares of the Respondent in the relevant period was approx. 7-8% of the entire scope of the trade in its shares, it was found that 28% of all of the entries to the website mentioned were from Israel and approx. 25% of the Entitlement Forms that were submitted by way of delivery of documents arrived from Israel (as distinguished from forms that were submitted online, in respect of which the Respondent did not have full data to classify the identity of the persons submitting the forms by place of residence). In the Respondent’s opinion, the intense participation of the class members in Israel in the settlement that was reached reveals that they were well aware of the fact of the Agreement, and that many of them believed that it was a fair and fitting agreement. The Respondent adds that the Petitioner does not present even a single case of a member of the class in Israel who sought to object to the Settlement or to withdraw therefrom and was prevented from doing so. The Respondent emphasizes in its claims that the Petitioner played an active part in the hearing on approval of the Settlement in the United States, and that his claims were addressed there and rejected. The Respondent adds that the Petitioner even admitted to the California court that in his opinion, the settlement is fair. Therefore, the Respondent asserts that the judgment approving the Settlement in the United States should be recognized pursuant to the Foreign Judgment Enforcement Law, and the Motion for Class Certification in Israel denied due to the existence of res judicata. The Respondent attached to the supplementary pleading on its behalf an expert opinion regarding the foreign law, whereby approval of the Settlement in the United States establishes res judicata vis-à-vis the class members. It is noted that the Petitioner filed, after leave was granted, a response to the Respondent’s supplementary pleading, in which it added a response to its claims.

Discussion and decision

10. We decided to hear the motion as if leave had been granted and an appeal filed according to the leave granted. As aforesaid, the motion for leave to appeal before us has undergone various twists and turns since it was filed. The issue now before us is the applicability of the Settlement that was approved in the United States to the class proceeding that the Petitioner filed in Israel. The question is whether approval of the Settlement in the United States establishes res judicata vis-à-vis the Petitioner and vis-à-vis the class that he purports to represent in Israel, so as to bring an end to the proceeding that he initiated.

Res judicata arising from a judgment issued in a foreign country

11. In order for the Respondent to establish a claim of res judicata due to a judgment that was issued in a foreign country, the judgment must undergo a process of “acceptance” in Israel, pursuant to Israeli law. “So long as the foreign judgment has not undergone a process of acceptance, it has no status in Israel at all, either for the purpose of enforcement thereof in Israel or for the purpose of recognition thereof as a res judicata; it is treated as never having existed” (Celia Wasserstein Fassberg “On the Finality of Foreign Judgments”, 18 Mishpatim 35, 53 (1988); also see CApp 499/79 Ben Dayan v. ADS International Ltd., IsrSC 38(2) 99, 103 (per M. Ben-Porath, D.P.) (1984) (hereinafter: the Ben Dayan case)). The acceptance of a foreign judgment in Israel is mainly regulated in the Foreign Judgment Enforcement Law. The Foreign Judgment Enforcement Law comprises several “tracks” for acceptance of a foreign judgment: declaration of the foreign judgment as an enforceable judgment (secs. 3-10 of the Law), direct recognition of the foreign judgment (sec. 11(a) of the Law) and indirect or “incidental” recognition of the foreign judgment (sec. 11(b) of the Law) (see the survey in CApp 4525/08 Oil Refineries Ltd. v. New Hampshire Insurance Co., paras. 16-19 of the opinion of E. Arbel, J. (December 15, 2010); CApp 1297/11 Levin v. Zohar, paras. 5-6 of the opinion of N. Hendel, J. (December 29, 2013) (petition for further hearing dismissed in CFH 304/14) (hereinafter: the Levin case); Nina Zaltzman Res Judicata in Civil Proceedings, 565-566 (1991) (Hebrew)). It was ruled that when a party in a proceeding in Israel claims the existence of res judicata due to a foreign judgment, the appropriate track is that of indirect recognition of the judgment, pursuant to Section 11(b) of the Law (see Ben Dayan at p. 112 (per A. Barak, J.); CApp 490/88 Basilius v. Adila, IsrSC 44(4) 397, 404 (1990) (the Basilius case); C.A. 970/93  Attorney General v. Agam, IsrSC 49(1) 561, 568 (1995) (per E. Goldberg, J.); CApp 3294/08 Goldhar Corporate Finance Ltd. v. S.A. Klepierre, para. 6 (September 6, 2010) (hereinafter: the Goldhar case)). Section 11(b) of the Law prescribes that “incidentally to a hearing on a matter that is within the jurisdiction thereof and for the purpose of such matter, a court or tribunal in Israel may recognize a foreign judgment, even if subsection (a) does not apply thereto, if it deems it is lawful and just to do so”.
12. Among the considerations that the court must examine as to whether “it is lawful and just” to recognize the foreign judgment, it has been held that it may look to sec. 6 of the law, which lists events, upon the occurrence of which a foreign judgment will not be enforced in Israel. Another source to which it is customary to refer in this context is English law (see Goldhar, para. 6, and the authorities cited there). One of the considerations usually examined is whether the court issuing the foreign judgment held jurisdiction. However, in this regard it was ruled that if a person cooperated with the conduct of the proceedings at the foreign court and did not challenge the court’s jurisdiction there, he may not argue that they were conducted ultra vires ( the Goldhar case, para. 7; Ben Dayan, at p. 106 alongside the letter D (per M. Ben-Porath, D.P.); Amos Shapira “Recognition and Enforcement of Foreign Judgments” (Part Two), 5 Iyunei Mishpat 38, 51-52 (1976)). 

13. Another central criterion to be considered is whether the right of the counter-litigant to due process was prejudiced at the foreign court, or whether the proceedings conducted therein were inconsistent with the rules of natural justice. The main argument that is usually raised in this context is that the litigant with respect for whom the recognition of the foreign judgment is requested was denied a fair opportunity to raise his arguments before the foreign court (see the Levine case para. 6 of the opinion of N. Hendel, J; Basilius, p. 406; CApp 221/78 Ovadia v. Cohen, IsrSC 33(1) 293, (1979)hereinafter: the Ovadia case)). The burden of proof with respect to the violation of the right to due process is imposed on that litigant who argues the violation (see, ibid., p. 296 (per M. Ben Porath, J.); CApp 1268/07 Greenberg v. Bamira, para. 13 (March 9, 2009) hereinafter: the Greenberg case)).
14. Various additional  considerations that case law notes in this respect are whether the recognition of the foreign judgment is repugnant to public policy (see the Ben Dayan case, p. 107 (per M. Ben Porath, D.P.); for regarding broader discussion, see also Amos Shapira "The Recognition and Enforcement of Foreign Judgments", 4 Iyunei Mishpat 509, 530-534 (1974)), and whether the seeker of recognition acts in good faith (see:. Goldhar, para. 8). It should be noted that an indirect recognition of a foreign judgment pursuant to sec. 11(b) of the Law, does not require mutual treaty between Israel and the country wherein the judgment was issued (as distinguished from direct recognition pursuant to sec. 11(a) of the Law; see: Levine, para. 6 of the opinion of N. Hendel, J.). It should be further be emphasized that within the recognition of the foreign judgment, the correctness of the judgment on its merits is not to be examined (see: Basilius, p. 406; Greenberg, para. 10).
15. A finding by the Israeli court that the foreign judgment should be (incidentally) recognized does not conclude the matter, and the court must still determine whether the recognized judgment establishes res judicata in Israel. Different opinions have been expressed in the case law in this regard as to whether such a review should be carried out according to Israeli law or also according to the laws of the foreign country (see: Basilius, p. 411; Goldhar, para. 6). In any case, the foreign law applicable to the matter is a fact that requires proof (ibid., para. 9). However, one can also make recourse to the parity of laws presumption, whereby there is a presumption that the foreign law is identical to the Israeli law (see: Basilius, p. 411).

Indirect recognition of a judgment in a class action issued in a foreign country

16. In this age of globalization, more and more class actions cross international borders and comprise class members from different countries and even continents (see: Guidelines for Recognizing and Enforcing Foreign Judgments for Collective Redress, International Bar Association 6 (2008) (hereinafter: the IBA Guidelines)). This is also relevant to class actions under securities law, since in this area the trading of securities is also becoming increasingly cross-border (see: ibid., p. 17). That being the case, how should we examine whether it would be "lawful and just" (as per the language of sec. 11(b) of the Enforcement of Foreign Judgments Law) to recognize a judgment in a class action that was issued in a foreign country? How is the recognition of a foreign judgment in a class action different from the recognition of a foreign judgment pertaining to a non-class action?
17. In a proceeding (in personam) that is not a class action, only the rights and obligations of the litigants who are present in court are heard and decided. Conversely, a class action is a proceeding which contemplates, inter alia, the rights and obligations of additional players, who are absent from the court room, namely the class members. In a class action, the lead plaintiff seeks to conduct a proceeding on behalf of the class members, and the outcome of the class action might bind them, for better or for worse (see Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011): "The class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only' (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979); Hansberry v. Lee, 311 U.S. 32, 40-41 (1940)). Hence, prior to a recognition of a foreign judgment in a class action, the rights of the class members should be considered, as well as the concern regarding the violation thereof (see: John P. Brown, “Seeking Recognition of Canadian Class Action Judgments in Foreign Jurisdictions: Perils and Pitfalls,” 4(2) Canadian Class Action Rev. 220, 222 (2008)) (hereinafter: Brown).
18. The aforesaid is particularly relevant in relation to a class settlement certified by a court in a foreign jurisdiction. A class settlement has a great potential of discrimination against the rights of the class members, since the lead plaintiff and the defendant may collaborate in negotiation and reach agreements that harm the class members and at their expense. There is a concern that the two may agree to high legal fees and compensation to the lead plaintiff and his counsel, in return for an agreement that is not optimal for the represented class. The agreement can be harmful to the class members in two main ways: compensation which is lower than what would be reasonable for each one of the class members, or an expansion of the scope of causes of action in respect of which res judicata shall be established following the certification of the agreement (see: Amir Weizenbluth "Adequate Representation in Class Settlements") 43(1)  Mishpatim 351, 366-367 (2012) (hereinafter: Weizenbluth); Greenberg v. Procter & Gamble Co. (In re Dry Max Pampers Litig.), 724, F. 3d (6^th Cir. 2013) 713, 715).
19. In the case of a number of class proceedings pertaining to the same issue and conducted in different tribunals, and when a settlement is achieved in one of these proceedings, the said concern for harming the class members is further intensified. First of all, from the perspective of the lead plaintiffs and their counsel in the various proceedings, the situation generates competition over the compensation and counsel fees which will be awarded upon the conclusion of the proceeding, since even if the proceedings are not consolidated, it is unlikely that compensation and legal fees will be awarded against the same defendant in more than one proceeding (however, see para. 21 below). Therefore, the lead plaintiffs and their counsel have an incentive to rush the negotiations and reach a settlement with the defendant as quickly as possible. The faster they reach the settlement, and the more expansive the settlement is, the better they can "ploy" their competitors, the lead plaintiffs and their counsel in the other proceedings. On the other hand, a lead plaintiff who chooses to pursue the proceeding to its conclusion, or to start negotiating at a later stage thereof, may leave empty handed. There is no doubt that at times such conduct might be at the expense of the class members and involve their inadequate representation (see John C. Coffee, Jr., “Class Wars: the Dilemma of the Mass Tort Class Action,” 95 Colum. L. Rev. 1343, 1370 (1995) (hereinafter: Coffee, “Class Wars"): "The first team to settle with the defendants in effect precludes the others (who may have originated the action and litigated it with sufficient skill and zeal that the defendants were eager to settle with someone else"; Samuel Issacharoff & Richard A. Nagareda, “Class Settlements Under Attack,” 156 U. Pa. L. Rev. 1649, 1666 (2008) (hereinafter: Issacharoff & Nagareda). We explained elsewhere the lead plaintiff’s incentive to be the first to file the motion for class certification (see LCA 4778/12 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel Ltd. v. Naor, para. 7 (July 19, 2012); LCA 4253/14 Halfon v. Shemen Oil and Gas Resources Ltd., para. 10 (December 29, 2014)). When several class proceedings treat the same causes of action and are conducted concurrently in several courts (whether in the same country or in different ones), the lead plaintiffs and their counsel have another incentive, which is to be the first to conclude the proceeding. These two incentives (to be the first to initiate the proceeding and the first to conclude it), might prejudice the quality of representation of the class members.
20. The concern for harm to the class members also exists from the perspective of the defendant. In view of the "competition" between the various lead plaintiffs, the fear arises that the defendant may choose to focus on the proceeding in which he deems the lead plaintiff and the forum to be most convenient, in an attempt to promote negotiation for settlement in that proceeding. By such conduct, which American law refers to as  "reverse auction", the defendant attempts to identify a class proceeding, among those filed against him, in which he can reach a favorable settlement, and which encompasses the causes of action that are contemplated in the remaining proceedings (see: Reynolds v. Benefit Nat'l Bank, 288 F.3d 277, 282 (7^th Cir. 2002); Coffee, “Class Wars,” p. 1372; Myriam Gilles & Gary B. Friedman, “Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers,” 155 U. Pa. L. Rev. 103, 161-162 (2006)). We would note that also in cases in which no settlement is achieved, the defendant can act to expedite the hearing of a class action that he deems convenient, and procrastinate in others, thus influencing the forum before which the arguments against him shall be heard (see Arthur R. Miller & David Crump, “Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts,” 96 Yale L.J. 1, 24 (1986); also see Henry P. Monaghan, “Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members,” 98 Colum. L. Rev. 1148, 1160-1161 (1998) (hereinafter: Monaghan)).
21. Indeed, a defendant who follows this path assumes the risk that an unfair settlement that he entered into shall eventually not be recognized by other tribunals, and he may be charged with additional payment to the class members or any part thereof (see Brown, p. 220; IBA Guidelines, p. 9-10; Tanya J. Monestier, “Is Canada the New Shangri-La of Global Securities Class Actions?” 32 NW J. Int'l L. & Bus. 305, 334 (2012)). That risk might be an incentive to the defendant to avoid executing an unfair settlement that prejudices the rights of class members. However, sometimes this is a calculated risk taken by the defendant.
22. As we can see, there is a difference between the recognition of a foreign judgment in a class action and the recognition of a foreign judgment in a non-class action, in terms of the identity of the litigant whose rights are feared to be harmed. In a non-class proceeding, the recognition would normally not raise any particular difficulty for the plaintiff in the foreign tribunal, since he is the one who initiated the proceeding there. Usually, the question under consideration would be whether the rights of the defendant in the foreign tribunal were prejudiced. On the other hand, in class proceedings, the recognition of the foreign judgment is usually requested by the defendant, attempting to establish res judicata in regard to the represented class (after the defendant has completed, successfully according to him, a class proceeding in a foreign tribunal). In that case, the question is whether the rights of the class members were prejudiced by the local tribunal. The Canadian court explained this issue, as follows (Currie v. McDonald's Restaurants of Canada Ltd. 74 O.R. (3d) 321, 330 (Ont. C.A. 2005) (hereinafter: the Currie case)):

"In a traditional non-class action suit, there is no question as to the jurisdiction of the foreign court to bind the plaintiff. As the party initiating proceedings, the plaintiff will have invoked the jurisdiction of the foreign court and thereby will have attorned to the foreign court's jurisdiction. The issue relating to recognition and enforcement that typically arises in whether the foreign judgment can be enforced against the defendant.

Here, the tables are turned. It is the defendant who is seeking to enforce the judgment against the unnamed, non-resident plaintiffs. The settling defendants, plainly bound by the judgment, seek to enforce it as widely and as broadly as possible in order to preclude further litigation against them".

The considerations to be taken into account for incidental recognition of a foreign judgment in a class action

23. We shall now return to the Enforcement of Foreign Judgments Law. It would seem that nothing prevents the application of sec. 11(b) of the Law even to the incidental recognition of a foreign judgment issued in a class action. However, there is a question regarding the manner of implementation of the various criteria that the court must consider in this context, in view of the aforementioned special characteristics of the recognition of a foreign judgment in a class proceeding (on the need to adapt the regular rules for the enforcement and recognition of a foreign judgment in a class action, see Brown, p. 222; for a review of the guidelines established in this respect by the International Bar Association, see the abovementioned IBA Guidelines). We would note that the discussion below suits both a foreign judgment that approves a class settlement and a foreign judgment deciding a class action on its merits.
24. As stated above, one of the relevant considerations for the purpose of incidental recognition of a foreign judgment is that the judgment was issued with authority. Presumably, this consideration should also be taken into account also with respect to a foreign judgment that was issued in a class action. However, in my opinion, in the case of a class action conducted abroad, and in view of the various interests that we addressed above, it would be appropriate to require that the foreign court also have a substantial connection to the dispute in the class action. This will reduce the concern for "ploy" by a foreign lead plaintiff and by the defendant in a court which they find convenient and which is unrelated to the dispute, while prejudicing the rights of the represented class. This appears to be the approach in Canada (see the Currie case, p. 328-329, where this test is referred to as a "real and substantial connection" to the forum wherein the judgment was issued; and also see, in English law: Mark Stiggelbout, “The Recognition in England and Wales of United States Judgments in Class Actions,” 52 Harv. Int'l L. J. 433, 464 (2011) (hereinafter: Stiggelbout)). Indeed, in various contexts it was ruled that in order to recognize a foreign judgment incidentally, a sufficient connection is required between the foreign  court and the subject of the proceeding, according to the rules of private international law jurisdiction, in force in Israel (see, for example, regarding the recognition of a bankruptcy order that was issued in a foreign country, MApp 10359/01 Sussman v. the Official Receiver, IsrSC 56(3), 160 (2002); Shlomo Levin & Asher Grunis, Bankruptcy 415 (3rd ed., 2010) (Hebrew)). In this regard, questions arise such as whether a significant part of the represented class is present in the foreign country. Another relevant question is whether the class members could have reasonably anticipated, at the time of engagement with the defendant, that future disputes between them would be decided by the foreign court (see: Currie, p. 332; and cf. LCA 10250/08 Katziv v. Zao Raiffeisenbank, para. 7 (March 18, 2010)). Obviously, also with respect to class proceedings, a litigant who cooperated in a proceeding conducted in the foreign court, and did not challenge the court's jurisdiction, may be deemed as having accepted the jurisdiction of the foreign court (see para 12 above).
25. As noted, an additional consideration that we addressed in regard to the recognition of a foreign judgment is whether the right to due process of the litigant against whom the recognition is requested has been violated. As we saw, in addressing the recognition of a judgment in a class action, the question that would normally arise pertains to the protection of the class members' rights. How must we examine whether the class members right to due process has been violated? United States case law customarily includes three elements in the right of the class members to due process, as follows (Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-812 (1985) (hereinafter: the Phillips Petroleum case)): first, receipt of proper notice regarding the proceeding, and being afforded an opportunity to participate therein; second, being afforded the opportunity to withdraw from the proceeding; and third, appropriate representation by the lead plaintiff (and his counsel) throughout the proceeding (some refer to these elements as "voice"; "exit" and "loyalty", by analogy to the discussion of shareholders rights in corporate law; see Issacharoff & Nagareda, p. 1701; John C. Coffee, Jr., “Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation,” 100 Colum. L. Rev. 370, 376-377 (2000)). These three elements, according to diverse United States case law, are the ones required to secure "due process" for the class members. These elements were recognized as the considerations to be weighed for the recognition of a class action decided by one court as binding the class members in a class action that is heard by another court (see, e.g.: In re Diet Drugs Prods. Liab. Litig., 431 F.3d 141, 145 (3d Cir. 2005) (hereinafter: the Diet Drugs case)); Gotthelf v. Toyota Motor Sales, U.S.A., In., 525 Fed. Appx. 94 (3d Cir. 2013) (hereinafter: the  Gotthelf case)); Debra Lyn Bassett, “U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction,” 72 Fordham L. Rev. 41 (2003)); this is also the common approach in Canada, see the survey in Brown, p. 231-234; also see IBA Guidelines p. 14 and 26-27; Stiggelbout p. 470 and 499-500).  
26. I shall briefly review each of the three aforesaid elements. Regarding a proper notice of the proceeding, it seems there is no need, in the matter at bar, to set hard and fast rules regarding the question what would be considered sufficient notice. In Canada, it was held that personal delivery of notice to each one of the class members is not required (see Canada Post Corp. v Lépine 1S.C.R. 549, para. 43 (hereinafter:  the Lépine case)). On the other hand, there is   a view that personal delivery of notice to each class member is preferred, whenever possible (see: IBA Guidelines p. 27). Obviously, the costs of such publication or delivery of notice should be considered, according to the circumstances of the matter. Regarding the content of the notice, it must include a description of the legal proceedings and the settlement (if any), and an update of the class members of their rights and the expected implications of the proceeding for them. Furthermore, they should be updated regarding their right to appear before the foreign court and to object to a settlement reached there (see: the Lépine case para. 45;the Phillips Petroleum case p. 812).

The right of a class member to withdraw from the class has also been recognized as a central aspect of the right to due process. (see: Currie, p. 333-334). The notice delivered to the class members should also inform them of that option (see: IBA Guidelines, p. 27).

As for the condition that the class members must be adequately represented, in the legal literature we find the opinion that claims of inadequate representation should focus upon conflicts of interests between the lead plaintiff (and his counsel) and the class members, in whole or in part, or conflicts of interests among the class members, as distinct from arguments that representation was inadequate because the compensation awarded by the foreign court is insufficient on its merits, whether by a judgment or by a settlement (see the article of Issacharoff & Nagareda; and also see IBA Guidelines, p. 26; Stiggelbout, p. 474-475; the Gotthelf case, p. 102-103; and also cf: Restatement of the Law, Second, Judgements, para. 42(d)-(e)). A possible conflict of interests may derive from a difference in the applicable law in each one of the countries. If Israeli law favors the class member as compared to the applicable law in the foreign country, a settlement abroad awarding uniform compensation to all class members may raise a concern of improper representation of the class members in Israel. This is the case, inasmuch as uniform compensation will result in the transfer of wealth from the class members in Israel to the class members abroad. In such case, it may not be proper to negotiate on behalf of all of the class members (both in Israel and abroad) in their entirety (see: Issacharoff & Nagareda, p. 1681-1683; Lépine, para. 56; Wolfert v. Transamerica HomeFirst Inc., 439 F.3d 165, 173 (2d Cir. 2006) (hereinafter: the Wolfert case)). Obviously, additional differences among class members in each of the various countries may also lead to conflicts of interests. Similarly, a settlement whereby some of the class members are treated differently, while the whole class was represented as one by a single lead plaintiff, raises concern of misrepresentation of that part of the class (see: Weizenbluth, p. 386-387).

27. Nevertheless, it would seem that an examination of the compensation level and other terms and conditions of a class settlement that was certified overseas, on their merits, should not be ruled out when such compensation, terms, and conditions clearly and manifestly deviate from what is reasonable (see IBA Guidelines, p. 14, where it was recommended that such an examination be conducted when compensation is "patently inadequate"; and also cf: Celia Wasserstein Fassberg Foreign Judgments in Israeli Law – Deconstruction and Reconstruction, p. 76-77 (1996) (Hebrew)). In extreme instances, it would seem that recognition of a foreign judgment in a class proceeding may be denied for repugnance to public policy (see: Stiggelbout, p. 471-472).

28.Another issue that arose in United States case law concerns the circumstances in which a party will be permitted to raise a claim that the right of the class members to due process was not properly protected ina class proceeding heard in another court. Various opinions have been expressed on this issue. According to one approach, such an “indirect challenge” of the proceeding at the other court may be permitted only if no fair opportunity was given to raise the said claimsin the challenged proceeding. In other words, according to this approach, it is enough that an opportunity was available – even if not exploited -- in the challenged proceeding, in order to bar an “indirect challenge” of the outcome of the proceeding (see the majority opinion in Epstein v. MCA, Inc., 179 F.3d 641, 648-649 (9th Cir. 1999)). Conversely, a different position was also expressed in United States case law whereby an indirect challenge of class proceedings should be permitted in a broader spectrum of cases. According to this position, the possibility of claiming that a defect occurred in a class action decision will be barred only vis-à-vis a party who appeared at the challenged proceeding, and only in regard to claims that he raised and that were explicitly decided (see the dissenting opinion of Thomas, J. in Epstein, ibid., at p. 655). According to a third opinion (which may be referred to as the middle approach), if various claims in connection with the right of the class members to a due process were heard and decided by the court hearing the challenge, each party, including a party who did not appear himself at the other court, will be barred from raising the same for a second time in the framework of an indirect challenge. Thus, if a member of the class objects to a class settlement at a foreign court and the foreign court explicitly addresses his claims and rejects them, any other member of the class will also be barred from raising the same claims in an Israeli court (see the dissent of Wiggins J., In re Epstein, ibid., at p. 651;. Diet Drugs, at p. 146; and also see: Wolfert, at p. 172, in which the position was expressed that the class member will be barred from raising in an indirect challenge a claim that was heard and decided in the challenged proceeding, even if the claim was raised therein by the defendant; for a survey of the various positions, see: Issacharoff & Nagareda, at pp. 1652-1653 and pp. 1714-1718, and see: Patrick Wooley, “Collateral Attack and the Role of Adequate Representation in Class Suits for Money Damages,” 58 U. Kan.. L., 917 (2010); also see: IBA Guidelines, at p. 25).

In the matter before us, there is no need to decide among the different approaches. Suffice it to say that weight should certainly be afforded to the foreign court’s decision concerning claims of a denial of due process by the class, if these claims are raised for a second time in an Israeli court. In any event, it appears that according to all of the approaches described above, when the party who raises claims of a denial of due process to the class members is the same party who raised those claims in the foreign court (as occurred in the case at bar), decisive weight should be afforded to the fact that his claims were rejected by the foreign court. In such a case, the rulings of the foreign court may be deemed as establishing a quasi “collateral estoppel” vis-à-vis the party whose claims were rejected, which prevents him from trying his luck for a second time by raising the same claims. In such a case, the party seeking class certification in Israel, who is barred from claiming against defects in the foreign judgment, may also be deemed as lacking a personal cause of action to represent the class members in Israel. See Issacharoff & Nagareda (at p. 1715-1716):

“At the very least, adaptation of preclusion principles for collateral attacks should guard against the situation of a literal ‘do-over’. It would be intolerable to allow a collateral-attack plaintiff to escape the binding effect of a class settlement by raising the same structural defects in the class representation that she previously had raised on direct review in the original court and where she had lost on that precise point… Clearly, there must be finality where the very same class member made the same structural claims in the form of an original objection in the rendering court. No plausible conception of adequate representation can countenance a literal re-presentation of the same structural claim collaterally”.

29.A further matter that should be emphasized pertains to the court’s involvement when deciding whether to recognize a foreign judgment in a class action. In regards to recognition of a foreign judgment that is not in a class action, it was held that “the process of recognition of the foreign judgment, checking all of the recognition conditions, need not be performed in each and every case, and such an examination of the fulfillment of a condition or the existence of a defense against recognition will be performed in accordance with the claims of the party opposing recognition” (the Basilius case, at p. 404, emphasis original – A.G.), as an expression of the adversarial approach prevailing in Israel. However, it is highly doubtful that such an approach is appropriate when we are concerned with class proceedings. It should be borne in mind that, usually, the class members will not have an interest in appearing before the court and raising claims in connection with the consequences of the foreign judgment, due to the low value of the personal cause of action to each of them. Moreover, there is also no assurance that the claims of possible harm to the class members will be presented properly by the party seeking class certification, since the issue of recognition of the foreign judgment will often arise before class certification and before a ruling that the petitioner represents the class members in an appropriate manner and is eligible to act as lead plaintiff. Therefore, and in view of the fact that we are concerned with the rights of persons absent from the courtroom, considerable supervision and involvement are required by the court (see: the Raynolds case, at p. 279-280).

30.A further comment is that when dealing with a proceeding concerning securities, it is necessary to consider sec. 35Z of the Securities Law, whereby, “If action was brought before a Court in Israel under any enactment, on grounds that derive from an interest in the securities of a foreign corporation, the Court may – on application by a party – stay the proceedings in the action, if it learns that action was brought before a Court abroad on the same grounds or on similar grounds, and that until a judgment that is no longer subject to appeal is handed down in that action”. This provision reflects the legislature’s inclination to respect and not frustrate proceedings that are being conducted at a foreign court in connection with companies whose securities are “dual-listed” (see: Amir Licht “Dual Listing of Securities,” 32(3) Mishpatim 561, 617 (2002) (Hebrew)). However, if the proceeding in the foreign country ends in a judgment, the recognition and enforcement thereof must be performed pursuant to the provisions of the Foreign Judgment Enforcement Law. In the proceeding at bar, there is no need to decide whether, in view of Section 35Z above, there is room to relax the conditions for recognition or enforcement of a foreign judgment in regard to a company whose securities are “dual-listed”. 

31.To complete the picture, I will note that the issue of recognition of a judgment in a class action may also arise in the court in which the cross-border class action is heard. In the United States, it has been held that when  a class certification, in which some of the class members are located overseas, is concerned, it is necessary to consider, at the class certification stage, whether foreign courts will recognize the outcome of the proceeding. If the chances that the judgment in the class action will be recognized in the foreign country are not high, this constitutes grounds for not certifying the class action with respect to class members located in such country, in the context of the requirement that for purposes of class certification, it is necessary to examine whether it is the most efficient method of deciding the dispute (see: In re Vivendi Universal, S.A. Sec. LitigIn re Alstom SA Sec. LitigThus, in one case that arose in the United States, the court denied certification of a class action against members of the class located in various countries, including Israel (Anwar v. Fairfield Greenwich, 289 F.R.D. 105, 121 (2013)).

32.If a foreign judgmentin a class action is recognized (indirectly), it is necessary to further enquire as to its significance for the proceeding being heard in Israel. Aside from the question of the foreign judgment’s consequences under the applicable law of the court that issued it (which must be proved as a fact, or if necessary, by recourse to the parity of laws presumption), the significance of the foreign judgment will also be decided according to Israeli law (see para.15, above). It should be borne in mind that if the proceeding is at the stage of the hearing of the motion for class certification, denial of the motion does not establish res judicata vis-à-vis the class members (and see: Smith v. Bayer Corp., 131 S. Ct. 2368, 2379-2382 (2011) (the Smith case)). The consequences of recognition of the foreign judgment affect only the party filing the class certification motion. It may of course be wondered what is the practical reason for the filing of an additional, identical class proceeding by another class member, but this is the outcome whenever a class certification motion is denied (although it has been ruled that the denial of a class certification motion may also have certain repercussions for a later class certification motion concerning the same issue and filed by another lead plaintiff; see CC (Tel Aviv District Court) 1043/00 Rosenfeld v. The Social Security Covenant Implementation Organization (October 24, 2002) (Justice E. Hayut), appeal denied in CApp 10688/02 (March 27, 2003); CApp 2505/06 Becker v. Cellcom Israel Ltd., paras. 16-17 (December 9, 2008)).

In addition, if the party seeking class certification (or the lead plaintiff, if the class action has been certified) has asserted his claims at the foreign court and his claims there were rejected, as we have seen above, he himself will be barred from raising these claims for a second time in the Israeli court (see the discussion in para. 28). In such a case, too, the consequences of the recognition of the foreign judgment apply only to him, and it is possible that if another member of the class files a new proceeding on the same issue, the court will be required to address the claims regarding the due process claims of the class members on the merits.

33.To summarize our discussion thus far: a foreign judgment in a class action may be recognized incidentally. This recognition is conducted pursuant to sec. 11(b) of the Foreign Judgment Enforcement Law, according to which the foreign judgment may be recognized if “it is lawful and just to do so”. A first consideration that must be taken into account is whether the foreign judgment was issued by a court with jurisdiction to hear the proceeding. In this context, it is also necessary to examine whether the foreign court has a substantial link to the issue being heard in the class action. The participation of the lead plaintiff or the party seeking class certification in the proceeding in the foreign court may be deemed as consent to the foreign court’s jurisdiction. A further consideration is whether the right to due process of the members of the represented class was violated. In this regard, three main elements must be addressed: serving proper notice to the class members of the class proceeding in the foreign court and affording the class members an opportunity to participate therein; giving the class members an opportunity to withdraw from the proceeding; and adequate representation of the class members by the lead plaintiff (and his counsel) at the foreign court throughout the conduct of the proceeding. Examination of the outcome of the class action in the foreign court on the merits (or examination of a settlement that was approved in a foreign country on the merits) will only be performed in cases in which the outcome is clearly and manifestly unreasonable. Similarly, the foreign judgment will be denied recognition for repugnance to public policy only in exceptional cases. Weight should further be afforded to the fact that the claims being raised against recognition of the foreign judgment were already heard and decided by the foreign court. In addition, decisive weight should be afforded to the fact that the party raising the claims against recognition of the foreign judgment in Israel raised these claims himself in the foreign court, and his claims there were rejected.

If the court finds that the foreign judgment should be recognized, what is its significance for the proceeding being held in Israel? The consequence of the foreign judgment pursuant to the foreign law is a fact that needs to be proven, and insofar as necessary, the parity of laws presumption may be drawn on. According to Israeli law, if the proceeding in Israel is a class proceeding which is at the stage of class certification, denial of the class certification motion does not establish res judicata vis-à-vis the class. In such a case, recognition of the foreign judgment applies only to the party filing the class certification motion. In a case in which the foreign judgment is recognized without hearing the claims in connection with the right of the class to due process on the merits, because the party seeking class certification (or the lead plaintiff) are barred from raising the same, recognition of the foreign judgment is applicable only to the party seeking class certification (or the lead plaintiff).

From the general to the particular

34.There is no doubt that the manner in which the motion for leave to appeal at bar was heard is irregular. The proceeding underwent many twists and turns while it was pending before this court. In this framework, the parties submitted evidence regarding the developments that occurred over time in a manner which is inconsistent with the regular conduct of a proceeding in a court of appeals (although it is emphasized that the parties did not object to the filing of this evidence). There is a dispute between the parties on the adequacy of the notice that was given in Israel regarding the class proceeding in the United States, on the opportunity that was given to the class members in Israel to withdraw from the Settlement, and on the adequate representation of the class members in Israel before the foreign court. Hence, the question arises as to whether it was correct to remand the case to the trial court in order that it hear such new evidence and decide these disputes between the parties.

35.However, ultimately I reached the conclusion that there is no point in remanding the case to the trial court. Based on the material before us, it appears that it may clearly be ruled that the foreign judgment that was issued in the class proceeding in the United States should be recognized, and that such recognition leads to denial of the Motion for Class Certification in Israel. First, and with regards to the issue of jurisdiction, the Petitioner appeared at the court in the United States and raised his claims on the merits in his objection to approval of the Settlement. The Petitioner did not refer us to where he denied the jurisdiction of the court in his pleadings that were filed in the United States  (I would add that inspection of the Petitioner’s claims in the supplementary pleading reveals that he, indeed, did not deny the jurisdiction of the court in the United States to hear the proceeding; paras. 50-52 of the supplementary pleading on behalf of the Petitioner, and para. 12 of the Petitioner’s response to the supplementary pleading on behalf of the Respondent). The Respondent referred us to a pleading that was filed by the Petitioner with the California Federal Court in which he explicitly asserted that his claims against the Settlement ought to be heard in the United States and not in Israel (para. 32 of the supplementary pleading on behalf of the Respondent, which refers to Chapter III of Exhibit 27 to the supplementary pleading on behalf of the Petitioner). By his said conduct, and in the absence of an argument from the Petitioner on the issue of the convenient forum for a factual hearing at the trial court, he should be deemed as having agreed to the jurisdiction of the court in the United States It also appears that there can be no real dispute that the class proceeding has a substantive link to the United States in view of the fact that it concerns trade in securities of a United States company which was mainly performed in the United States.

36.With regard to the Petitioner’s claims of a violation of the right of the class members in Israel to due process, as specified above, decisive weight should be afforded to the fact that the Petitioner himself already raised these claims before the California court, and that they were heard there and rejected. I will briefly review the California court’s rulings on the matter (decision of February 18, 2014, Exhibit 29 to the supplementary pleading on behalf of the Petitioner). After having heard the Petitioner’s claims at the hearing held before it, the California court found that the Settlement was reasonable and fair vis-à-vis investors from Israel. The court added that the Petitioner’s claims regarding inadequate representation of the class members were not proven. In this context, it was held that the Petitioner did not prove that the class members from Israel ought to receive higher compensation due to a difference between securities law in Israel and such law in the United States The California court referred to the ruling of the District Court in Israel, whereby the law that applies to the Motion for Class Certification in Israel is United States law. The California court further added that the class proceeding in Israel is still in its infancy. Under these circumstances, the California Federal Court ruled that the Petitioner had “a long road ahead” in order to succeed in the proceeding that he had initiated in Israel. The California court’s said conclusion appears quite logical under the circumstances. The California court also referred in its decision to the relatively high rate of participation of investors from Israel in the Settlement. It transpires from the data presented in such decision that the rate of participation of Israeli investors in the settlement was considerably higher than their percentage in the entire class represented in the class proceeding in the United States It was held that these data reveal that the class members in Israel were aware of the Settlement, and also that they undermine the Petitioner’s claims in connection with the manner of representation of these class members. The court also rejected the Petitioner’s claim in connection with the implications of the judgment in the Morrison case. Finally, the United States court ordered the publication of an additional notice regarding the fact of the Settlement among the class members in Israel, and extension of the date for the filing of the Entitlement Forms by them.

37.As we can see, the Petitioner’s claims were heard in detail by the California court and rejected. Under these circumstances, there is no room to permit the Petitioner to raise his claims yet again in the Israeli court, even according to the broadest approach to an “indirect challenge” of a class proceeding (see the discussion in para. 28 above). Indeed, there is no claim before us on the part of any member of the class in Israel, apart from the Petitioner, asserting that he did not receive adequate notice of the class proceeding in the United States, or that his rights were violated in any way. All we have before us is the Petitioner whose claims were already raised and rejected by the foreign court. Hence, there is no reason to accept the Petitioner’s claims regarding a violation of the class’s right to due process, and there is also no reason to remand the case to the trial court to hear his claims. I will add that the Petitioner has no serious, arguable claim with regards to the body of the terms and conditions of the Agreement, which claim, as aforesaid, will only be heard in exceptional cases. The conclusion is that there is no impediment to recognizing the foreign judgment pursuant to sec. 11(b) of the Foreign Judgment Enforcement Law.

38.Notwithstanding my said conclusion, I will not deny that I am dissatisfied with the manner in which the Respondent conducted itself. In the Settlement itself, no explicit reference is made to the fact that a considerable portion of the class members are persons who are located in Israel and purchased shares of the Respondent on TASE. This matter was subsumed in the manner in which the represented class was defined (sec. 1.3 of the Settlement, whereby the class members are any person who purchased shares of the Respondent in the relevant period “on any domestic or foreign exchange or otherwise”). The manner in which it was stated that the notices of the fact of the Agreement would be announced in the newspapers is particularly puzzling: “once in Investor’s Business Daily, once in Globes, and once over the Business Wire” (sec. 6(b) of Appendix A to the Agreement), without stating that the second of the three newspapers is an Israeli newspaper. In addition, on the Entitlement Form the class members were required to declare that they had not initiated a proceeding in connection with the subject matter of the Settlement, and that they are not aware of such a proceeding having been filed on their behalf (sec. IV of Appendix A2 to the Settlement). Clearly, this declaration is not true with respect to the class members in Israel in view of the filing of the Motion for Class Certification in Israel. Moreover, in one of the pleadings that was filed in the framework of the hearing on approval of the Settlement (on behalf of the lead plaintiff in the United States), an attempt was made to convince the court that the class is homogeneous, and then too, without saying a word about the difficulty presented by the fact that a considerable portion of the class members is located in another country, and in whose regard there is an additional class proceeding (Exhibit 7 to the supplementary pleading on behalf of the Petitioner).

Moreover, it transpires from the documents that the Respondent attached to the supplementary pleading on its behalf, that it filed several affidavits with the California court regarding the manner in which the Settlement was announced and regarding the pace of implementation thereof (Exhibit 2 to the supplementary pleading on its behalf). In the first of the affidavits that were attached, of December 16, 2013, no explicit mention was made of the existence of the class members in Israel. Then, too, the notice in the “Globes” newspaper was described alongside the other notices that were published in the United States, without stating that this notice was made in Israel. On December 30, 2013, the Petitioner filed his objection to the Settlement (Exhibit 20 to the supplementary pleading on behalf of the Petitioner). Subsequently, on January 16, 2014, an additional affidavit was filed by the Respondent, and this time providing substantial details regarding the existence of the class members in Israel, the notices that were sent to them, and the rate of response on their part according to the Settlement. This affidavit finally stated that the “Globes” newspaper is a newspaper distributed in Israel, and that this notice of the settlement was made in Israel. This conduct raises a suspicion that, prior to the filing of the objection by the Petitioner, the Respondent, together with the lead plaintiff in the United States, tried to underplay the fact of the existence of the class members in Israel.

Indeed, at the time of the hearing in the California court on the Petitioner’s objection to approval of the Settlement, the court expressed irritation that it was not aware of this problematic aspect of the Agreement (pp. 56, 62 and 68-69 of the transcript of the hearing of February 14, 2014, Exhibit 28 to the supplementary pleading on behalf of the Petitioner). The court was also troubled by the adequacy of the notice that was given to the class members in Israel, and even informed the Respondent of the concern of a future indirect challenge of the approval of the Settlement (ibid., at p. 24, line 22ff., and at p. 63). In view of the court’s comments at the hearing, the Respondent published an additional notice of the Settlement in Israel, this time in Hebrew, and the date for the filing of the Entitlement Forms by the class members in Israel was also extended.

39.In my opinion, there is no doubt that the Respondent ought to have clearly informed the California court of the problem presented by the existence of the class members in Israel, at its initiative and at the stage of the filing of the Settlement for the court’s approval. A separate and in-depth hearing on the Settlement and the motion to approve it ought to have been dedicated to the issues concerning the existence of no few class members from outside of the United States However, although this was not done, ultimately the California court was informed of the foregoing difficulty, it explicitly addressed it, and decided the issue. This was done following the objection that the Petitioner filed to the Settlement, and to his credit, it is noted that the objection led to the publication of an additional notice of the settlement in Israel and to the extension of the date for the filing of the Entitlement Forms. In any event, once the California court addressed the matter, and decided as it did, there is no room to permit the Petitioner to try his luck by raising the same claims once again in Israel.

40.Having reached the conclusion that the judgment approving the Settlement in the class proceeding in the United States should be recognized, the question arises as to the implications thereof for the Motion for Class Certification in Israel. The Respondent filed an expert opinion in respect of the significance of the judgment in the United States, but it appears that in this regard too, there is no point in remanding the case to the trial court for a factual hearing of the issue. The fact that the foreign judgment establishes res judicata pursuant to United States law is quite clear in view of the provisions of the Settlement, and in view of the definition of the represented class according to the Settlement. The Petitioner has no good claim in connection therewith. It is noted that the judgment that was issued in the United States is final (it is noted that another class member filed an appeal from the judgment with the Federal Court of Appeals and the appeal was denied by consent: Exhibit 1 to the supplementary pleading on behalf of the Respondent). Although the California court ruled that it was not deciding upon the consequences of approval of the Settlement in respect of the proceeding being held in Israel, this is inconsequential. Leaving the significance of a judgment to a proceeding in another country as an open issue to be decided by the court in the other country is a technique used by courts from time to time (see the survey in Brown’s article, at pp. 224-226; and see the Smith case, at p. 2375). The question of the significance of the foreign judgment in Israel is determined by the court in Israel, as we shall now do.

With respect to the implications of the foreign judgment in Israel pursuant to Israeli law, the proceeding is at the class certification stage. Therefore, the implications of recognition of the foreign judgment are vis-à-vis the Petitioner only, and not vis-à-vis the class in Israel. This is particularly true when the claims regarding violation of the right of the class members to a process were not heard by us on the merits, since the Petitioner himself is barred from raising the same.

41.We find, under the circumstances created, there is no point in remanding the case to the trial court for a factual hearing on the parties’ claims. The parties were given a full opportunity to present their claims on the matter before us. It should be recalled that a court of appeals has broad jurisdiction to decide disputes between the parties, and in this context the court of appeals is granted jurisdiction to issue any decision that may be issued by the trial court, and to issue a decision in favor of the respondent even without the filing of an appeal or a counter-appeal on its part (see sec. 462 of the Civil Procedure Regulations, 5744-1984).

42.However, I would reemphasize that as aforesaid, in my judgment no examination was performed on the merits of the claims in connection with the right of the class members in Israel to due process, since the Petitioner himself is barred from raising such claims after he raised them in the United States and they were rejected there. Therefore, if, in the future, these claims are raised by another member of the class in Israel, the competent court may be required to address the same on the merits. In such an examination, weight will probably also be afforded to the rulings made at the California court (and see para. 32 above). I, of course, express no position with regard to the fate of such a proceeding.

Final comment

43.In CApp 3441/01 Anonymous v. Anonymous, IsrSC 58(3) 1, 23 (2004), Chief Justice A. Barak stated (not in connection with class actions):

“In today’s reality, many Israeli citizens litigate outside of Israel. We are indeed living in a world that is becoming ‘one large village’ (LCA 2705/97 Hageves A. Sinai (1989) Ltd. v. The Lockformer Co., at p. 114). In this reality, motions to recognize foreign judgments of all types and varieties are becoming commonplace. The various dilemmas arising from the issue must be regulated in legislation. The dilemmas revolving around this proceeding will prove the extent to which the issues are complex, and ought to be given a detailed and structured legislative solution”.

With this I concur. The manner in which foreign judgments in class actions are recognized ought to be regulated in legislation. Thus, the certainty with regards to the conditions required for recognition of a foreign judgment in a class action will increase, and the parties will be able to plan their steps accordingly.

44.In conclusion, I propose to my colleagues that we hold that the Settlement that was approved in the class proceeding in the United States be recognized in Israel for purposes of the class proceeding in Israel. Hence, the motion for class certification that was filed in Israel should be denied, and we so order. In view of the Respondent’s conduct, which I specified above, I propose that we make no order for costs.

President (ret.)

Justice U. Vogelman:

 

I concur.

                                                           

 

Justice N. Sohlberg:

 

I concur.

                                                           

 

 

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

 

Given this day, Nissan 13, 5775 (April 2, 2015)

 

 

 

President (ret.)                        Justice                         Justice

 

H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

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

[July 20, 1951]

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

 

 

 

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

           

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

               

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

 

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

               

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

 

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

               

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

               

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

 

English case referred to:

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

 

American cases referred to:

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

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

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

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

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

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

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

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

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

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

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

 

SMOIRA P., giving the judgment of the court.

 

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

            The following facts are set out in the petition.

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

 

            The petition also contains the following submissions:

           

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

           

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

           

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

           

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

           

            This is a summary of the petition.

           

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

           

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

           

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

           

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

           

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

           

            The Attorney-General submitted two arguments: -

           

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.