Courts

C.A. 238/53

 

           

AHARON COHEN and BELLA BOUSSLIK

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[January 15, 1954]

Before Cheshin J., Silberg J., and Sussman J.

 

 

 

 

Family law - Husband and wife - Form of marriage ceremony - Impediment of marriage - Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 - Alteration of substantive rights - No retrospective effect - Declaratory order.

 

                The appellants, Aharon Cohen and Bella Bousslik, went through a  form of marriage ceremony in the office of their advocate. They had previously requested the Rabbinate to marry them but since the petitioner, Cohen, was regarded as of, Priestly stock and Bella Bousslik was a divorcee, the Rabbinate refused to solemnize their marriage because of the Biblical injunction forbidding the marriage of a "Cohen" and a divorced woman.

               

                The office of the Registration of Inhabitants refused to register Cohen as a married man and the appellants then sought a declaration in the District Court that they were lawfully married. After the case had been heard but before judgment, the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, was passed by the Knesset. Section 1 of this Law1⁾ confers exclusive jurisdiction in matters of marriage of Jews in Israel, being nationals or residents of the State, upon the Rabbinical Courts. The District Court declined to make the declaration sought, and the appellants appealed.

           

            Held by a majority (Silberg and Sussman JJ.)

               

1) As the Rabbinical Courts Jurisdiction (Marriagge and Divorce) Law, 1953, alters substantive rights it does not operate retrospectively and the District Court had jurisdiction to make the order sought.

 

2) Notwithstanding the Biblical prohibition of a marriage between a "Cohen" and a divorcee, once such a marriage has been entered into in a manner recognised by Jewish law, that law regards them as husband and wife.

 

3) In the present case the marriage had been entered into in a manner recognised by Jewish law (by the intended husband handing the intended wife something of value, namely, a ring, in the presence of two witnesses) and accordingly the petitioners were entitled to the declaration sought.

 

Held by Cheshin J. dissenting:-

 

1) The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, affected procedure only, and operated with retrospective effect, and the District Court accordingly had no jurisdiction.

 

2) The granting of a declaratory order is a matter within the discretion of the courts and in the circumstances of the present case that discretion should be exercised against the petitioners and the order refused.

 

Palestine cases referred to:

 

(1)   C.A. 22/42 - Olga Waldar (also known as Azgour) v. Samuel Azgour and Another; (1942), 9 P.L.R. 328.

(2)   Cr. A. 4/38 - Abdul-Rahim Muhammad Nassar v. Attorney-General;(1938), 5 P.L.R. 65.

(3)        Cr. A. 6/38 - Issa Jaber Abou Iswai v. Attorney-General;(1938), 1 S.C.J. 64.

(4)        C.A. 158/37 -Leib Neussihin and Others v. Miriam Neussihin ; (1937), 4 P.L.R. 373.

(5)   C.A. 240/37 - Palestine Mercantile Bank Ltd. v. Jacob Fryman and Another; (1938), 5 P.L.R. 159.

(6)        H.C. 22/39 - Zussman Stark v. Chief Execution Officer, Tel Aviv and Another; (1939), 6  P.L.R. 323.

(7)   L.A. 136/26 - Saleh Salah Hamdan and Others v. Ma'mour Awkaf Nablus and Another; (1926), 3 C.O.J. 1119.

(8)   H.C. 76/36 - Josef Babayoff v. Chief Execution Officer, Jerusalem and Another; (1936), 4 P.L.R. 19.

(9)   C.A. 92/42 - Municipal Council of Jerusalem v. Hevrat Harchavat Hayishuv B'eretz Israel; (1942), 9 P.L.R. 503.

(10) C.C. 117/45, Tel Aviv-Moshe Nathaniel v. Joseph Cohen and Others; (1945), S.D.C. 695; C.A. 5/46 - (1947), 14 P.L.R. 313 (on appeal).

(11) C.A. 190/35 - Esther Banin v. Moshe Banin; (1936), 3 P.L.R. 71.

(12) H.C. 5/42 - Israel Rokach v. The District Commissioner, Lydda District, Jaffa and Others; (1942), 9 P.L.R. 191.

(13) H.C. 1/37 - Rivka Silberstein and Others v. Constable in Charge of the Police Lock-up, Haifa and Another; (1937), 1 S.C.J. 13.

(14) Motion 190/43, Jerusalem - Dr. Raphael Ossorguine and Others v. The Hotzaah Ivrith Ltd.; (1943), S.D.C. 144.

(15) C.C. 267/47, Tel-Aviv - Mordechai and Le'ah Levin v. Local Council Ramat Gan; Hamishpat, (1948), Vol. 3, 296.

 

Israel cases referred to:

 

(16)      H.C. 149/51 - Zigfrid Garler v. Maya Garler and Others; (1951), 5 P.D. 1399.

(17) H.C. 293/52 - Edna Amitsaur v. Chief Execution Officer, District Court, Tel Aviv and Others; (1953), 7 P.D. 98.

(18) Cr. A. 122/51 - Dov Ben-Avraham Ogapel and Others v. The Attorney-General; (1951), 5 P.D. 1672.

(19) Cr. A. 121/51 - David Epstein v. The Attorney-General, (1953), 7 P.D. 169.

(20) H.C. 71/49 - Izhak Kwatinski v. District Commissioner, Jerusalem and Others; (1950), 4 P.D. 815.

(21) C.A. 26/51 - Shimon Cotic v. Tsila (Tsipa) Wolfsohn ; (1951), 5 P.D. 1341.

(22) A. v. B. Appeal No. 1/60/706; (1950), Rabbinical Courts of Appeals (Collected Judgments), p. 132.

 

English cases referred to:

 

(23)      Marie Tilche Sasson v. Maurice Sasson; [1924] A.C. 1007.

(24)      Abbot v. The Minister for Lands; (1895), 72 L.T. 402.

(25)      Hitchcock v. Way; (1837), 112 E.R. 360.

(26)      In re Athlumney; Ex parte Wilson; [1898] 2 Q.B. 547.

(27)      In re Joseph Suche and Co., Limited (1875), 1 Ch.D. 48.

(28)      Hutchinson v. Jauncey; [1950] 1 All E.R. 165; [1950] 1 K.B. 574.

(29) Republic of Costa Rica v. Erlanger; (1876), 3 Ch. D. 62.

(30)      The Colonial Sugar Refining  Company, Limited v. Irving; [1905]    A.C. 369.

(31)      Guaranty Trust Company of New York v. Hannay and Company; [1915] 2 K.B. 536.

(32)      Richardson v. Mellish; (1824), 130 E.R. 294.

(33) Sasty Velaider Aronegary and his wife v. Sambecutty Vaigalie and others; (1881) 6 App. Cas. 364.

(34)      H. (otherwise D.) v. H.; [1953] 2 All E.R. 1229.

(35)      Leeds and County Bank, Ltd. v. Walker; (1882-3), 11 Q.B.D. 84.

(36)      James Gardner v. Edward A. Lucas and Others; (1878) 3 App. Cas. 582.

(37)      Kimbray v. Draper; (1868), L.R. 3 Q.B. 160.

(38)      Wright v. Hale and Another; (1860), 3 L.T. 444.

(39)      Warne v. Beresford; (1837), 150 E.R. 1002.

(40)      The Ironsides; (1862), 6 L.T. 59.

(41) Hamilton Gell v. White; [1922] 2 K.B. 422.

(42) Grand Junction Waterworks Co. v. Hampton Urban District Council; [1898] 2 Ch. 331.

(43) Dyson v. Attorney-General; [1911] 1 K.B. 410.

(44) Burghes v. Attorney-General; [1911] 2 Ch. 139.

(45) Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd.; [1921] 2 A.C. 438.

(46)      Gray v. Spyer; [1922] 2 Ch. 22.

(47)      Thomas v. Attorney-General; (1936), 155 L.T. 312.

(48)      Har-Shefi v. Har-Shefi; [1953] 1 All E.R. 783.

(49)      Roesin v. Attorney-General; (1918), T.L.R. 417.

 

American case referred to:

 

(50)      Harril v. American Home Mortgage Co.; 1 Corp.Juris Sec., p. 1025.

 

South African case referred to:

 

(51) Martens v. Martens ; [1952] 3 S.A. L.R. 771.

 

Ganor for the appellants.

Weinberg, Deputy State Attorney, for the respondents.

 

SILBERG J. The subject of the appeal before us is the determinatian of the legal significance of an unusual act, namely the solemnization of the marriage of a Jew and a Jewess not in the Office of the Rabbinate, but in an advocate's office, by an advocate, after the Office of the Rabbinate had refused to solemnize it on the ground that it was contrary to Jewish law.

 

2. The particulars in the case are set out below. They present such a tangle of questions of law and fact, of law and ceremonial, of Jewish law and that of the State of Israel, that it is desirable to set them out in a detailed and systematic way:

 

            (a) The first appellant, Aharon Cohen, and the second appellant, Bella Bousslik, are Israeli Jews not figuring in the list of adult members of the Jewish Community of Palestine (Knesset Yisrael).

           

            (b) In 1949, the first appellant applied to the Offices of the Rabbinate in Tel Aviv and Ramat Gan for the solemnization of his marriage to the second appellant, who had shortly before been divorced from her husband by a bill of divorcement, in accordance with Jewish law. The appellant stated that in spite of his name Aharon Cohen1⁾, which suggested he was a descendant of Aharon the High Priest, he was not a priest and, therefore, the Biblical prohibition of the marriage of a man of priestly stock and a divorced woman (Leviticus XXI, 7) did not apply to him. The statement, however, did not satisfy the Rabbis, and they refused to grant his application.

           

            (c) In view of this refusal, the appellants proceeded to live together as man and wife in the same dwelling; they regarded themselves for all purposes as husband and wife and were reputed to be husband and wife by all their acquaintances. This state of things lasted until August-September 1952. About that time, the first appellant again applied to the Chief Rabbinate of Tel Aviv for permission to marry the second appellant, reiterating his claim that he was not of priestly descent. The learned Rabbis considered the application - this time not in their capacity as an Office of the Rabbinate, but as a Rabbinical Court - heard argument, took evidence, and ultimately rejected the application on the ground that the first appellant was at least "possibly of priestly descent" and could not, therefore, be granted permission to marry a divorcee.

           

            (d) A rumour then reached the appellants - we do not know how - that the rabbinical prohibition might be circumvented by the performance of a religious ceremony outside the Office of the Rabbinate, and they asked Mr. David Ganor, an advocate, to perform the ceremony for them. Mr. Ganor consented. He at first published a notice in two local newspapers to the effect that Mr. Aharon Cohen, "who is divorced and at liberty to marry", proposed to marry Mrs. Bella Bousslik, "who is divorced and at liberty to marry"; that the marriage would take place on December 16, 1952, "at an advocate's office in Tel Aviv"; and that "anyone being aware that either of the parties is disqualified from marrying the other may notify the advocate's secretary, Miss Haya Tomashin, to such effect."

 

            (e) When no opposition had been lodged with the aforementioned Miss Tomashin, Mr. Ganor, on December 16, 1952, prepared to perform the marriage ceremony. There appeared in his office the groom and bride, together with two witnesses specially invited for the purpose (Fisher and Hirsh), and two uninvited witnesses, namely, two police sergeants (Katz and Pachter) of the Investigation Branch of Tel Aviv District Headquarters, who had come to watch the "irregular" ceremony as guardians of the law, and were prepared to take part in it themselves as witnesses to the marriage. In the presence of all four witnesses, the first appellant took a gold ring from his pocket and gave it to the second appellant, saying as he did so: ''You are sanctified to me by this ring in accordance with the Law of Moses and Israel." Moreover - as he has explained to us, to enhance the validity of the proceedings - Mr. Ganor had the appellants and the two invited witnesses sign a special document - "special" in a twofold sense - styled by him "marriage deed (and settlement)". This deed certifies that "I, Aharon Cohen, do this day take Mrs. Bella Bousslik to wife by 'acquisition', that is to say, I sanctify her to me by a ring, etc.", and that "I, Bella Bousslik, after Aharon Cohen has taken me to wife this day ....hereby affix my signature to this deed to signify my consent to the marriage etc." The declarant, Aharon Cohen, further says in the deed: "As a settlement in accordance with age-old Jewish custom, I allocate to my wife, Bella Bousslik, an amount of IL. 5,000.-". This brief passage ostensibly justifies the description "settlement", which, as we have seen, figures (in brackets) at the top of the document. This is how the appellants' marriage ceremony was held - a marriage ceremony without a canopy, for a canopy, for some reason, was not put up either in or outside the advocate's office.

 

            (f) Some days after this ceremony the first appellant asked the Office of the Registration of Inhabitants of Tel Aviv at Hakirya to enter the change of his personal status from "single" to "married" in his identity booklet, but that office refused to do so on the ground that the marriage was not legal and not recognised by law.

           

            (g) Following this refusal, the appellants filed an application by way of motion against the Attorney-General in the District Court of Tel Aviv, asking for a judgment declaring that they were married one to the other. This application was accompanied by various sworn declarations - by the appellants (the applicants) themselves, by the invited witnesses to the marriage (Fisher and Hirsh) and by Mr. Ganor- certifying the main facts stated above. In connection with another application, for the early hearing of the case, a further sworn declaration was submitted by the first appellant (the first applicant), containing two paragraphs which give a hint, and perhaps more than just a hint, of the background of the matter. These two paragraphs read as follows :

 

            "6. Owing to the non-recognition of our marriage by the competent authorities, we are denied certain commodities, such as those due to the head of the family on a special ration card, and various income tax facilities. We are further caused unpleasantness when staying at an hotel in another town, since our identity booklets make us appear as unmarried people; this is most distressing for us.

 

            7. The non-recognition of our marriage threatens the economic security of one of us in the event of the death of the other, since only a person whose marriage is recognised shares in the inheritance of the other."

 

            (h) And now for the two other particulars which, although of a legal character, belong to this recital of facts. They are - if one may use the expression - two legal "facts", which, in the opinion of the court below determined the case against the applicants-petitioners  - the Jerusalem Ban, and the Marriage and Divorce Law.

           

(aa) The Jerusalem Ban. At the end of the winter of 1949, a national conference of Rabbis met in Jerusalem which, with the sanction of the Chief Rabbinate, considered and approved various rules of matrimonial law designed to regulate certain matters and to obviate certain difficulties in connection with matrimony and the solemnization of marriages. These rules contain the following paragraph :

 

''We prohibit every Rabbi or other person in Israel from solemnizing marriages, unless he has been authorised and appointed to perform this function by the writ and signature of the Chief Rabbis of the towns of Eretz Israel."

 

The rules conclude as follows:

 

            "These rules have been made by the Assembly of the Enlarged Council of the Chief Rabbinate of Israel. The sanction against anyone breaking these rules is the imposition of a ban to be applied - as it has always been applied - with the full severity of the rules made by the Rabbis in Israel for all communities in Israel... and they shall be observed according to the letter until the Redeemer comes to Zion. The offender against any of them shall suffer the penalties of excommunication, ban and curse."1⁾

 

            These rules thus impose a ban on anyone solemnizing a marriage without being authorised to do so by the local rabbi and this ban, as appears from an earlier passage of the rules, applies to anyone "assuming the function of a witness to such a marriage." The act under consideration is thus affected by the ban both as regards the part played by the advocate and by the invited witnesses.

           

(bb) The Marriage and Divorce Law. The application in question was filed in the court below on January 1, 1953, and judgment was given on October 4, 1953. Between these two dates an important event took place. The Knesset enacted the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, which came into force on the date of its publication in the Official Gazette, i.e. on September 4, 1953 - exactly one month before the date of the judgment. I refer to Section 1, which enacts:

 

            "1. Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts."

           

            From that date, it is quite immaterial whether or not the parties are members of the Jewish community of Eretz Israel, and it appears, at least prima facie - and this was also the opinion of the learned judge in the court below - that if the application had been filed after the coming into force of the said Law, the District Court would not have been competent to deal with the matter.

           

3. The Court below considered the application of the appellants, and rejected it after extensive discussion of the relevant Jewish law. I shall later revert to the reasons for the judgment. For the time being, it is sufficient to point out that the learned judge arrived at the opinion that of all the three ways in which a woman is 'acquired', "by money, by deed or by intercourse," (Kiddushin, I, 1) the most valid one in this case seems to have been the first, the 'acquisition' by something of value, but that method too was of doubtful validity, in view of the opinion expressed in rabbinical literature that a marriage performed in contravention of any ban (which applies also to the witnesses) is null and void, since the violation of the ban disqualifies the witnesses, and the marriage thus becomes one contracted without witnesses, which is invalid "even if both parties affirm that it has taken place" (Kiddushin 65^a; Shulhan Aruh, Even Ha-Ezer, 42, 2). This was considered to apply to the present case, too ; as a result of the Jerusalem Ban, the witnesses were disqualified; the disqualification of the witnesses entailed the nullity of the marriage - not only in form but in substance - so that it could not be recognised in a civil court either.

 

            The learned judge was not quite positive on this point. He did not overlook the fact that other authorities oppose the view just set out, whether as regards the disqualification of the witnesses or the resulting nullity of the marriage, but the result of this conflict of views is, in his opinion -

           

            "that considering the possible disqualification of the witnesses, the solemnization following the payment of something of value must be regarded as of doubtful validity and cannot be pronounced valid."

 

            The same doubt, though for other reasons, was expressed by him with regard to the validity of the solemnization by consummation. He sums up his remarks saying that since "not more has been proved than allows us to declare that the second applicant (the second appellant) is possibly married to the first applicant (the first appellant)", therefore, 'as it cannot be said with certainty that there has been no solemnization... it cannot be held, either, that the parties are married to each other."

           

            For this reason alone the learned judge was about to reject the application. But before he was able to pronounce judgment, the second legal fact mentioned came into existence, namely, the promulgation of the Rabbinical Courts (Marriage and Divorce) Law, 1953; and this was an additional, independent ground for rejecting the application. The opinion of the learned judge was that in view of the provision contained in section 1 of the Law, he no longer had power to decide upon the application, although the proceedings had begun before the passing of the Law.

 

            The learned judge thus placed his judgment on a two-fold basis.He rejected the application for lack of jurisdiction or, alternatively - in case the court of appeal should find that he had been competent to consider and determine the matter - on substantive grounds. It is against this judgment, and the two grounds upon which it is based, that the appeal before us is directed.

 

4. I shall first deal with the question of jurisdiction, the answer to which will open or close the door to the remaining questions which arise. That question falls into three parts:

 

(a)    Was the District Court competent to deal with the application when it was first filed, before the promulgation of the Marriage and Divorce Law?

 

(b)   Would the District Court have been competent to deal with the application had it been filed after the promulgation of the Marriage and Divorce Law?

 

(c)    If the answer to the first question is 'yes', and to the second 'no', how are we to decide a case where, as here, the application was filed before, but determined after, the promulgation of that Law?

 

5. I begin with the second question, declaring at once that, in my opinion, the answer to it must be a definite 'no'. Section 1 of the Marriage and Divorce Law provides that "matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical Courts." Now a declaration of the validity of a marriage is undoubtedly a "matter of marriage"; the parties in this case are Jews and nationals and residents of the State, and the first that they are not members of the Jewish Community of Eretz Israel is now irrelevant, since section 1 is principally designed to abolish the distinction between members and non-members of the Jewish community of Eretz Israel. This being so, exclusive jurisdiction over an application of this kind is today vested, by virtue of that Law, in the Rabbinical Courts, and the District Courts will not in future have power to entertain such an application.

 

            Our attention has been drawn to the judgment given by the Supreme Court in the case of Waldar (Azgour) v. Azgour (1), which seemingly contradicts the opinion I have just expressed; but that judgment is irrelevant here and has no bearing at all, even by way of analogy, on the question before us. It merely establishes, in reliance on the judgment of the Privy Council in Samson v. Samson (23), that the declaration of the validity of a divorce already effected is not a judgment of divorce (which cannot be granted to foreign nationals in view of Article 64(i) of the Palestine Order in Council 1⁾, but it does not say anywhere that such a declaration is not even a "matter of divorce" (within the meaning of Article 51 of the Order in Council), and there can be no doubt that the Supreme Court regarded that declaration as such a matter. Logic demands that we should hold that a declaration of the validity of a marriage must be regarded as a "matter of marriage". Is it possible that such a declaration, which ordinarily serves as the basis for the very existence of the matrimonial relationship of the couple, should not be regarded as a "matter of marriage" within the meaning of section 1 of the said Law or of Article 53(i)2⁾ of the Order in Council? It might well be said that both legislators, the Palestinian and the Israel, in referring to a "matter of marriage", meant first and foremost the making of such declarations. The least that can be said is that they certainly had no intention of excluding these declarations from the scope of that term. We can thus say that the declaration requested by the appellants is a "matter of marriage" within the meaning of section 1 of the Marriage and Divorce Law and that, if the application had been filed after the promulgation of the said Law, the District Court would undoubtedly not have been competent to deal with it.

 

6. It seems to me, on the other hand, that the answer to the first question should be in the affirmative, i.e. that during the period between January 1, 1953 (the date of the filing of the application) and September 4, 1953 (the date of the coming into force of the Marriage and Divorce Law) the District Court was competent to consider and determine the application of the appellants. The sole reason for this is that the parties were not members of the Jewish Community of Eretz Israel and that, therefore, the provisions of Article 53(i) of the Palestine Order in Council did not apply to them. It is true that I doubted, even before the promulgation of the Marriage and Divorce Law, the validity of the distinction between a member and a nonmember of the Jewish community of Eretz Israel, regarding the distinction as having lost its content immediately with the establishment of the State. However, it was then an accepted legal principle in Israel, and was adopted by this Court, although with various reservations and qualifications, even in cases which occurred after the establishment of the State (see Garler v. Garler (16), Amirsaur v. Chief Execution Officer (17), and others). We are thus not entitled to depart from this principle, and have to decide that before the promulgation of the Marriage and Divorce Law, i.e., until September 4, 1953, the District Court was certainly competent to consider and determine the application.

 

7. There thus arises the third of the above questions, namely, whether or not, in view of the fact that the application was filed before the promulgation of the Marriage and Divorce Law, the District Court was competent to decide upon it even after the promulgation of that Law, or, in more technical language, whether or not the provision in section 1 of the Marriage and Divorce Law is a retroactive provision which deprives the court of jurisdiction, even in actions begun before the promulgation of the Law.

 

8. Ostensibly, this problem may be solved by reference to certain basic rules governing the interpretation of statutes, that is, to the well-known distinction between substantive and procedural Laws. It is generally known that a new substantive Law, which changes the rights and obligations of a person, is entirely prospective, that is to say, unless the Law itself makes explicit or implicit provision to the contrary, it is presumed to operate prospectively and not retrospectively, and not to affect the rights that were vested in the parties at the time the proceedings began (for an interpretation of the term "vested right" or "right accrued", compare the judgment of the Privy Council in Abbot v. The Minister for Lands (24)). As regards a procedural Law, however, which changes the modes of procedure of the court, it is presumed that it operates retrospectively, that is to say, that the court is obliged to follow it even with regard to proceedings begun before its promulgation. This is an accepted principle which has found its expression in very many English judgments. I cite a few instances.

 

            "Where the law is altered, by statute, pending an action, the law as it existed when the action was commenced must decide the rights of the parties, unless the Legislature, by the language used, show a clear intention to vary the mutual relation of such parties." (Hitchcock v. Way (25).)

           

            "Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." (Per Wright J., in re Athlumney, Ex parte Wilson (26).)

           

            "...it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them... there is one exception to that rule, namely, that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." (Per Jessel M.R. in re Joseph Suche and Company Ltd. (27), vide Hutchinson v. launcey (28) at p. 168.)

           

            The gist of the idea of the retroactivity of new procedural provisions of law has been expressed by Lord Justice Mellish in one short, simple and clear sentence:

           

            "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done." (per Mellish L.J. in Republic of Costa Rica v. Erlanger (29).)

           

            This and only this is the reason why a change in procedural law differs from a change in substantive law with regard to the question of retroactivity. The underlying consideration is that procedure is not a personal matter of the litigant; it is, so to speak, a preserve of the court, and therefore, if it is changed by the legislator, the change will operate also with regard to those parties who began to litigate before the change occurred.

           

9. But what I have said does not by itself provide a solution to our problem - therefore I have used the expression "ostensibly". The next and more difficult question is: what is the nature of the innovation introduced by the Marriage and Divorce Law, and must not the transfer of jurisdiction from the civil court to the religious court be here regarded as a fundamental change in the substantive law of the State? Not everything relating to court procedure is a procedural matter within the meaning of the above distinction. For instance, the right of appeal, a matter with which the court is unconcerned, is regarded, for the purposes of the principle in question, as a substantive right, and a new Law withdrawing it will not as a rule affect the position of a party whose case in the lower court began before the promulgation of that Law (see the judgment of this court in Ogapel and Others v. The Attorney-General (18), and Epstein v. The Attorney-General (19), and the judgment of the Privy Council in Colonial Sugar Refining Company v. Irving (30)).

 

10. But before embarking upon a discussion of this question let us see whether a solution to it cannot be found in the statute law of this country. I am thinking of section 17 of the Interpretation Ordinance,1945. Subsection (2) of that section provides :

 

"(2) Where any enactment repeals any Law, such repeal shall not, unless a contrary intention appears,-...

 

(c) affect any right, privilege, obligation or liability, acquired, accrued, or incurred, under any law so repealed ; or

 

(d) affect any penalty, forfeiture, or punishment, incurred in respect of any offence committed against any law so repealed ; or

 

(e) affect any investigation, legal proceeding, or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, as aforesaid, and any such investigation, legal proceeding, or remedy, may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing enactment had not been passed, made or issued."

 

Thus the text of the Law, as far as it is relevant to our case.

 

11. If the above section 17 (2) (e) did not use the words "may be instituted", there would be no doubt whatever in my mind that the provision of subsection (e) definitely solves our problem. The proceeding which began in the District Court under the old Law (the Order in Council) which empowered that Court to deal with matters of marriage of Jews not being members of the Jewish Community of Eretz Israel, is certainly a "legal proceeding", and consequently may "be continued" by virtue of the provision of subsection (e), until the passing of judgment, as if the "repealing enactment", i.e. section 1 of the Marriage and Divorce Law, "had not been passed, made or issued". But how are we to interpret the words "may be instituted" ? It is certain, as I have mentioned in para. 5 above, that today, after the promulgation of the Marriage and Divorce Law, the District Court is not competent to entertain proceedings in matters like the one in question. Now, if that is so, do not those words indicate that the reference is to a legal proceeding which has not been changed by the new Law, and which concerns a substantive right which has been so changed, and not to a legal proceeding which has itself been changed by the new Law ? For the legislator could not have permitted the institution of a legal proceeding under the old law unless he had in mind a change in the substantive, not the procedural, law.

 

            I think that this line of reasoning is not convincing. The simple solution is that the legislator had in mind two things: a change in the substantive law and a change in the procedural law. In the case of the former, a proceeding of the kind referred to in the Ordinance may be instituted and continued; in the latter case such a proceeding may of course be only continued, where it was begun before the promulgation of the new Law. The conclusion is that where, as in the present case, the new Law withdraws jurisdiction from one court and transfer it to another court or tribunal, this transfer of jurisdiction does not affect a proceeding begun previously, and the court may continue it until it has given judgment.

           

            Explicit proof of this is to be found in two judgments given by the Supreme Court in the Mandatory period, and to which the Attorney -General, most fairly, has drawn our attention, namely, Nassar v. Attorney-Jeneral (2), and Iswai v. Attorney-General (3). The question in those cases was whether, in view of a new Law which withdrew the power to deal with a certain offence from the District Court and vested it in the Military Court, the District Court was still permitted to try the accused, whose case had been referred to it prior to the promulgation of that Law. The court decided that it was. It reached this decision on the strength of section 5(1) of the Interpretation Ordinance, 1929 (Laws of Palestine, cap. 69), which agrees almost word for word with the above-quoted s. 17(2) of the Interpretation Ordinance, 1945. Some support for this view may, on close scrutiny, be found also in the dicta of Justice Dunkelblum in Kwatinski v. District Commissioner (2).

           

12. But even one who does not agree with the interpretation given above to section 17(2) (e) or consider himself bound by the two judgments rendered during the Mandatory period will in the present case arrive at the same conclusion, for the reason referred to in para. 9 above. I am of the opinion that the transfer of jurisdiction from a civil court to a religious court, in the course of the proceedings, would in effect be a substantive change in the legal position of the litigant. Let us not be unduly influenced by terms and concepts of alien origin, but try to see things in the light of our own realities. The additional authority granted to the Rabbinical Courts with the promulgation of the Marriage and Divorce Law was not authority for authority's sake, but authority for the purpose of a change in content in order to ensure the correct application of a particular law, namely, the Jewish law. They said "the vessel" and meant its contents1⁾ It was contended that it was immaterial who dealt with matters of marriage of the citizen so long as the law according to which they were dealt with was the Jewish religious law. But this contention was not accepted by those who fought for the adoption of the new Law, and from their point of view they were quite right. Jewish law as applied by a civil court is different from Jewish law as applied by a religious court. There is a difference in approach, in method, and sometimes also in the actual content of the judgment. For instance : in a civil court, everyone, even the party himself, may be a witness, while not everyone is qualified to give evidence in a religious court (see. e.g., the many categories of persons disqualified as witnesses enumerated in Shulhan Aruh. Hoshen Mishpat, 33 to 37). In Jewish law, "two are equivalent to a hundred", that is to say, if a hundred witnesses state that the husband is dead, and two state that he is not, the wife may not remarry, because she is possibly still bound to a living husband ; and if she has already remarried, she must be released from the new husband's control (Shulhan Aruh, Even Ha-Ezer, 17, 46; Ba'er Heitev, ibid. 127); the religious court may under no circumstances declare the absolute validity of the new marriage. But if (before the promulgation of the new Law) a civil court had had to deal with such a question, it would certainly have preferred the testimony of a hundred reliable witnesses and decided that the new marriage was valid.

 

            Yet, it is not only because of the different rules of evidence, but also because of the different approach to the substance of the case that the judgment of the civil court will not always be the same as that of the religious court, though both purport to deal with the matter according to Jewish law. One of the reasons for this is a different attitude towards the accepted principles of private international law, which require the recognition of the validity of legal acts done in the past, outside the territory of the State and under a foreign law, such as the national law of the parties or the law of their place of residence, and similar matters to be taken into consideration. The religious court regards itself as completely free from these "cramping" rules ; it extends the application of the religious law - a priori and unrestrictedly - to acts performed in the past by foreign nationals outside the boundaries of the State, and it is permitted so to do (Neussihin v. Neussihin (4)) ; the civil court, on the other hand will, to some extent at least, take those rules into account, even if it deals with the matter, in principle, according to Jewish law.

 

            In short: the differences between the jurisdiction of the civil court and the jurisdiction of the religious court are so profound and so fundamental, that in my opinion it is quite impossible to say that the transfer of authority by the new Law from the civil court to the religious court is merely a procedural change. Whatever its "official" description in customary terminology, this change, as we have seen, is in practice likely to affect decisively the substantive rights of the parties, and it should therefore be treated as a change in the substantive law, that is to say: the law should not be read retroactively, and it should be declared that the transfer of jurisdiction does not deprive the civil court of the power to consider and determine a matter with which it had begun to deal before the promulgation of the new Law.

 

13. The conclusion at which I have arrived is, therefore, that as the application was filed in the court below before the promulgation of the Marriage and Divorce Law, that court was competent to consider and determine it even after the promulgation of that Law.

 

14. It is fitting at this point to deal with a contention brought forward by Mr. Weinberg, the representative of the Attorney-General. That contention is that even if the Court was competent to deal with the application, and even assuming that from the point of view of the substantive law the parties are married to each other, the court should have dismissed the application, because the grant of a declaratory judgment in the circumstances is contrary to public policy. There are in this country - Mr. Weinberg submits - various provisions of law aimed at regulating matters of registration of marriages in a proper and orderly fashion through the competent authorities. He had in mind the Marriage and Divorce (Registration) Ordinance, 1919. That Ordinance says that the registering authority, in the case of a Jewish marriage, is the Rabbi. This means that the legislator particularly intended that a Rabbi, and not a private person, should perform the marriage ceremony and that, in the language of our sources, "anyone who does not know the nature of divorce and betrothal shall not deal with them" (Kiddushin 6a). Public policy, too, in such serious matters, in which the community is also interested, demands that not everyone who claims authority should be permitted to exercise it. The action of the appellants thus constituted both a circumvention of the law and an infringement of public policy, and they should therefore not be granted the declaration for which they applied. Accordingy, the representative of the respondent concluded, the learned judge was right - though not for the reason given by him - in rejecting the application of the appellants.

 

            I must confess that this contention appealed to me, and that I was almost on the point of accepting it. Upon reflection, however, I realized that it was not well-founded. It is true that such acts, in themselves, infringe upon public policy, and that there can be no greater "mischief" than the performance of such "private" marriage ceremonies. It is moreover correct that with regard to the grant of declaratory judgments the court has a certain discretion and will refuse relief prayed for where it would not be equitable to grant it (Guaranty Trust Co. v. Hanney & Co. (31)). I am prepared to add: or where the grant of the application would be contrary to public policy. But I am still not prepared to say that in the present case, after the act in question has been carried through, the act being legal according to religious law and therefore also according to civil law, it would be contrary to public policy to declare explicitly the validity of that act. All that the parties requested the court to do was to tell them what, according to the civil law, was the legal status of their marriage; and if the civil law endorses in this matter the religious law and recognizes the validity of the marriage, how can it be said that the declaration of this fact is contrary to public policy ? In any case, it is not particularly healthy and safe to rely on considerations of public policy in withholding the grant of a declaratory judgment. An English judge said 130 years ago that "public policy" was "a very unruly horse, and when once you get astride of it you never know where it will carry you." (Richardson v. Mellish (32)).

           

 

            I am of opinion that in this respect, too, there was nothing to prevent the court below from granting the appellants the relief they prayed for, provided only that their arguments were well-founded.

           

15. This brings us to the last, and most difficult, part of this appeal, namely, the question whether the learned judge was right in deciding that the validity of the marriage of the appellants could not be recognised according to Jewish law. A particular difficulty arises from the fact that the learned judge, as will be remembered, did not definitely rule that the marriage was null, but only that it was of doubtful validity, so that, in effect, he left the question open and refrained from deciding the legal problem confronting him.

 

            With all due respect to the learned judge, it seems to me that this is not the correct approach. "Teach your tongue to say: I know not" (Berahot 4^a) is not an injunction addressed to a judge, who should, rather, as a general rule, arrive at a definite opinion on every legal question arising before him. Here the judge was faced - as he saw the matter - with a disagreement between the authorities as to the disqualification of witnesses by reason of a ban; and despite his understandable reluctance to become involved in the debate between these great authorities, it was his duty to reach a decision in the matter for the purposes of the concrete case before him. Proof of this duty - if such proof be required - may be found in the following pronouncement of the Supreme Court in Palestine Mercantile Bank Ltd. v. Fryman (5) :

 

"If the Ottoman Law is not clear it is the duty of the judges to expound it, however difficult it may be."

           

            From a purely legal point of view, as distinguished from the religious point of view, which deals with "prohibitions" and which always tends, in cases of doubt, to forbid, there is in Jewish law no special marriage status because of the doubt that perhaps a marriage has been contracted (see Kiddushin 5^b : "Where there is a doubt, it is only on prescription of the Sages that we suspect a marriage", and Rabbi Nissim, in his commentary on Alfasi, Responsa of the Maharik). The doubt which can arise is what is the exact legal status of such people, and where the doubt arises out of judicial conflicts between great authorities, the judge is bound, in this as in any other question of law, to arrive at a decision which is both certain and clear, however humble he may feel himself to be.

           

            We therefore have to supply what, to our regret, the learned judge has omitted and to try to take a stand, one way or the other, on the questions he left open.

           

16. A woman, in Jewish law, is "acquired" in three ways : by money, by deed, or by intercourse; and the contention of counsel for the appellants is that his clients have adopted all three methods: solemnization by something of value - by the giving of the ring ; solemnization by the "marriage deed" - by the delivery of the so-called "marriage deed" ; and solemnization by intercourse - by living together as husband and wife. As to the third method, he invokes of course the legal presumption that no man will indulge in sexual intercourse for the purpose of sin (Yevamot 107^a, Gittin 81^b, Ketubot 73^a), for were it not for this presumption, there would be no evidence of intention, which as is well known, is required also for a marriage by intercourse (Shulhan Aruh, Even Ha-Ezer, 26, 1). In addition to that, Mr. Ganor invokes a presumption of another kind, the presumption of "repute" - that is, where a man and a woman were reputed to be husband and wife for at least 30 days, an adulterer with the wife will be able to be punished (Yerushalmi Kiddushin IV, 8), and Mr. Ganor argues that whereas the appellants have been reputed for a long time as married to each other among all their acquaintances, this "presumption by itself creates a sort of matrimonial bond between them." These are, very succintly, the contentions of counsel for the appellants.

 

17. For brevity's sake, I will begin with the last three contentions of counsel for the appellants and say at once that in my opinion they are completely unfounded, and provide no basis for assuming - or even for having any doubt in the matter - that the marriage of the appellants is valid.

 

            (a) Solemnization by Marriage Deed. It is obvious even to a person with only a rudimentary knowledge of rabbinical law that the "marriage deed" (and settlement) drawn up by Mr. Ganor can on no account, either as to its form or as to its contents, be regarded as a real marriage deed. A marriage deed in Jewish law is a constitutive document, which itself (by its delivery) creates the legal bond between the partners, and not a declaratory document, confirming something that has already taken place.

           

            "What is the procedure for a marriage deed? The man writes on a piece of paper or a clay tablet... 'thou art sanctified unto me', and gives it to the woman in the presence of witnesses", (Shulhan Aruh, Even Ha-Ezer, 32, 1; the source is Kiddushin 9^a).

           

            The object of the marriage deed is constitutive and not probative - the creation of the matrimonial relationship (upon delivery of the deed) and not the evidencing of it (although some say that under certain circumstances a marriage deed may serve also as evidence: see the Responsa of R. Yosef Kolon, Shoresh 74, and compare the Responsa of R. Shmuel of Modena, (known and hereinafter referred to as "Rashdam") Even Ha-Ezer, 2 and ibid., 21, the latter quoted in paragraph 20 below). But what did Mr. Ganor instruct the appellants to do? He had them sign a document in which they certified to each other that they had already bound themselves by way of solemnization by something of value, i.e. through the delivery of the ring. This is what the first appellant declared:

           

"I, Aharon Cohen, do this day take Mrs. Bella Bousslik to wife by 'acquisition', that is to say, I betroth her unto me by a ring..."

 

            And the second appellant stated:

 

            "I, the undersigned, Bella Bousslik, after Aharon Cohen has taken me to wife this day... hereby affix my signature to this deed.. ."

           

            It is obvious that a marriage was not here performed by means of the deed, but that the deed attests that a marriage has been performed independently of it; and such a document, whatever its name, can on no account serve as a marriage deed, which in Jewish law effects the solemnization.

           

            (b) Solemnization by intercourse. This, too, has not taken place in the present case since there is no evidence that the relations between the parties were maintained "for the purpose of solemnization". The presumption that "a man does not indulge in intercourse for the purpose of sin" does not in my opinion apply here, for the following reason. This presumption is, in the final analysis, the legal conclusion from the well-known principle : "a man does not abstain from doing what is allowed to him and prefer doing what is forbidden to him", which means: where two ways are open to a man, one legitimate and the other illegitimate, normally a man does not leave the legitimate and choose the illegitimate way. Therefore when a man has sexual intercourse with a woman, we prefer to say that he did so for marriage, rather than to say that he did so for sin, for it is forbidden to have intercourse with an unmarried woman. Thus it is laid down (Shulhan Aruh, Even Ha-Ezer, 149, 1):

           

            "The presumption is that a man does not indulge in sexual intercourse for the purpose of sin, because he can indulge in sexual intercourse in obedience to the law."

           

            The emphasis is thus placed on the religious aspect: on the willingness of a person to prefer a lawful act to a transgression; therefore the presumption in question is inapplicable to the present case. The appellants had applied to the Rabbinate Offices for the solemnization of their marriage and had been turned away; they had applied to the Chief Rabbinate Tel Aviv, for a licence with equal ill-success. The reason given was that the appellant, Aharon Cohen, was at least possibly of priestly stock and could not therefore marry a divorced woman. This ruling of a high religious authority, expert in the matter, cannot be questioned by us as far as the religious aspect is concerned, so that for the purposes of this case, we have to assume that the appellant was indeed prohibited from having the solemnization performed. Now if religious considerations should have prevented the man from marrying the divorcee, and if by doing so he violated the religious code, how can he, in respect of that very act, invoke a presumption which, as we have seen, is based entirely upon the idea that a person will not wish to commit a sin?

 

            Here it may be objected that we cannot definitely say that the first appellant has broken a religious rule. Even according to the decision of the Rabbis, he is only possibly of priestly stock, that is to say, he is either a priest or an ordinary Israelite; so he may in reality be an ordinary Israelite, permitted to marry a divorcee. Can we say that the presumption does not apply on the strength of a mere doubt?

           

            My answer to this is that a presumption to which a doubt attaches ceases to be a valid presumption and cannot establish a valid marriage even because of doubt. For "a slight doubt cancels out much that is certain", and anyway there was no evidence here of any intention to solemnize a marriage.

           

            I shall clarify the matter. The presumption that a man does not indulge in sexual intercourse for the purpose of sin is, on close scrutiny, some substitute for direct evidence on the issue of the intention to solemnize a marriage. It is quasi-evidence similar to judicial notice, which is founded on contentions of logic. We ourselves are witnesses, everyone of us, that that man surely intended to live in marriage, for that is the "presumption", that is to say, it is something we know from our observation of the nature of man, that he does not reject the legitimate and prefer the illegitimate, and therefore we take it for granted that he intended to be married. In the case before us, as I have already said, we have to proceed on the assumption that the first appellant is at least possibly of priestly stock; that is to say, we have to assume that possibly this man is indeed a 'priest', and knows that he is, and if in spite of this fact he is prepared to marry a divorcee, it shows that he is not strict in the observance of religious prohibitions. The consequence of this doubt is that we, the "witnesses", are not certain that the appellant intended that the sanctification should be solemnized by the act of intercourse itself, and we are unable to attest this; it follows that the solemnization by intercourse is, at most, a solemnization without witnesses, which does not create a marriage even where marriage is intended. An explicit rule provides that even when a man had intercourse with a woman not for the purpose of sin but for the purpose of matrimony, but the intercourse took place in private, then the woman is not regarded as his wife (Tur Shulhan Aruh, Even Ha-Ezer, Hilchot Kiddushin, 26, 1; Shulhan Aruh, Even Ha-Ezer, ibid.), meaning she is not regarded as his wife for any purpose.

 

            In the present case, the position is consequently this. Although the fact of the appellants' living together proves abundantly - just as the evidence of eyewitnesses would prove, in the above sense - the existence of sexual relations between them, it gives no indication at all of the intention involved in having such relations, i.e. of whether or not the parties had such relations for the purpose of matrimony. The solution to this question must be sought in the presumption that a man does not indulge in sexual intercourse for the purpose of sin; but this presumption, as I have already said, does not apply here because of the doubts involved; and in the absence of this presumption, there is no evidence of intention which is one of the material elements for the validity of a marriage.

           

            It follows from the above that the said presumption cannot be relied on in this case.

           

            (c) Presumption of reputation. This presumption does not help the appellants either. The problem - if problem there be - may here be solved in a few words. The presumption is that if a couple come to another town, introduce themselves there to everybody as husband and wife, and are reputed to be such for at least thirty days, it is assumed as a fact that they have contracted a marriage in the manner prescribed by the Jewish religion. This presumption is not peculiar to Jewish law but occurs also, in one form or another, in English common law (see the judgment of Aronegary v. Vaigalie (33)). But what is the nature of this presumption? Its nature is, both in Jewish and in English law, that it does not create, but proves the matrimonial relationship. Its effect is the exact opposite of that of the marriage deed, as explained above. This being so, it is quite useless in this case, for we need no proof of facts, and a relationship cannot be created by it. We know all the facts, all the processes of solemnization gone through by the appellants ; the question is only ; what is the value of these processes, and how can they be supported by that presumption? The latter, as stated, evidences facts, but is unable to create facts, to transform an unmarried woman into a married one.

 

18. To sum up: The appellants can rely neither on solemnization by marriage deed, nor on solemnization by consummation, nor on a presumption arising from their being reputed to be husband and wife. From these three points of view they certainly cannot be regarded as married.

 

19. There remains the last question: is there no basis here for assuming solemnization by something of value? Should the appellants not be regarded as husband and wife because of the ring which the first appellant gave to the second appellant at Mr. Ganor's office?

 

            The learned judge, as will be remembered, rejected this contention, but not decisively; he regarded the ceremony in question as of doubtful validity. The reason was that according to the Responsa of the Rashdam, Even Ha-Ezer, 21 (quoted by the learned judge from Freimann's well-known "Seder Kiddushin Ve-Nissu'een", p. 172), an infringement of the Salonica Ban on sanctifying a woman "otherwise than in the presence of ten witnesses" disqualifies the witnesses, and disqualification of the witnesses makes the marriage null, as does a sanctification without any witnesses; the witnesses in the present case seemed further disqualified, and the ceremony invalid, as a result of the Jerusalem Ban quoted above. Although many disagreed with the Rashdam the matter still seems to be in doubt, and it therefore seemed impossible to declare the marriage valid, as requested by the appellants.

           

            Mr. Ganor relied on a judgment of the Rabbinical Court of Appeal in Israel, in Case No. 1/60/706 (22), where the court ruled that a "secret marriage" performed between a man of priestly stock and a divorced woman, in the presence not of ten, but of only two witnesses, without a canopy, without benedictions and without a rabbi, was valid "and made her the man's wife for his lifetime" (ibid.p. 135). The learned judge did not consider this reference and made no comment upon it. The reason for this is, I suppose, that he saw an important difference between the two cases in the fact that the earlier one occurred some twenty years before, and the present one, as will be remembered, after the imposition of the Jerusalem Ban. In actual fact, however, this distinction is of no importance, because although the Jerusalem Ban was not in existence at the time of the earlier case, there did exist - as a perusal of the earlier judgment will show - other rules that were violated, but this did not induce the learned Rabbis to disqualify the witnesses and invalidate the marriage.

 

            On careful examination of the dicta of the learned judge, and the sources on which they are based, we find that the invalidation of a marriage because of witnesses being disqualified through the infringement of the Ban receives support - ostensibly - only in a responsum of the Rashdam, Even Ha-Ezer, 21, and in a passage of R. Yosef Mitrani's Responsa, Part One, 138 (Fourth Impression, 5528, fol. 99B) which relies on the aforementioned opinion of the Rashdam. The other references given in the judgment of the learned judge are the following (in the order of their occurence):

           

1) Responsa of Maharchash, Even Ha-Ezer, Article 42;

2) Responsa "Shoel U-Meshiv", 3rd Ed., part One, Article 239;

3) Responsa "Be'or Moshe", Kuntras Kevod Hachamim, Article 9;

4) Yeshuot Yaakov to Even Ha-Ezer, Article 28;

5) Responsa "Minhat Eleazer", Part Three, Article 39;

6) Response "Divrei Malkiel", Part Four, Article 119.

 

            The first, fifth and sixth of the above authorities come to the conclusion that a marriage should not be invalidated for the reason in question; the second and third do not touch at all upon the question of the disqualification of the witnesses, and apparently base the invalidation of the marriage on another reason; the fourth gives no decision one way or the other, either on the question of disqualification or on the question of invalidation (compare Freimann, op. cit., pp. 320-322). It should be pointed out here that the author of "Shoel U-Meshiv" who was quoted by the learned judge as aforesaid, in another responsum deals expressly with the question of the disqualification of the witnesses by reason of a violation of the Ban, and reaches the definite conclusion that a marriage should not be invalidated on account of such a disqualification (Response "Shoel U-Meshiv", ibid. Part Two, Article 157). It follows that we have to deal here solely with the significance of the rule laid down by the Rashdam in his above-mentioned responsum.

           

20. Upon perusal of the text of the Rashdam's responsum, it seems to me, with all due respect to the learned judge, that the Rashdam's decision, too, should not have led him to dismiss the application of the appellants.

 

            There are many reasons for this.

           

            a) I am of the opinion that the Rashdam - one of the principal originators of the Salonica Ban - did not himself intend the extreme conclusion drawn from his responsum by the learned judge and, as far as I know, such an intention was not attributed to him in the controversy which arose in his own times over the question of the disqualification of the witnesses. Let us now acquaint ourselves with the Rashdam's responsum and examine the case decided by him.

           

   A young man gave out that he had sanctified, through solemnization by money, his brother's daughter, a girl of twelve or thirteen, and produced in evidence a deed certifying the act of solemnization. The deed was signed by two witnesses, "and the deed was confirmed - that is to say, the signature of the witnesses were authenticated - by three laymen" (i.e. three persons who were not expert religious judges or experts at all). Two or three days later, the matter came before the community and the witnesses began to back out of the awkward affair :

           

            "One of them said that the alleged incident had never taken place, the other said that it was true that he (the young man) had given her (the girl) such and such a sum, but that he had not told her at all (that he was sanctifying her thereby); he had only said to the witnesses : 'be my witnesses' ; and he (the witness) said that he had not heard it".

           

            There was thus ground for the assumption that the whole matter was a fabrication. But what was to be done when according to law a witness could not go back on his original testimony (Ketubott 18^b and elsewhere)? The only question to be considered was, therefore, what value attached to that deed, and whether it could serve as legal evidence of the act of solemnization. The Rashdam (who lived in Salonica -" the events took place in the 16th Century) was requested to make a thorough investigation. He studied the case in all its aspects, and ruled that the solemnization in question was undoubtedly null, and that the girl was still unmarried. What led him to this decision? We shall do well to quote his own fine words, which reflect  - both directly and between the lines - the warm heart and the keen brain of a great humanitarian (I am giving only the main passages):

 

"Responsum. In my humble opinion they are not to be regarded as husband and wife, and I will set out my reasons. First of all, it is well known within this city (Salonica), that both saintly men who have died in the meantime and men who are still alive among us, have agreed and pronounced, and have imposed a severe and absolute Ban, at a great assembly held on the Sabbath of Chanukkah in the Talmud Torah Society, that no woman shall be sanctified unless in the presence of 10 witnesses, all of or above the age of 18 years, and witnesses testifying to sanctifications otherwise than aforesaid, should be banned, and all this is very well known within this city."

 

            And after raising several doubts on the position of the law which might tend to tip the scales to a more vigorous conclusion, he continues as follows:

           

            "I do not disregard these stricter opinions, but nevertheless I have not hesitated to search for ways and means to find in favour of this girl. And this is what every humane man should do, so that fraud should not be rewarded, and criminals not be given the benefit of their evil deeds when they take advantage of young girls deceitfully and wrongfully, to bind them unto them as if they had captured them by sword."

           

            "After God has taught us all this, there can to my mind be no doubt that this marriage cannot at all be regarded as sanctified. If we were to be strict because of the deed, the Rashba has already written that a deed of sanctification in itself is no evidence : and it is clear that such a deed does not prove anything. Thus there is no doubt that as far as the deed is concerned, the marriage need not be recognised, and if we were to be strict because of the testimony of the witnesses who, when called upon to confirm their signatures before the three, orally testified as to their witnessing the marriage, there is surely in this also nothing whatever, for several reasons:

           

(a) most of the authorities have laid this down that testimony which has been taken in the absence of a party is no evidence;

 

(b) those witnesses have transgressed a ban, and thereby disqualified themselves from testifying."

 

            It is obvious that the Rashdam did not invalidate the solemnization on the ground that the witnesses had already been disqualified while watching the proceedings, so that this was a "marriage" without witnesses; rather, he invalidated the evidence given subsequently by the disqualified witnesses, and did not admit it as valid proof of the facts (which, as we have seen, were very doubtful). In other words : he did not invalidate the actual, physical "witnessing", but the giving of evidence, the statement of the witnesses (before the three "laymen") after the event. If the Rashdam had been of the opinion - as the learned judge assumes - that the witnesses were already disqualified at the time of the solemnization, why did he choose a roundabout way, rather than say, briefly and simply, that the marriage of the child was null and void even if the facts were as stated in the deed ?

           

            b) The second case in which the Rashdam deals with the question of the disqualification of witnesses on account of the Ban (Responsa of the Rashdam, Even Ha-Ezer, 27) - and which was the subject of a sharp controversy between him and his chief opponent, R. Izhak Adarbi (Responsa "Divrei Rivote", 225 and 226) - likewise exclusively concerns the invalidation of testimony taken after the solemnization. It involves two rival bridegrooms, each claiming to have sanctified the woman in question, and each producing evidence to this effect. Again we can do no better than read the actual text of the responsum which contains most interesting folklore material on the life of the Jewish community and the jealousies between the different congregations within the communities in the Balkan countries at the end of the 16th Century :

           

"The youth Yosef son of Tishtiel had sanctified Gamila daughter of R. Izhak Herbon. The youth had lived in the house of his father-in-law for a long time ; he ate, drank and plied his trade there. Eventually, the girl's father conceived some grudge against him and threw him out of the house, and he went far away. The girl remained as he left her for nearly a year and a half. Then her father wished to arrange a marriage between her and another youth, and she, for fear of her father, revealed nothing to him and kept silent. She never gave the other youth a friendly look... Then the (other) youth gave out that he had betrothed the said girl Gamila, and the Rabbi of the congregation of the other youth was willing to accept the testimony of the witnesses (to the betrothal of the second youth)...

 

            In the meantime, the first bridegroom was in Constantinople when he sent a deed signed by two witnesses attesting that he had betrothed his aforesaid bride. Then the court of the congregation of the girl appointed a bench of three from among the learned members of the Yeshiva, 1⁾ and they sent for the girl..... and they sent for the witnesses. One of them was found in the city; he appeared, attested his signature, and attested orally everything stated in the deed. The second (witness) was not found in the city, but two witnesses appeared and attested his signature and the deed was confirmed.

           

            Then one of the judges went to talk to the girl, and exhorted her to tell the truth. She said that it was true that she had become sanctified to the first youth, in the presence of the witnesses to the deed, knowingly and willingly without the knowledge of her father and mother. The judge then asked her why she had said nothing when she saw that her father had negotiated her marriage to another man. She replied that she had been afraid of her father and had thought that the truth would come out in time ; she substantiated this latter statement by pointing out that all the neighbours knew from personal observation that she had never given the other youth a friendly look...

           

            The next day, this Yosef (the first bridegroom) and the father of the girl appeared before the court of the congregation of the girl. The second bridegroom and his father also appeared. The court asked him to produce his evidence, and he impudently declared that he would not bring his witnesses before them, but only before his own Rabbi. They told him to bring his witnesses anyway, and if his Rabbi wished, he could come too.

           

            On a Wednesday morning, while we were studying at the Yeshiva, members of the congregation of the second bridegroom's Rabbi appeared to produce the record of the evidence which they had taken ; and we were verily furious at so much impertinence, and seeing that all their goings on were just hocus-pocus, we did not trouble to investigate anything.

           

            The eminent Rabbi Yosef Bibas then ordered the father of the girl to have his daughter brought under the wedding-canopy with the first bridegroom, which he did. There the matter remained for nearly a fortnight. The bride groom sanctified his wife in public under the wedding -canopy, and on the Sabbath he gave a great feast. Nobody said anything until, a fortnight later, a different mood came over them - the work of the devil......"

 

            There ensued a quarrel between the two Rabbis - the one of the congregation of the first bridegroom and the one of the congregation of the second bridegroom. Each of the rabbis pleaded for "his" bridegroom and invoked his decision. The matter was brought before the Rashdam, who wrote as follows :

           

"..... God knows and is witness how reluctant I am to assume authority in matters like these, but since the event has already taken place (the reference to the wedding ceremony), I am compelled to rule, and have no hesitation, that this woman is his absolutely lawful wife married to her husband Yosef (the first bridegroom)."

 

            The Rashdam then embarks on an analysis of the law and continues as follows : -

           

            "In the present case I do not say only that there is some slight suspicion of marriage, but the matters appear to me to be as clear as the sun, for several reasons :

 

(a) There are several witnesses who testified that the girl never showed the second man any friendliness, and if that is so, how can it be assumed that she would have accepted him in marriage without the concurrence of her parents ?

 

         (b) At the outset, when the suspicion arose that false witnesses were being sought, we asked the Rabbi that he should now take the evidence of the second man and warn him to bring his witnesses before us - and we did this not only once, but twice - without avail ; the whole country knows the Ban which was pronounced about a year ago in the Talmud Torah Society, that no man may sanctify a woman where there are only two witnesses present, and that all witnesses must be of or above the age of 18 years.

 

         All these matters go to prove clearly that everything was made up and fabricated, and the witnnesses were just afraid to appear before us."

           

            We see here, too, that the result of the disqualification of the witnesses by reason of the Ban was, not that the sanctification was void ab initio, but that the testimony taken on it subsequently - in the case before the Rabbi of the "opposing congregation" - could not be relied upon. The Rashdam, as we have seen at the end of his opinion, used this argument as additional support for his finding that there was no truth in the statements of the witnesses of the second bridegroom.

           

            Thus, as I said before : the Rashdam did not invalidate the act of sanctification but the testimony of the witnesses given subsequently with regard to that act. If that is so, and the reference is to the invalidation not of the material evidence but of the mode of taking the evidence, then such invalidation can have no bearing on the case before us, because -

           

1) the civil court is not bound by the rules of evidence of the religious law, and may, in any matter, take evidence also from a person not qualified to give evidence under Jewish law (see Cotic v. Wolfsohn (21)) ;

 

2) (and this is perhaps the main point) there is no dispute between the appellants and the respondent as to the act itself : everybody agrees that the first appellant has performed the act of sanctification. The question is only whether he has also succeeded in thereby sanctifying the woman to him, and this question, as is apparent, is totally unaffected by the disqualification of the witnesses after the fact ; incidentally, even in Jewish law,if both partners declare that the sanctification has taken place before two competent witnesses, they are bound by their declaration as regards the prohibitions resulting from their union (he is forbidden to her relatives, and she is forbidden to his) ; only where he has sanctified her in private, i.e. without witnesses, "a marriage is not recognised even if both of them admit it" ( Kiddushin 65^a , Shulhan Aruh, Even Ha-Ezer, 42, 2).

 

The Rashdam was one of the chief sponsors of the Salonica Ban ; he was foremost among those who spoke of the disqualification of the witnesses on account of that Ban ; nonetheless, as we have seen, he did not intend to invalidate the sanctification itself. Now if the Rashdam did not do so, how could his disciples? So I do not agree with the view that the Salonica Ban entailed the invalidity of the sanctification, and I am therefore of the opinion that the infringement of the Jerusalem Ban, too, did not invalidate the sanctification performed by the first appellant.

 

            c) At this point it will be asked : why, indeed, were the witnesses not disqualified at the time of the actual sanctification ? If the infringement of the Ban disqualified witnesses attending the ceremony, surely the sanctification itself was invalidated.

           

            The answer is to be found in the Responsa of Rabbi Shabtai Cohen, Part III, 1 (I have not been able to obtain the original, and therefore quote from Freimann, op. cit., p. 175). After Rabbi Shabtai - fellow-townsman and near-contemporary of the Rashdam - states that in spite of the numerous cases of "fraudulent sanctification in the presence of two witnesses" which occurred in his time in Salonica, he has never heard of a decision invalidating a sanctification on account of the infringement of the Ban by the witnesses, he raises the question as to the reason for this and offers the following solution :

           

            "It seems in my humble opinion, that the possible reason for this is that there are no grounds for disqualifying them (as witnesses to the sanctification) because of their infringement of the Ban, since that infringement took place while they were witnessing the sanctification, and they were not under any prior disqualification before attending the ceremony ; it follows that they did not become disqualified until after the woman was sanctified. The sanctification is thus completed. but the witnesses are 'wicked men' and disqualified from then on­wards."

 

            The language is somewhat difficult, but the idea is simple and clear : a person who becomes disqualified as a witness by reason of having committed a sin becomes so upon completion of the sin, in the present instance upon completion of attendance at the sanctification; by the time the witnesses become disqualified, the sanctification is already complete and valid.

           

            Exactly the same idea, in relation to a very similar question, occurs in the Responsa of Rabbi Moshe Rotenberg, Hoshen Mishpat, 5 (quoted in Pithei Teshuva, Hoshen Mishpat, 34, 5, 14). The question there was the legal validity of the evidence where the witnesses (as in that case) had by the very act of testifying in court, infringed a prohibition of the Torah. Is the evidence admissible or inadmissible ? The answer was : there has been the commission of a sin, but no disqualification, because the disqualification was as a result of the giving of evidence and committed only thereafter.

           

            This arithmetic of hours and minutes will doubtless seem to many as formalistic or an empty quibble; but such criticism will not be justified. It should be remembered that the disqualification of "a wicked man" from giving evidence, originating as it does in most cases in a particular passage of the Torah (see Sanhedrin 25^a and Baba Kama 72^b), is itself only a formalistic disqualification, a disqualifcation imposed by the law, operating quite regardless of the actual credibility or reliability of the witness (see Rabbi Shabtai Cohen, Hoshen Mishpat, 34, 1, 3). Therefore it is only just that we should watch most jealously the limits of such disqualification, even in a formalistic manner, for the very purpose of restricting the consequences of that other formalism.

           

            d) Although, perhaps, it is unnecessary, yet, to prevent all misapprehension, I would nevertheless emphasize that paras. (a) to (c) above refer solely to Bans such as the Salonica Ban and the Jerusalem Ban, which do not themselves, directly and by express provision, invalidate a marriage solemnized in contravention of them. I am not unaware that, in the Middle Ages and later, certain communities enacted "regulations" ("takkanot") or "agreed rules"("haskamot") which expressly and directly - by judicial "expropriation" of the sanctification money or by reference to the principle that a man who sanctifies presumably does so in conformity with the Rabbinical precepts (Gittin 33^a) - invalidated sanctifications not so complying. It is very doubtful, though, whether these regulations could actually have had the effect of invalidating marriages ; very few Rabbis applied them in practice and not only in theory. However, this question does not concern us, for the Jerusalem Ban, at least, contains no such invalidating provision. The question before us was merely whether this Ban causes invalidation of the marriage indirectly, through the disqualification of the witnesses, and as explained above, my answer to this question is in the negative.

 

            e) I have given consideration to a further point which, independently, forces us to conclude that the marriage of the first appellant is not invalid because of the infringement of the Ban by the witnesses. Let us not forget that the first appellant sanctified the second appellant, not before two, but before four witnesses : two who had been specially invited, Mr. Fisher and Mr. Hirsh, and two who had come to the scene as unbidden guests, Police Sergeants Katz and Pachter, These two police officers certainly did not infringe the Ban, because they had not come in order to abet an offence - had not, in the language of the Ban, "assumed the function" of witnesses  - but, on the contrary, had come to watch the unusual ceremony with a view to investigation and action by the police. On the other hand, although the two police officers had not been invited, and had not come in order to be witnesses to the sanctification, they became so automatically, because it is the law that "if a man sanctifies a woman in the presence of two persons without having said to them 'you are my witnesses', she is nevertheless sanctified" (Kiddushin 43^a ; Shulhan Aruh, Even Ha-Ezer, 42, 4) ; "even if the witnesses do not intend to be witnesses, but have only come to look on, they become witnesses, and the woman is sanctified" ("Beit Meir", quoted in Pithei Teshuva to Even Ha-Ezer, ibid., subs. 1i).

           

            It follows that even if we regard Mr. Fisher and Mr. Hirsh as disqualified witnesses by reason of the infringement of the Ban, the validity of sanctification still has some support in its having been "witnessed" - i.e. attended and observed-by the Police Officers Katz and Pachter, and this attendance and observation has been legally and adequately proved in the District Court.

 

            It might be objected that even Police Officers Katz and Pachter cannot be witnesses to the sanctification, because the disqualified witnesses (Fisher and Hirsh) disqualify the valid witnesses (Katz and Pachter) according to the well-known rule that "where one of them is a relative or disqualified, the testimony of both of them is invalid." The brief and simple answer is ; we are here concerned with the validity of the actual physical witnessing of the sanctification, and not with the acceptability of witnesses who are to testify on it subsequently, and in regard to this actual, physical witnessing - "seeing in itself", in the language of R. Yehuda - the aforementioned rule is quite inappplicable (see R. Yehuda's remarks in Tosefta Makkot 6^a, from the word "Shmuel").

           

            f) In conclusion, I would point out that the whole idea of the disqualification of witnesses because of a Ban has never gained wide acceptance in rabbinical literature, and that it is very doubtful whether there is still room for it at all in our day, especially in the case of the Ban which - unlike the Salonica Ban of the Rashdam of Modena - has not gained much recognition even in this city. This is what Meirat Einayim on Hoshen Mishpat 34, 5, 10 writes:

           

            ".... but a person who infringes bans imposed by community regulations should not be disqualified from giving evidence, for in that case not one in a thousand would be qualified."

           

            If this applied in the days of the author of the Sefer Meirat Einayim, it applies all the more today. That idea of the disqualification of the witnesses is still sometimes resorted to - but even then only as a secondary consideration - where it is a question of permitting the remarriage of a deserted wife, the whereabouts of the husband being unknown, since Rabbis have at all times regarded it as their sacred duty to release such an unhappy woman from the bonds of matrimony and to use, in a matter of this kind, their power to allow rather than their power to forbid. This is evidenced by thousands of responsa releasing such women on the strength of very flimsy suppositions, from a patent desire to grant them relief ; the judges have here, in fact, entered the domain of the legislator.

           

21. It follows that the first appellant has contracted a marriage with the second appellant by way of "sanctification by something of value", in the presence of competent witnesses, and that by virtue of that act, they have to be regarded as husband and wife. The fact that the husband is, or may possibly be, of priestly stock and that the woman is a divorcee in no way affects the validity of the marriage. Although the prohibition of the marriage of a divorced woman to a man of priestly stock is a disobedience of the law: "Thou shalt not......", a marriage involving the infringement of such laws is nevertheless valid (Kiddushin 68^a, and elsewhere). I will not here express an opinion as to the legal consequences of this prohibited marriage in respect of maintenance, the marriage settlement, the succession of the husband and the like, because there is no claim before us on these points within the framework of this case. What the appellants have claimed is a declaration that they are "married" to each other, that is to say, that he is her legal husband and she his legal wife, and to this declaration they are entitled.

 

22. I have arrived at this conclusion with considerable reluctance. I frankly admit that my inclination, as a judge and as a man, has been, from beginning to end, not to give official sanction to that private ceremony. Nobody will approve of marriage ceremonies like this and no judge will feel sympathetic towards applications like the present. I have examined very carefully whether there is not some basic flaw in a marriage of this kind, but I have found none. I thought for a moment that it might be possible to invalidate it on the ground that the whole intention of the couple was, not to become married to each other in accordance with Jewish law but, as appears from the sworn declaration quoted in paragraph 2(g) above, to obtain a marriage certificate entitling the "head-of-family" to receive a ration-card, income-tax facilities and other similar paraphanalia. I told myself that the solemnization had been effected not for "sacramental" but for documentary purposes and that there had been no intention of sanctification. But I had eventually to reject all these arguments in favour of validation. For the purpose of sanctification it is the events that matter, "and in matters of sanctification no conjectures and no evidence are admissible to disprove the intention of sanctification." (See R. Moshe Isserlis, Even Ha-Ezer, 42, 1; see also ibid., 4.)

 

- Moreover, even if we were permitted to use such conjectures and evidence, and thereby - on the well-known principle that there are certain conclusions which a judge must draw from given circumstances even without formal proof - to ascertain the ultimate intention of the couple, those secondary objectives would not in themselves be calculated to invalidate the matrimonial relationship established between them. For in matters of sanctification, it is intended relationship, and not any ulterior motive, that counts (even in the case of the seven women who "take hold of one man, saying, 'We will eat our own bread, and wear our own apparel : only let us be called by thy name, to take away our reproach' " (Isaiah IV, 1), and who thus avowedly marry for "nominal" reasons, it is very doubtful whether it would have been possible to permit remarriage on the strength of this solemn declaration). This is illustrated by the great difficulties confronting the rabbinical courts in this country when attempting to dissolve "fictitious" marriages. An ancient precedent is to be found in the Tosefta story (Ketubbot V, 1) of R. Tarphon, a man of priestly stock, who, in a year of dearth, married three hundred women for the sole purpose of enabling them to partake of the priestly dues - which reminds us, if the comparison could be permitted, of the ration-cards of the first appellant.

 

            The same inclination not to annul a marriage by reason of its having been contracted "fictitiously" (for the purpose of obtaining citizenship, an entry visa or the like) is conspicuous also in the secular jurisprudence of the British Commonwealth as shown, for instance, by the South African judgment of Martens v. Martens (51), quoted with unqualified approval in N. v. H. (34). This principle prevails also in several Central European countries; we know that famous revolutionaries, such as Rosa Luxemburg in Germany in 1898, succeeded in avoiding deportation by means of such fictitious marriages. The reluctance of the legislator and the judge to probe into the purpose of the marriage is thus a feature common to the matrimonial law of a number of legal systems - both religious and secular - and the reason for it is easy to see: intimate matters such as the genuineness of the relationship between spouses are impossible to investigate, and a sensible legislator will not be anxious to prohibit an "evasion of the law" which cannot be prevented. We may here - with a slight change in wording - apply a talmudical dictum Yevamot 65^b) :

           

            "Just as the legislator is required to legislate reasonably so is he required not to legislate unreasonably. If he does the latter, he will find himself among the 'aiders and abettors' of transgressors."

 

            In short: I have reviewed every aspect of the case, and have found no ground for the annulment of the sanctification. I therefore consider it my duty as a judge to declare its legal validity. A judge has nothing to go upon but the law, and therefore must not disregard anything he finds therein, whatever the consequences. There is no one more competent in matters of religion and religious law, and no one more jealous of them, than the Chief Rabbis of Israel, and they, too, in a similar case, have declared the validity of a marriage. I am referring to Appeal No. 1/60/706 (22), mentioned in paragraph 19 above. That case, too, concerned a sanctification performed without ten witnesses, without a canopy, without benedictions and without a Rabbi, and there, too, the parties were a man of priestly stock - definitely, not merely possibly, so - and a divorcee. The man was subsequently left by the divorcee and married another woman, lived with her for several years and then died. The two women then began to litigate over the estate. The matter came before the Rabbinical Court of Appeal where the second wife of the deceased appeared as appellant, the first wife as respondent. One of the arguments of the appellant was:

           

            "...the court (i.e. the court below) should not have entertained the application of the respondent and sanctioned after eighteen years a secret sanctification effected without a canopy, without benedictions, without a Rabbi and without ten witnesses. Such a judgment not only casts a slur on the deceased and his daughter, who is stamped by it as illegitimate, but it is likely to become a very dangerous precedent and to have a deleterious effect on Jewish family life." (ibid., p. 134.)

           

            This contention of the appellant was dismissed by the learned Rabbis as follows:

           

            "It is true that in the present case the marriage was forbidden by the Torah, and that both husband and wife infringed a prohibitive law, that is to say that a man of priestly stock shall not "take a woman put away from her husband" (Leviticus XXI, 7), but the court was not for this reason prevented from affirming the validity of that marriage, because a sanctification infringing a prohibitive law is nevertheless valid; on the contrary, the court was in duty bound to define the present personal status of the wife in accordance with her application, notwithstanding that this status is based on a sanctification contrary to the law of the Torah, and regardless of the fact that the husband is no longer alive, for the wife is of course interested even after the death of the husband in the determination of her personal status." (ibid., p. 136.)

 

            These are most telling remarks, worthy of those who made them. The Rabbis did not refuse to give that widow the relief claimed by her, although she herself, by the very act in question, had by no means behaved in accordance with the law. Just as there is no mercy in the law, so there is no resentment in the law. Nor were the learned Rabbis afraid of the difficulties and dangers to family life suggested by the second wife; because the refusal to adjudicate according to law is in itself an offence, and no one is told, "Do commit an offence, so that you may reap a benefit" (Menahot 48a).

           

            We, in this court, are even less in a position to withhold our judicial opinion as to the marriage contracted by the first appellant; we must categorically declare its validity.

           

            In the light of all I have said, I think that the appeal should be allowed and that the appellants should be granted the declaration requested by them, namely, that on December 16, 1952, at Tel Aviv, the first appellant contracted a marriage with the second appellant by way of "sanctification by something of value," and that they are to be regarded as husband and wife as from that date.

           

SUSSMAN J. In this appeal I have had the advantage of reading the judgments of my learned colleagues, which show that the following three problems arise:

 

            a) Was the District Court competent to continue dealing with the application of the appellants after the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter referred to as "the said Law") had come into force?

           

            b) Are the appellants married to each other?

           

            c) Do considerations of public welfare demand that the court refrain from granting the appellants the relief which they claim?

           

2. As for the first problem: the question arises whether s. 1 of the said Law is a purely procedural provision for seeing that a person has no vested right in procedure, a provision introducing a change in procedure applies also to proceedings which began before that provision came into force. Thus, the provisions of the said Law concerning jurisdiction do not apply to the present case unless they are procedural; if they are substantive, the application of the appellants must be determined according to the rules which obtained before the said Law came into force.

 

            I do not think that section 14 of the Interpretation Ordinance helps the appellants; section 17(2)(e) of that Ordinance refers to proceedings for the enforcement of a right arising from a Law which has been repealed; such a right is susceptible of enforcement even after the Law from which it arises has been repealed, since a new Law does not, as a rule, detract from a substantive right a person has acquired. As for rules of procedure, however, it is generally agreed that there can be no vested right in them. As to this point, I have nothing to add to the remarks made by my esteemed colleague, Justice Cheshin, in paragraph 12 of his judgment.

           

            On the other hand, I think that it would be unrealistic to say that the extension of the jurisdiction of the Rabbinical Courts, and the curtailment of the jurisdiction of the civil courts, by the provisions of the said Law represent a change in procedure only. In paragraph 12 of his judgment Justice Silberg points to the fact that jurisdictional change has affected in a substantive manner the validity of marriage : where a couple have married in a foreign country before a civil official, in accordance with the laws of that country, a civil court in Israel will recognise the marriage, but a Rabbinical court will regard it as null - by reason of the "universal" effect of Jewish law, which does not require or invoke the rules of international law designed to settle conflicts between the legal systems of different countries; it makes no difference that a question of private international law did not arise in the present case; the fact that had such a question arisen the Rabbinical court would not have decided it in the same way as a civil court is sufficient to convince me that the significance of the change resulting from the provisions of the said Law with regard to the powers of the courts is not purely procedural.

           

            Moreover, the technique applied by the legislator is calculated to support my conclusion. Section 1 of the said Law vests the Rabibinical court with exclusive jurisdiction in matters of "marriage and divorce of Jews in Israel, being nationals or residents of the State". The legislator did not specify according to what law the Rabbinical courts were to deal with those matters. But it is beyond doubt that it intended not only to transfer jurisdiction from the civil court to the religious court (in so far as it had previously been vested in the former), but also to make Jewish law applicable to those matters from the substantive aspect. This meant, in so far as jurisdiction in matters of the personal status of foreigners was transferred to the Rabbinical courts, the repeal of the rule embodied in Article 64 of the Palestine Order in Council, which prescribes the application of the national law of the persons concerned. By way of a change of jurisdiction the legislator introduced, in effect, a change in the substantive rights of the parties.

 

            It follows that, even if the power of the District Court to deal with an application like the one before us was withdrawn, its power to continue dealing with and determine such proceedings has not been affected.

           

3. The marriage contracted in this case is valid according to Jewish law in spite of the Biblical prohibition.

 

4. There remains the third problem on which, again to my regret the views of my learned colleagues are divided.

 

            I am not prepared to dispute the principle enunciated by Justice Cheshin, namely, that, in considering whether or not to grant declaratory relief, the court may take into account the behaviour of the parties, as reflected in the actions which constitute the basis for their application to the court. However, even if we take this factor into account, there is still an important consideration which, in my opinion, tips the scales in favour of the appellants: the Biblical prohibition infringed by the appellants is a lex imperfecta, since no sanction is attached to it, and a marriage contracted in disregard of it is nevertheless valid. In fact, as hinted by my colleagues, should the appellants apply to a Rabbinical court, the latter will recognise the validity of the marriage (see Stark v. Chief Execution Officer (6)) and grant the declaration requested. So what point would there be in a civil court acting otherwise? It seems to me that in a case like the present the need to remove doubts as to the personal status of the appellants (and to remove such doubts is the purpose of the declaration prayed for) is a more weighty consideration than the behaviour of the parties.

 

5. In conclusion, I wish to add one remark. My learned colleagues have already expressed their distaste for the irregularity of a secret marriage. I share this feeling, but would not be easy in my mind unless I called attention to the situation which in my opinion has given rise to that marriage. Persons of religious views will of their own accord avoid infringing religious prohibitions and not take the course the parties in this case have taken. However, those who are not religious have no opportunity in this country of contracting a marriage by way of a civil ceremony, under the auspices of the State authorities. There is, in my opinion, no better way to prevent the recurrence of what happened in this case than the enactment of a civil marriage Law, which will enable those who do not wish to have a religious marriage ceremony to undergo a civil marriage. I agree that the appeal be allowed and the appellants granted the declaration sought.

 

CHESHIN J. This is an appeal against a judgment of the District Court of Tel Aviv dismissing a claim for an order declaring that a sanctification of the second appellant (a divorced woman) to the first appellant (a man of a priestly family) solemnized by a lawyer in his office and not in the presence of ten persons, is a valid and binding sanctification according to Jewish law.

 

2. I must confess that had the question of the validity of the sanctification been the only question before me, I would not have hesitated for one moment to express my full concurrence in the exceptionally clear and well-reasoned judgment of my colleague, Silberg J., without adding one word to it. At the very outset, before entering on the merits, however, we are faced with two important and weighty questions to which we must find an answer and, to my great regret, I differ from the opinions of my learned colleagues in regard to both of these questions. The first question relates to the jurisdiction of the District Court, and the second question relates to the discretion of the Court to grant the declaratory order sought. I shall deal with these questions one by one.

 

3. In regard to jurisdiction, the claim was brought at the beginning of 1953, and it is not disputed that the District Court was at that time competent to deal with it. In the course of the proceedings, however, and before judgment was pronounced, the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, which introduced a number of important changes in the legal position which previously existed in the field of personal status, was passed. Section 1 of that Law provides:

 

            "Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under , the exclusive jurisdiction of Rabbinical Courts"

           

            Since it is not disputed that both the appellants in this case are nationals and residents of Israel, it is clear that had they brought their claim to-day, they would have had to lodge it in the Rabbinical Courts. The question therefore is whether, and to what extent the jurisdiction of the District Court to continue to hear the claim in question, which was pending before it at the time the new Law was enacted, was affected by that Law.

           

4. No authority dealing with the interpretation of statutes is necessary for the proposition that a new Law is presumed not to affect vested rights in any way, and that it does not operate to annul, vary, replace, derogate from or add to such rights, unless the legislature has disclosed its intention of doing so in unambiguous terms. Every statute, therefore, is deemed to be prospective, that is to say, to apply to the future, and not retrospective, that is to say, to apply to the past. The direct logical result of that interpretation is that the provisions of a Law which are repealed by a later Law remain in force and fully operative in regard to rights acquired by a person before such repeal, whether the repeal was prior to the presentation to court by such person of a claim to his rights, or whether it was subsequent to such claim but before the case was decided. My colleague, Silberg J., cited a number of authorities to this effect, and I do not intend to cite them here a second time. I shall merely add one or two cases in order to support this view.

 

            In Leeds and County Bank v. Walker (35), Denman J. said, at page 91:

           

            "...in the absence of anything in the Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to the note in question as it existed in 1880, and down to the time when the present action was brought..."

 

            In Maxwell's work on the Interpretation of Statutes (9th ed.) p. 229, it is mid (as quoted in the judgment of Evershed M.R. in Hutchinson v. Jauncey (28)):

           

            "In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."

           

            The very same principle is laid down in section 17(2) (c) of the (Palestine) Interpretation Ordinance, 1945, which provides that:

           

            "Where any enactment repeals any law, such repeal shall not... affect any right, privilege, obligation, or liability, acquired, accrued, or incurred, under any law so repealed."

           

            A distinction, however, must be drawn - and all judges and commentators, without exception, are in agreement with such a distinction  - between substantive rights and rules of procedure. It is agreed by all that no one acquires a vested right in rules of procedure, and that a litigant will not be heard to say: my claim must be determined in accordance with the procedure which existed at the time that I acquired my rights or at the time that I filed my claim, and new rules of procedure which were framed thereafter do not apply to it. A number of authorities on this point, too, were cited by my colleague, Silberg J., and I shall content myself with adding only a few more.

           

In Gardner v. Lucas (36), Lord Blackburn said, at p. 603:

 

            "...I think it is perfectly settled that if the Legislature intended to frame a new procedure, that instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. Then, again, I think that where alterations are made in matters of evidence... those are retrospective, whether civil or criminal."

 

            Even before this, in Kimbray v. Draper (37), Blackburn J. had said, (at p. 163) that:

           

            "When the effect of an enactment is to take away a right, prima facie it does not apply to existing rights; but where it deals with procedure only, prima facie it applies

to all actions pending as well as future."

 

6. This same principle was first fully adumbrated and explained in Wright v. Hale (38), which is regarded as the leading authority. In that case Pollock C.B. said, at p. 445 :

 

            "There is a considerable difference between such laws as affect vested rights and those which only affect the proceedings or practice of the Courts ...If therefore a Statute were to say: 'In questions which depend an mere judgment ...no suitor shall be allowed to call more than three witnesses', that enactment would apply to all actions, whether pending at the time it was passed or to be brought afterwards; it would be an enactment relating to practice, and a suitor could not say: 'I have a right to call as many witnesses to that subject as I please, and will therefore call ten surveyors, ten brokers, ten surgeons, etc. A matter of that sort cannot be called a right, and I think, when a statute merely alters the course of procedure in a cause, and does not especially say that its provisions shall not apply to any action commenced before it came into operation... its provisions will apply to the procedure in such actions."

 

7. This principle too - namely, the principle relating to matters of procedure - was laid down in numerous English cases which are followed by the courts until today. My attention has not been directed to even one judgment in which judges have deviated from this principle in the slightest degree. Matters of procedure are decided according to the existing law, and this rule also applies to claims which are pending. There is one exception to this rule, and that is the right to appeal in an existing claim.

 

            "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure".

           

says Lord MacNaghten in the case of The Colonial Sugar Refining Co. v. Irving (30) (see also Craies on Statute Law, 5th Ed., p. 371).

 

8. In connection with statutes, moreover, which are directed towards divesting a court of its jurisdiction to deal with a particular category of claims, it would appear that opinions in England changed somewhat in later years on the question of the application of such statutes to claims which are pending. Thus, for example, in re Joseph Suche and Co. (27), it was said by Jessel M.R. that:

 

            "it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them."

 

            But the observations made in Hutchinson's case (28), and the rules laid down in that case, deviated from the principle stated. In that case Evershed M.R. said at p. 579:

           

            "Having examined the many cases cited for the landlord, I doubt whether the principle ought to be expressed in quite such precise language as Jessel M.R. used in re Joseph Suche & Co. Ltd. (27). In other words, it seems to me that, if the necessary intendment of the act is to affect pending causes of action then this Court will give effect to the intention of the Legislature even though there is no express reference to pending actions."

 

            It follows that in matters of procedure and jurisdiction, even in regard to claims which are pending, we are to be guided not only by the express language of the legislature, but also by the intention to be gathered from that language.

           

9. The great importance for our purposes of Hutchinson's case (28), and the remarks of Evershed M.R. which I have cited, lie in the fact that that case dealt with a new law which divested a court of its jurisdiction to deal with a particular class of claims and its effect upon a claim which had been brought before that law came into force. The court reached the conclusion that by virtue of the new law, it had been divested of jurisdiction to deal with a claim which had already been filed, but had not yet been determined. Effect was thus given - though this was not expressly stated - to what had already been decided in England, namely, that a statute which introduces a change in the jurisdiction of a court also applies to claims which are pending. (See, for example, Warne v. Beresford (39), the Ironsides' case (40), and the observations of Maxwell, Interpretation of Statutes, 9th edition, p. 233 on Warne's case (39).)

 

10. I also find some support for this principle in Hamden v. Nabus (7). The facts of that case were as follows. After the constitution of the Land Courts in this country, a certain land case was brought before the Land Courts in Sh'khem. When it became known to the Court however, that the same case had previously been brought before the Sharia Court 1⁾ and had not been concluded, the Court dismissed the claim, holding that the Sharia Court and that court alone, was competent to deal with claims that were pending before it. The Appeal Court rejected this opinion, and said:

 

            "By the Proclamation of 1918 all jurisdiction over cases concerning ownership of land was taken from the Sharia Court... Instead, a jurisdiction has been given to the Land Courts by the Land Courts Ordinance, 1921. Whether or not a case was pending in the Sharia Courts at the date of the Proclamation, the Courts were prohibited from giving any judgment deciding the ownership of land... The judgment of the Land Court must be set aside and the case heard."

 

            It must be noted that the Proclamation of 1918 (that is the Proclamation of June 24, 1918), entitled "Constitution of Courts", (Bentwich, Legislation of Palestine, 1918-1925, Vol. I, p. 605), did not expressly and permanently abolish the jurisdiction of the Sharia Court to deal with land cases, though it did direct - in section 23 - that "until further notice the Court shall not give any judgment decided the ownership of land ..."

           

            It was not therefore, the intention of the Proclamation permanently to deprive the courts - including the Sharia Courts - of the jurisdiction to deal with land matters, nor to lay down that cases pending before those courts should be transferred to courts other than those which existed or which would be established in the future, as it did provide, for example, in section 25 of that Proclamation. The intention of the Proclamation was merely to suspend the jurisdiction of the court to give judgments in land matters for an unspecified period, that is to say, until the giving of further notice. That additional notice was not given; the jurisdiction of those courts was not explicitly terminated, and no direction was given as to the fate of cases which were pending before them. Instead of this a new Ordinance, the Land Courts Ordinance, 1921, was enacted, and that Ordinance, too, did not provide that cases which had begun in other courts should be transferred to the Land Courts, or be disposed of in some other way. Nevertheless, it was held by the Court of Appeal in Hamdan's case (7), that the jurisdiction to deal with those cases which were pending before other courts had been conferred upon the Land Courts which were established for the first time by the new Ordinance. It follows that a case which has been filed in a competent court, and is pending before that court at a time when jurisdiction to deal with cases of that kind is conferred upon another court, must be dealt with in such other court, although the jurisdiction of the court in which the claim was first filed has not been taken away from it, and has not been clearly terminated. And why is this so? The reason, in my opinion, is that a person has no vested right in rules of procedure. From the time, therefore, that a new law was passed conferring jurisdiction upon special courts, the jurisdiction of the existing courts came to an end in respect of pending claims as well, and such claims, when brought before the special courts, cannot be said to be pending in two courts at one and the same time, as the Land Court thought was the position in Hamdan's case (7).

 

11. It has been said that section 17(2)(e) of the Interpretation Ordinance is designed to prevent any legal proceedings which have commenced from being affected. What is referred to, however, are legal proceedings "in respect of any such right, privilege, obligation" and so forth, as stated in subsection (c), and the meaning of the provision is that where a right or obligation, etc., has been changed, such change shall not affect any legal proceedings which have already begun in connection with such right or obligation.

 

            I would mention here, in passing, that section 17 of the Interpretation Ordinance is substantially similar to section 38 of the English Interpretation Act, 1889, and it has already been laid down more than once that the rights spoken of in section 38 are material rights, personal rights, and not abstract rights, rights in matters of procedure and other rights of that kind (see, for example, Gell v. White (41)).

 

12. Let us now return and enquire what was the purpose of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953. Was its purpose to change vested material rights, or was it to introduce a new procedure and different jurisdiction? It should be pointed out at once that the name of the Law indicates its content. This is a law relating to jurisdiction. Its whole purpose is to define the limits of jurisdiction of the Rabbinical Courts. Section 1, which is the most important section for our purposes, lays it down that: "matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of Rabbinical Courts."

 

            Not a single word in this section is designed to affect in the slightest degree any substantive rights of the individual, to vary them, change them, or derogate from them. The section deals with the question of the jurisdiction of the courts alone, and details those matters which shall henceforth fall within the jurisdiction of the Rabbinical Courts. From the historical point of view the real meaning of this section, and the background of the law as a whole, are well known. It may be mentioned in parenthesis that the legislature itself has pointed out the purpose which the law was intended to achieve. In the explanatory note to the proposed law (see Proposed Laws, No. 163, of May 12, 1953), it is said:

           

            "The proposed Law removes the restriction contained in the Mandatory Legislation... which established the jurisdiction of the Rabbinical Courts only in respect of persons who were 'members of the Jewish Community', that is to say, who were registered in the Register of the 'Knesset Yisrael', and who were not foreign nationals."

           

            I do not intend to say that we are entitled to interpret the Statute in the light of the explanatory note of the legislature to the proposed Law. That explanation, nevertheless, throws light upon the legislative background, and from this point of view is likely to give additional support to the interpretation which follows in any case from the law itself. Were it said in the Law, for example, that the marriage of a person of priestly family and a divorced woman will henceforth be void, or that a religious marriage which was not celebrated in the presence of ten persons, shall be deemed not to have been celebrated at all, there would be room for the argument in each of these cases that vested rights of the applicant and others in a similar position had been affected, and that since the legislature did not expressly reveal its intention that the Law should act with retrospective effect, it has no effect upon claims which were pending in the civil courts at the time that the Law came into force.

 

            That was in fact the basis of the decision of the High Court of Justice in Babayofff v. Chief Execution Officer (8). That was a case of maintenance which had been dealt with in the Rabbinical Court. At the time the claim was filed the parties were thought to be Palestinian nationals, and the Rabbinical Courts were therefore competent to deal with the case. In the course of the proceedings the law was changed, and persons of the class to which the parties belonged were accorded the status of foreign nationals. The effect of this change in the law, therefore, was to deprive the parties of their status as Palestinian nationals, that is to say, to change them from Palestinian nationals to foreign nationals. In these circumstances it was held by the High Court of Justice that the new Law was not retroactive, and that it therefore had no effect upon the proceedings that were pending. The position is entirely different in a law such as the one we are considering, in that that Law does not deal at all with the rights and status of the litigants, but only with the jurisdiction of the court. Nothing whatever is said in the Law about the personal rights of individuals. The whole object of the Law is to introduce a procedural change. Before the Law was passed, the appellants could have brought their claim before the civil courts of the State. After the enactment of the Law they, and persons in the same situation, have to bring their claims before the Rabbinical Courts of the State. Where, therefore, is the substantive personal right which has been affected? What has happened is that the forum has been changed; there has been in these circumstances nochange in a right or deprivation of a right.

 

13. It has been submitted that a statute which transfers jurisdiction from one court to another cannot affect pending claims. As authority for this proposition the case of Nassar v. Attorney-General (2) was cited. In that case a man had been convicted by a civil court, and it was argued on appeal that that court had been deprived of jurisdiction in the course of the proceedings on the charge, since military courts had been established after the appellant had been charged but before he had been convicted, and jurisdiction to deal with the offence of the type of which the appellant had been convicted, had been conferred upon the military court. This submission was not accepted by the court which contented itself with the following laconic judgment: "In our view, having regard to section 5 of the Interpretation Ordinance, the accused was properly tried by the civil court."

 

            This was the sole ground upon which the court based its decision. We have already seen, however, that the court held otherwise in Hamdan's case (7), and it seems to me, moreover, with all respect that the court fell into error in Nassar's case (2). At that time the Interpretation Ordinance, 1929 ( Drayton, Cap. 69), was in force, and section 5(1)(e) of that Ordinance - which is fundamentally similar to section 17(2)(e) of the Interpretation Ordinance of 1945 - provided that the repeal of an Ordinance shall not affect "any investigation, legal proceeding or remedy in respect of any such right and any such investigation, legal proceeding or remedy may be instituted, etc." But we have already seen that that 'right' which is spoken of here is the right mentioned above in section 5(1)(c) - which is identical with section 17(2)(c) of the Ordinance of 1945 - and the meaning of that right is a personal, substantive right acquired by a person, and not some abstract advantage gained from the rules of procedure. The whole purpose of section 5 was to prevent a substantive right from being affected by the Law which was repealed,and not the judicial procedure itself.

           

            14. It has also been submitted that there is not in this case a change of the jurisdiction of the courts alone, but also a material change in substantive law and the application of the law. I do not accept this submission. The appellants applied to the District Court and sought a declaration in regard to their personal status. It is not disputed that their status is to be determined according to Jewish law. What then is the difference between the District Court and the Rabbinical Court? Both courts will have to deal with the matter within the same framework of substantive law, while the Religious Court has the advantage that it is also competent to decide questions of Jewish law, on which some of the greatest of the rabbis of Israel have differed. In what respect then can the appellants be aggrieved if they must now seek their remedy in the Rabbinical Courts?

           

 15. The doors of the Religious Courts, moreover, are wide open before them. And they may also have resort to legal precedents. I refer to the case of A. v. B. (22). In that case a Rabbinical Court was asked at the outset to decide the question of the validity of a sanctification which had been performed between a member of a priestly family and a divorced woman, before two witnesses alone, without ten persons being present, and without the canopy and the recitation of the traditional blessings. The Rabbinical Court pronounced the marriage valid. In the judgment, on appeal, of the Supreme Rabbinical Court of Appeals it is said, inter alia:

 

"The Supreme Court holds that the court of first instance was correct in law in accepting the evidence of the witnesses in regard to the marriage of the respondent and the deceased; although this marriage was forbidden by the Bible, being a marriage of a divorced woman to a member of a priestly family, nevertheless the marriage was valid, and made the woman the wife of her husband all the days of her life, and she is regarded as the widow of the deceased after his death." (Ibid., p. 135.)

           

            And two important principles - of those relevant to the matter before us - were laid down in that case by the Rabbinical Court of Appeals. First, "the right of any person interested to request the Court to determine his personal status", and secondly, "a marriage without a canopy and the seven blessings, without the presence of ten Jews and without the drawing up of the marriage contract - although such a marriage is a disgraceful mode of procedure contrary to the teachings of the scholars and the accepted custom in Israel - such a marriage, despite the above defects, is valid." (Ibid., p. 139.)

           

            From the point of view of its jurisdiction the Rabbinical Court accordingly reached the conclusion that it was "obliged to entertain the application and give its decision in accordance with the results of its consideration and deliberations" (ibid. p. 135-136), and, as I have said, in regard to the merits of the case, held the marriage to be valid. In which respects, therefore, will the rights of the appellants be adversely affected if it be held that the law in question operates with retrospective effect, and that it is to the Religious Courts that they must now present their claim? The opposite is the case I have great doubts whether a civil court is obliged to entertain the case of the appellants, not from the point of view of lack of jurisdiction alone, but also from the point of view of discretion - an aspect which is not taken into account in the Rabbinical Courts, as we have seen above - but I shall return to deal with this question later at greater length.

 

16. It has been said that the law of evidence in a Rabbinical Court is not the same as the law of evidence, and the method of assessing evidence, in a civil court, and it has also been said that the system of justice in the two sets of courts cannot be compared, and that the principles of private international law will not be accorded proper recognition in the Rabbinical Courts. We are asked to conclude from these considerations that the transfer of the jurisdiction from the ordinary court to the Rabbinical Court is not a matter of procedure alone, but involves a fundamental change of material rights. There are a number of replies to this submission. In the first place, in regard to the law of evidence and the assessment of the sworn statements of witnesses, these are matters relating to the procedure of the courts, and we have already said that a person has no vested rights in matters of this kind. Secondly, in regard to private international law, no question has arisen in the present case which calls for investigation or clarification according to the principles of private international law, and this is neither the time nor the place for a consideration of this question. Thirdly, it is true that the Rabbinical Courts do not regard themselves as bound by the principles of private international law, but that is no proof that those courts will never in any case be prepared to follow those principles, and in a proper case will pay no attention to them. And finally, even if we must regard the new law as altering material rights upon the single ground that the Rabbinical Courts do not recognise the principles of private international law, what is the distinction between a case that is pending - such as the case before us - and a case which has not yet been brought? A case brought from now onwards in the Rabbinical Courts will not be subject there to the principles of private international law, although the marriage was celebrated before the new Law came into force. This conclusion, as it seems to me, is plainly inconsistent with the presumption - which is not disputed  - that also in cases such as that before us jurisdiction will henceforth be in the hands of the Rabbinical Courts.

 

17. In short, it is my opinion that it was not the intention of the new Law - the Law of Marriage and Divorce - to impair any material right of the appellants, and persons similarly placed. Section 1 merely lays down which court is competent to deal with matters of marriage and divorce relating to Jews of the class of the appellants. It follows that it merely regulates matters of procedure and nothing more. In the leading case, Wright v. Hale (38). which I have already mentioned,. it was held by Channell B. that:

 

"Where the giving to a statute a retrospective operation would be to divest a right to put an end to an action by plea or such like, the Court should clearly see that the Legislature intended such a retrospective operation; that rule does not apply where a statute only relates to procedure or practice."

           

            The Law of Marriage and Divorce deprived no one of his right of action. Nor did it impair any other substantive right. It was de­signed to change the procedure which was previously employed in regard to the jurisdiction of the courts of the State to deal with matters of marriage and divorce of particular classes of persons. Section 1 of the Law does not provide that "claims in regard to marriage, etc. shall be brought only in the Rabbinical Courts". Had the law laid this down, I would have said that "shall not be brought" ex­cludes cases which have already been brought. The Law lays down another and different provision, namely, that from the day the law comes into force those matters shall be dealt with in the Rabbinical Courts. In other words, no other court will in the future be com­petent to hear and decide such matters. This intention on the part of the legislature is, in my opinion, clear, and it is therefore right that this procedural provision should apply not only to claims which will be brought in the future, but also to claims which had already been brought and were pending at the time that the Law came into force, since the civil courts have been deprived of jurisdiction to give a decision in such matters.

           

18. The dicta of Dunkelblum J. in Kwatinski v. District Com­missioner (20) do not, in my view, contradict what I have said above, and this for two reasons. In the first place, the law which was being considered in that case by Dunkelblum J. dealt with the material rights of the individual, and not merely with questions of procedure. Secondly, the Law there dealt with repealed older Laws, and since the legislature "found it desirable to create unity in the position of various persons", (to quote the words of the judgment in that case) it enacted special interim provisions in order to preserve the rights which were vested in such persons. Completely different is the case of a law which does not expressly repeal earlier laws, but which lays down provisions the purpose of which is merely to transfer the jurisdiction of one court to another court.

 

19. For these reasons it seems to me that the learned judge in the District Court was right in his conclusion - shortly expressed - that he had no jurisdiction to deal with the case. I am not sure that it was necessary for him to dismiss the claim completely - as he did - for this reason: it seems to me that in the circumstances, since the Rabbinical Courts are also included within the framework of the courts of the country, he could have transferred the case to the local Rabbinical Courts for consideration, without the appellant being compelled to restart proceedings.

 

20. In view of my conclusion as stated above, according to which the District Court is deprived of jurisdiction to deal with the matter, there is no need for me to consider the other questions which have arisen in this appeal. However, since my opinion is a dissenting opinion, I shall add some dicta on one further question, namely, whether in the circumstances of the case before us the court should have exercised its discretion in favour of the appellants.

 

21. The relief claimed is a declaration that the sanctification by which the first applicant - a person of a priestly family - married the second applicant - a divorcee - was valid; and that the applicants are married to each other according to Jewish religious law. A District Court is competent to grant relief of this kind by virtue of Rule 52(4) of the Civil Procedure Rules, 1938, which provides that:

 

            "No action shall fail on the grounds that the relief claimed is declaratory only."

           

            The rule referred to does not differ in principle - though it is very much more limited in scope - from Rule 5 of Order 25 of the Rules of the Supreme Court of Judicature in England. This last mentioned rule has been the subject of much discussion from the very day of its coming into force - in the year 1883 - and a number of basic principles in regard to its application have been laid down for the guidance of the courts. These principles may assist us in solving the question whether the circumstances of the case before us justify the granting of the declaratory order sought or not before examining those principles, however, it will be proper to point out very shortly the nature and origin of an order declaring rights.

 

            The remedy in question developed in three stages. Before 1852 the Courts of Equity in England were not accustomed to grant declarations of rights, save as relief which was incidental to the principal remedy sought in the claim. This does not mean that they did not regard themselves as competent to grant such orders. There is no doubt that they were competent, but they saw no necessity to exercise that power since they did not regard the grant of declaratory orders alone as an appropriate solution for the problems which were brought before them. In order to amend this custom, which was accepted in the Courts of Chancery, Section 50 of the Chancery Procedure Amendment Act, 1852, was passed. This section laid down that Courts of Equity would be entitled to grant orders declaring rights, although no additional principal remedy had been sought in the body of the claim, and no such remedy was granted by the courts. This second stage, however, did not see the complete solution of the difficulty, since according to the interpretation given to Section 50 by the courts, declaratory orders would not be given save where the court was also competent to grant the principal remedy, although such remedy was not claimed by the plaintiff. This state of affairs continued until 1883, in which year Rule 5 of Order 25 - that is the third stage in the development - was made, which empowered the court to give Declaratory Orders whether a remedy ancillary to such relief was claimed, or not. (On this point see the judgment of Bankes L.J. in the Guaranty Trust Co. v. Hannay (31).)

           

22. In the Rules of Procedure which we are accustomed to follow, the provision parallel to Order 25, Rule 5, is Rule 52(4), although, as I have said, our Rule is very much more restricted than the English rule from which it was taken ; and there is room for the submission that our rule introduced to our law only the second stage of the development which I have described, and that we have not yet reached the third stage of that development. I make no comment on this submission, because it was not argued before us. One thing is clear, however, from all that I have said, and is not disputed: the source of a declaratory judgment is to be found in the Courts of Equity. Since that is so, it seems to me that it would not be proper to grant such an order without paying due regard to the accepted principles of equity.

 

23. Let us now deal with some of the judgments of the English courts - both superior and inferior courts - on the nature, scope and content of a claim for a declaratory order made under Order 25, Rule 5, on the measure of usefulness of such an order, and on the duty of care cast upon the courts before granting such an order.

 

            In the Grand Junction Waterworks Co. v. Hampton Urban District  Council (42), Stirling J. said (at pp. 345, 346) :

           

            "...When the court is simply asked to make a declaration of right, without giving any consequential relief, the court ought to be extremely cautious in making such a declaration, and ought not to do it in the absence of any very special circumstances."

           

            And in Dyson v. Attorney-General (43), Cozens-Hardy M.R. said (at p. 417):

           

            "The Court is not bound to make a mere declaratory judgment, and in the exercise of its discretion will have regard to all the circumstances of the case. I can, however, conceive many cases in which a declaratory judgment may be highly convenient..."

           

            And in Burghes v. Attorney-General (44), Warrington J. said (at p. 156) :

           

            "But the jurisdiction (to give a judgment declaratory of rights under Order 25, Rule 5) is discretionary, and should be exercised with great care and after due regard to all the circumstances of the case."

 

            A judgment more to the point in regard to the restrictions imposed upon the Court in considering the issue of a declaratory judgment, was given by Bankes L.J. in the leading case of Guaranty Trust (31), which we have already mentioned. In that case the learned Lord Justice said (at p. 572):

           

            "There is, however, one limitation which must always be attached to it (the relief claimed), that is to say, the relief claimed must be something which it would be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction. Subject to that limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief ..."

 

            In Russian Commercial Bank v. British Bank (45), Lord Dunedin, in delivering one of the majority decisions, after praising the correctness of the test applied by the Courts of Scotland when requested to give an order declaratory of rights, said:

 

            "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it ; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought."

 

            And Lord Wrenbury, expressing a dissenting opinion in the same case, said (at p. 461) :

           

"...the authorities are numerous that the discretion of the Court to make a declaration..... is to be most carefully and jealously exercised. The present case is so extreme that if the discretion is to be exercised in favour of entertaining an action for a declaration without relief in this case, I cannot at the moment picture any state of facts in which the court might not exercise its discretion in that direction ...."

 

In Gray v. Spyer (46), Lord Sterndale M.R. said (at p. 27) that

 

            ".... claims for declaration should be carefully watched. Properly used they are very useful ; improperly used, they almost amount to a nuisance."

           

In Thomas v. Attorney-General (47), Farwell J. said (at p. 313) :

 

            "That power given to the court to make declaratory judgments is purely discretionary and the court is not bound to entertain such an application except in a proper case."

           

            And finally, in Har-Shefi v. Har-Shefi (48), Singleton, L.J said (at p. 786):

           

"... any such claim (for the giving of a declaration) will be carefully watched. The Court will not grant a declaration in the air."

 

24.       The courts of this country have in general followed English precedent, and have defined the power to grant an order declaring rights in the light of the interpretations given to Rule 5 of Order 25 by the English courts. I shall cite, for example, the opinion of Windham J. , as quoted in Nathaniel v. Cohen (10), a judgment which was overruled on appeal on another point. And this is what Windham J. said (at p. 697 ibid.):

 

            " ... the court will with the greatest caution and reluctance give a declaratory judgment in vacuo where no consequential relief is prayed for and where at the same time, such consequential relief ... lies within the exclusive jurisdiction of some other tribunal."

           

            The same applies to Levin v. Local Council, Ramat Gan (15), in which Judge Kassan said, at p. 298, that:

           

"It has already been held by the court... nor is the point in dispute - that the court is entitled, by virtue of Rule 52(a) (sic.) of the Civil Procedure Rules, 1938, to issue a declaratory judgment even if it is not asked to grant relief ancillary to the main relief sought... but the question whether or not a declaratory judgment should be given is one within the discretion of the court, which is required to act with the utmost care and circumspection."

 

25. To sum up then, the position may be stated very shortly in these terms: The court will not as a rule refuse to give a declaratory judgment where there exists a dispute between the parties and one of them seeks advice and guidance in regard to his legal rights so that he may know which path to follow, even though he does not at the same time also seek relief which is ancillary to such a declaration. The court, however, will examine an application of this kind with the closest scrutiny, and will not grant the application save after having weighed all the circumstances of the case - only then will it decide in favour of the plaintiff.

 

26. No general principles have been laid down in the decided cases under which the court is to weigh the circumstances of the case brought before it. In any event, the investigation of such principles has not been exhausted, and it would seem that each case is to be decided according to its own particular facts. We have already seen the test suggested by Lord Dunedin in the Russian Commercial Bank case (45). This test was adopted by Bourke J. in Ossorguine's case (14). As against this, we find that different and additional considerations have been relied upon in other judgments. I shall not deal with them all, but with only a number of them.

 

In Roesin v. Attorney-General (49), it was held that a foreign national who resided in England, and had received no notice from the authorities of their intention to discriminate against him in regard to his duty of military service, in favour of other foreign nationals residing temporarily in England, was abusing the power of the court in applying for an order declaring that he was a national of a particular state.

           

            In the Grand Junction Waterworks case (42), which has already been referred to above, it was held that where an alternative remedy exists, a declaratory judgment will not be given. This principle was also laid down in the Municipal Council of Jerusalem case (9), and was even extended to some extent in that case (see p. 510).

           

27. I have not found any judgment which deals directly with the question whether the behaviour of the applicant for a declaration - that is to say, his behaviour before he came to court, whether his hands were clean, whether his conscience was clear, and so forth - is one of the circumstances which the court is required to weigh in dealing with the application. However, even though I have found no proof of this, I have found a reference to this question. It appears from Nathaniel's case (10), that the Appeal Court, in confirming the decision of the lower court to dismiss the application for a declaratory  order, did not disregard the behaviour of the applicant for such an order (see, particularly, the dicta on p. 320). And in an American case (see Harril v. American Home Mortgage Co. (5)), it was held that a mortgagor was not entitled to an order declaring promissory notes and the trust deed void, "without doing equity by repaying or offering to repay money borrowed on the security thereof."

 

28. It is not surprising that the courts have not been required to lay down a principle in connection with this serious question, for what kind of applicant turns to the court for a declaration ? I would say that the usual applicants are persons who, by reason of negotiations which they have conducted with others in good faith, are puzzled as to their rights. They ask themselves what, indeed, are the obligations into which they have entered and to what rights they are entitled from the other party. Against them stand litigants who submit legal submissions to deprive them of their rights. The doors of the courts are open before applicants such as these, subject to the restrictions which we have seen above. It is very rare that persons will knowingly - and, I would say, deliberately - place themselves in a position of embarrassment and thereafter approach the court and request an order declaring their rights and their legal status. It may be that this is the reason for the dearth of judgments on this point. It is my feeling, however - and I cannot rid myself of this impression - that the court, in considering all the circumstances of the case before it, particularly as we are dealing with relief which originated in the Courts of Equity, cannot, and should not, disregard the behaviour of an applicant and the background of his actions which, he submits, have created the rights in respect of which he seeks an authoritative declaration from the court.

 

29. How did the appellants behave? The facts are clear, and there is no need to relate them again except in a very abbreviated form. The first appellant is a man of priestly family - or a person in respect of whom there is a doubt whether or not he is of such a family - and the second appellant is a divorced woman. The first appellant proposed marriage to the second appellant, who agreed. No Rabbi, however, could be found in Israel who was prepared to perform the ceremony of marriage according to Jewish religious rites, by reason of the Biblical prohibition (Leviticus XXI, 7) "..... neither shall he take a woman put away from her husband". The parties then approached the advocate, David Ganor, who represents them and who has submitted his contentions on their behalf in these proceedings. He conducted an "unofficial" wedding ceremony for the appellants in his office, in the presence of only two witnesses who had been specially invited for the occasion, and in the presence of two constables who came as uninvited guests in order to warn those participating in the marriage farce that their action was illegal. All those present knew, of course, that the celebration was irregular, and had not been performed in accordance with the usual and accepted manner between bride and groom. Mr. Ganor, however, who described himself as one who has completed courses in an 'Academy, and studied the Talmud, although not the Shulhan Aruh', and who attended lectures on Jewish law by Dr. Eisenstadt for a year at a law school, and who - he added - was in a better position than others, knowing both parties to the marriage, for 'it is impossible to deceive me as those who register marriages at the Rabbinate might be' - this advocate examined the certificates in the hands of the parties, and after having made his findings in regard to their personal status, he performed the ceremony of sanctification and authorised them to live together as husband and wife. It is, of course, no part of our duty to examine the standard of 'knowledge' attained by Mr. Ganor in Jewish law - of the Talmud and the commentators, both the early and the later - nor is the matter of any importance for our present purposes. It is, however, admitted by all that Mr. Ganor knew - and it is to be assumed that he also conveyed this knowledge to his clients, the bride and bridegroom, and also to the witnesses who 'accompanied the bridal pair' - of the prohibition imposed by the Bible on a person of priestly family from marrying a divorced woman, and of the rules of marriage made by the Rabbis of Israel, in accordance with which - as was held by the learned judge:-

 

"It is forbidden (a) to perform a sanctification of a betrothal except when there is a marriage canopy, in the presence of ten witnesses, and after the registration of the marriage in the offices of the Rabbinate ; (b) to celebrate a sanctification save by those who are authorised and appointed for that purpose by the Chief Rabbinate of Israel, local officers of the Rabbinate, and officers of the Chief Rabbinate in each city and large town; (c) to rely upon any evidence of a marriage which has not been performed in accordance with this rule."

 

As is well known, these restrictions are strengthened by the Ban which is imposed on any person who infringes them. I do not intend to investigate here the validity of the marriage which was celebrated in breach of these rules, or the penalty which follows such infringement. What interests me here is the intrinsic meaning of the Regulations of the Rabbis of Israel in general, and of these marriage regulations in particular.

 

30. The various rules framed by the spiritual leaders of the Jewish people during the long period of its exile were designed to regulate, by means of the imposition of an internal independent discipline, the conduct of Jewish communities, to uphold their spiritual and moral level, to define the right of the individual and the community, to fix the relationship between man and his neighbour, and to lead to the increase of religion and wisdom in Israel. One of the earliest series of rules was intended to regulate married life and was designed to build a fence around and to prevent any breaches in the wall of the Jewish family. These rules in regard to marriage, which were dictated by the needs of the place and time, were framed primarily to prevent clandestine sanctifications, sanctifications of persons kidnapped, sanctifications which would bring the institution into contempt, sanctifications contrived as a result of cunning, sanctifications entered into by compulsion, and other sanctifications and marriages which were opposed to the morals of Judaism and the customs of the Jewish people. They were designed to impose, and they did in fact impose, the rule of the home over Jewish communities in the lands of their dispersion, and to impose community rule upon the individual. By reason of the special circumstances in which diaspora Jews found themselves, the sanction for these rules was the punishment which could be imposed, namely, the Ban, which involved not only the exclusion of the wrongdoer from the communal group, but also his excommunication and treatment as an outlaw.

 

31. It is not disputed that in our times, and in the Jewish State, matters such as these demand an approach consistent with the existence of a sovereign state, and the elimination from our renewed life of the institutions of the exile. Until, however, such matters are regulated by the State, it would seem that in some areas of activity - and in particular in the area of personal status - the vital need today, even in this country, for a number of rules which, in their time and place, fulilled so vital a function in the life of the Jewish communities of the exile, has not yet completely disappeared. My colleague, Silberg J., with great erudition, has dealt at length with the 'Jerusalem Ban' - which was relied upon by the learned judge in the Court below - and cited both early and late authorities in support of his observations. I do not wish to repeat the details of that Ban, which is similar to rules acted upon previously by our people, in exile and in the Land of Israel itself. Special interest attaches, however, to the introductory words to that Ban, and to the rules for the enforcement of which it was introduced. The introduction provides as follows: -

 

"Because of the Ingathering of the Exiles from all the places of their dispersion, and from the ends of the earth, and far-away isles, who are coming up in their thousands and tens of thousands, and are settling in the Holy Land through the great loving-kindness of the Holy One, and are bringing with them their former customs which are not in accordance with the rulings of the sages of the Land of Israel in the Holy City of Jerusalem, and those of the Rabbis of the communities of Israel in Matters of sanctification, divorce, levirate marriage, and this is liable to lead to differences of opinion in Israel and to disturb the peace of the House of Israel; for this reason we have regarded it as our duty to re-enact the rules issued by our former Rabbis, and to add further similar rules which are demanded by the times for the sake of ensuring the peace of the community - rules which are of fundamental importance in regard to all the rules of our former Rabbis for their communities from the days of Moses until later generations.

 

This follows the customary invocation of the help of God and the expression of deference to the great sages of bygone ages, and the consent obtained for the Ban by all the great rabbinical authorities then living in Jerusalem."

           

            This Ban and these rules were designed, therefore, to build a fence 1⁾ and so prevent licentiousness in Jewish family life, and thus preserve stable relationships, a high moral level, and the purity of ethical standards in this fundamental institution of human society. The fact that such regulations have not lost their meaning may be seen from the facts of Banin v. Banin (11). That case dealt with a man who sanctified a woman against her will, and not in the presence of ten persons, and so forth. The matter came before the Rabbis, who annulled the sanctification. This shows that demoralization still exists, threatening the stability of the family and the status of the Jewish woman. The regulations were designed to build a fence against such lawlessness. What did the appellants do in this case?! What did the lawyer do who guided them by his advice and acts? They impudently disregarded accepted rules, and were impervious to the purpose which those rules were designed to achieve.

 

32. Nor is this all. In the time of the Mandate the authorities in this country recognised the urgent communal need of centralising in one legal body matters relating to the marriage and divorce of the residents of the country, in order that there should be continuous and effective control over such matters. This is proved by the Marriage and Divorce (Registration) Ordinance ( Drayton, Vol. 2, Chap. 88), which laid down detailed and express directions for the registration of marriages and divorces, and special instructions for giving effect to those directions. And in order to prevent unbridled licence in such matters, it was held by this court in the time of the Mandate (see Rokach v. District Commissioner (12)) that the authorities were not obliged to supply forms of certificates for the registration of marriages and divorces to a Rabbi who was not authorised as a registering authority by the competent religious institutions of the Jewish community. The effect of this ruling is that not even every Rabbi in Israel is empowered by the law of the country to celebrate sanctifications. A couple, therefore, who approach a rabbi who is not entitled to register marriages according to law, to celebrate a marriage between them, does so in vain. In that case Frumkin J. said, at p. 201:

 

"... One cannot overlook the danger of upholding the contention of the respondents, both from the point of view of public policy, as well as of the preservation of the traditional purity of Jewish family life ... The main object of the Ordinance would then be defeated and the purpose of keeping the celebration of marriage and divorce within the framework of law and good order undermined."

           

33. It would perhaps not be superfluous to review here, shortly, the attitude taken by the Supreme Court in the time of the Mandate to the question of the validity of marriages of the type with which we are now dealing, though I myself am not prepared to decide the appeal on this point in view of my attitude on the other questions which have arisen. The opinion of the Supreme Court in the time of the Mandate was expressed on a number of occasions by Frumkin J.,and the same conception is found in all his judgments on this question as a central theme. In Banin's case (11), Frumkin J. said, at p. 562:

 

            "We personally feel some doubts as to the validity in law of the second marriage. According to the evidence of the woman, who is supposed to be the second wife of the Respondent, she was not married to the Respondent by marriage contract, but by a marriage ceremony (Kiddushin) in the presence of two witnesses. In the case of HefziBah v. Ibrahim Mizrahi, the Rabbinical Court of Appeal of Palestine has declared invalid Kiddushin not effected before a representative of the Rabbinate and not in the presence of a congregation of ten, and not accompanied by a deed of writing."

 

            In another judgment, (see ,Silberstein v. Constable in Charge of Police Lock-up (13), Frumkin J. said, at p. 17 :

 

            "The effective part of the solemnisation of a marriage ceremony under Jewish law is that the bridegroom puts a ring on the finger of the bride saying : 'You are hereby sanctified to me under the Law of Moses and Israel'. Under strict Religious law the mere handing over of the ring or a coin to the bride followed by the said phrase is sufficient to establish a binding marriage between the parties; but in practice this is not the common form of marriage. It is only a part - as I have said, the effective part - of the ceremony which should be 1⁾ celebrated by a religious minister in the presence of a congregation of at least ten males and is accompanied by a written deed of marriage, called 'Ketuba'.

 

            Again in another judgment, Stark v. Chief Execution Officer (6), Frumkin J. said, at p. 279 :

           

"On more than one occasion I expressed my distaste  for forms of marriage like this and I have a very strong view that semi-marriages of that sort, if I may so call it, should be discouraged, but if under Jewish law some sort of a tie is established between a couple undergoing such a formality, a dispute arising out of or in connection with it must be left for the Rabbinical Court to decide.However strange it might seem that there might be a marriage which is yet incomplete such a thing apparently exists in the Jewish law and just as parties are allowed to sue for certain rights under a defective agreement, there is no reason why a party should not be allowed to sue for certain rights under an incomplete marriage."

 

            In these cases a civil court was not asked to give a declaration of rights, and the question of validity of the marriage only arose incidentally in an application for the giving of actual relief of another kind. The court, however, whenever it found it possible to do so, did not fail to express its contempt for marriages performed in this way, and to voice serious doubts as to the validity of such marriages.

           

34. In short, we are not dealing with the case of a man who came to this country from overseas bringing his wife with him, or who sanctified a woman here according to Jewish rites in good faith and in a manner in which such a ceremony is performed in his own country, and who seeks a declaration of rights, that is to say, in more usual terms - who seeks legal confirmation of his marriage. We are dealing with people who knew the position, and intended to circumvent it. They did not genuinely believe that their sanctification had been performed in accordance with religious rites and in accordance with law. On the contrary, they knew that - at least from a formal point of view - the sanctification had been performed in defiance of the rites of the law. They ask us for a judgment declaring their rights according to Jewish law, when they themselves have impudently paid no regard to Jewish law and the rules promulgated by those having authority in the very matter from which, as they submit, their rights flow. They claim rights emanating from their own wrongdoing. The matter may be compared with one who offends the law as did Zimri and asks to receive the reward of Phineas 1). And Phineas, let it be added, was also of priestly family. Is this a case in which the court should help those who seek its assistance and exercise its discretion in their favour ? Is it conceivable, for example, that a man who married a minor in contravention of the Marriage Age Law, 1950, could petition a civil court and seek a declaration that the marriage was valid according to Jewish law ? And if he were to seek such relief - is it conceivable that the court would accede to his request although his submission be sound from the purely legal point of view? This would be an abuse of the process of the court and not a means of exercising its jurisdiction. In my opinion the court is not bound to assist lawbreakers and should prevent a wrongdoer from reaping the benefits of his wrong.

 

35. As I have said, I have found no direct authority for the conclusion which I have reached. I cannot help feeling, however, that from the point of view of equity, and from the point of view of "the accepted principles according to which the court uses its powers" - according to the true test as laid down by Bankes L.J. in the Guaranty Trust case (31) - this is a case in which the court is not bound to exercise its discretion in favour of the appellants. My colleague, Silberg J. has reached the opposite conclusion, but he too did not do so without much reluctance. This is what he says : -

 

            "I have arrived at this conclusion with considerable reluctance. I frankly admit that my inclination, as a judge and as a man, has been, from beginning to end, not to give official sanction to that private ceremony. Nobody will approve of marriage ceremonies like this, and no judge will feel sympathetic towards applications like the present."

           

My learned colleague states, at the conclusion of his remarks: -

 

            "In short: I have reviewed every aspect of the case, and I have found no ground for the annulment of the sanctification."

           

            With all respect and regard for the views of my colleague, the court has not been asked to annul the sanctification, but to declare its validity - that is to say, to give it legal confirmation. As is well known, the distance is wide indeed between a prayer for annulment and one for a declaration of validity.

           

            Neither in the South African case of Martens v. Martens (51), which is mentioned at the conclusion of the judgment of Silberg J., nor in the English case of H. v. H. (34), which quotes the South African case with approval, was the question considered of the right of the 'deceivers', the 'fictitious' husband and wife, to appear before the court and to ask with supreme effrontery for a declaration by the court that their marriage was celebrated in accordance with religion and law. The question of the marriage, although it was of importance in those cases, arose only incidentally in connection with the question of the granting of other vital relief. Those cases, therefore, are of no assistance in the present appeal.

 

            As far as the attitude of the lower court is concerned, it is sufficient to read the judgment of the learned judge to see that were it not for the fact that he held the sanctification itself to be invalid, he too would not have exercised his discretion in favour of the appellants.

           

            My colleague, Sussman J., also expresses his dissatisfaction at the 'act of lawlessness' in the celebration of the secret sanctification, and he suggests his own solution to the whole problem. But does not common sense demand that, in the light of this dissatisfaction, the court should not confirm the 'act of lawlessness' and give it official sanction ?

           

36. In conclusion I wish to make two short observations. In the first place, the appellants are not altogether without remedy. They are entitled even now to submit their application to the Rabbinical Court. That court is competent to deal with their prayer, and we have seen that it has already recognised the sanctification of a member of a priestly family to a divorcee. Moreover, in accordance with what was held in A. v. B. (22),

 

            "Any person interested is entitled to request the Rabbinical Court to define his personal status. The considerations which are taken into account by a civil court are not conclusive in the Rabbinical Court."

           

            My second observation is this. It cannot be said that the present case is an isolated one or the last of its kind, and that the civil courts will not be asked in the future to decide similar matters. We were told in the course of the proceedings that a judgment was given not long ago on the question of the validity of a secret marriage between a member of a priestly family and a divorcee, and that the judges of the District Court were divided in their opinions. It is true that the Marriage and Divorce Law referred to has introduced a radical change in the procedure to be followed in matters of personal status, and that the great majority of these questions will be considered in future by the Rabbinical Court. That law, however, only applies to residents and nationals, and if a declaration were to be given by this court in the present case, a vast number of foreign nationals and residents, in a position similar to that of the appellants, will bring their wives who were previously divorced to this country from overseas, or will marry divorcees in this country secretly, and will then approach the courts of this country for legal confirmation of their acts. The courts of this country will thus be turned into a clearing house to which all doubtful sanctifications and all void sanctifications of the persons described will be brought for confirmation and validation. In my opinion, this must be prevented at all costs.

 

            In view of what I have said, I would dismiss the appeal.

           

            It is therefore decided by a majority to allow the appeal, to set aside the judgment of the court below, and to declare that on December 16, 1962, at Tel Aviv, the first appellant Aharon Cohen, sanctified the second appellant, Bella Bousslik, by a Jewish ceremony of sanctification and that by virtue of that sanctification they are to be regarded as husband and wife as from the above date.

           

            Appeal allowed.

            Judgment given on January 15, 1954.

 

In the Supreme Court

 

Crim.App. 8225/12

MCA (Criminal) 8239/12

 

Before:                        Her Honor Justice E. Hayut

                        His Honor Justice U. Vogelman

                        His Honor Justice Y. Amit

 

The Appellants in Crim.App. 8225/12

 

                                    1.         Jane Doe Co. Ltd

                                    2.         Jane Doe

 

The Applicant in MCA (Criminal) 8239/12

 

                                    Jane Doe (a minor)

 

                                    versus

 

The Respondents:

 

                                    1.         John Doe

                                    2.         The State of Israel

 

                                    Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

 

Date of session:           25th Tevet 5773; January 7, 2013

 

                                    Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

                                    on behalf of the Appellants in Crim.App. 8225/12

 

                                    Adv. Shira Dorfman-Algai

                                    on behalf of the Applicant in MCA (Criminal) 8239/12

 

                                    Adv. Avi Vacnich; Adv. Uri Shenhar

                                    on behalf of the First Respondent

 

                                    Adv. Itamar Gelbfish

                                    on behalf of the Second Respondent

 

 

Judgment

 

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is  de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after  a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate. 

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary. 

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration. 

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal)  5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . .  including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration. 

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest. 

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including   blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.  

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed,  the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

 

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.  

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

 

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that  exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

 

___________________

 

Decided in accordance with the judgment of Justice U. Vogelman.

 

Given today, February 24, 2013.

 

 

In the Supreme Court

Sitting as a High Court of Justice

 

HCJ 4146/11

 

Before:	Her Honor, Judge E. Arbel
	His Honor, Judge H. Melcer
	His Honor, Judge Y. Danziger
The Petitioners:	Yoav Hess + 116 other Petitioners
v.
The Respondent:	The Chief of General Staff
Petition for the grant of an order nisi
Date of session:	Sivan 4, 5773 (May 13, 2013)
On Behalf of the Petitioners:	Adv. M. Sfard,  Adv. E. Schaeffer
On Behalf of the Respondent:	Adv. Y. Roitman

 

Judgment

 

Judge E. Arbel:

1.In the petition before us, the petitioners petition the Court to order the introduction of a military command prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and is capable of achieving an equal or similar military advantage.

2.The need for the petition arose, according to the petitioners, following the extensive and unethical use, according to them, of weapons containing white phosphorus by the IDF during Operation Cast Lead (December 2008 – January 2009). According to them, during the operation many bombs containing phosphorus were dropped, and by the nature of things, because the [Gaza] Strip is densely populated with civilians, the result was extensive injury to civilians, some of whom were injured when the bombs were dropped and some much later, when the incendiary effect of the phosphorus was still active. According to them, the use of phosphorus endangered the lives of civilians, humanitarian employees and medical personnel. The petitioners argue that this is a substance which has potential for serious injuries to those who come into contact with it, and that its harmful effect lasts long after it is launched. The use thereof, it is argued, by its nature does not enable distinction between military and civilian targets, and thus even when it is aimed at legitimate targets, it might ultimately injure civilians. The petitioners’ main legal argument is that the use of white phosphorus constitutes a violation of the international law.

3.The respondent argues that the petition is of a type that the Court does not usually consider, as it deals with the weapons to be used by the IDF. The respondent also claims that there is no impediment under the law of armed conflict to using artillery shells containing white phosphorus for camouflage purposes only, including in urban warfare. The respondent emphasized that on the professional orders of the chief artillery officer, the use made of the “white smoke” shell is for camouflage purposes only. The State’s attorney, in the hearing before us, also gave notice that at this time the IDF has decided, even though it is not legally required, not to use shells containing white phosphorus in a built-up area, subject to two limited exceptions. The exceptions were presented to us in camera.

4.I will note that the petitioners motioned for the filing of expert opinions regarding the repercussions of the use of white phosphorus in a built-up area. The respondent objected to the motion and argued, inter alia, that the expertise of the opinion’s authors in the architecture field is not relevant to deciding  the question of the legality, in principle, of arms containing white phosphorus, from the legal and factual aspects. In light of our decision, as detailed below, we see no reason to allow the motion to file the opinion. Nonetheless, if the issue arises again in the future, there might be room to delve into it, and it will then be possible to consider the disagreement between the parties with regard to the relevancy of the expertise of the opinion’ authors to the questions under discussion.

Discussion

5.The first issue that must be addressed concerns the justiciability of the issue before us. While the respondent argues that this issue is not justiciable and is one that the Court does not usually consider, the petitioners claim that nowadays there is no doubt that the war is subject to laws and that the laws are subject to judicial interpretation. On this I must agree with the petitioners, within the boundaries of the restraint that this Court has imposed on itself of course, especially with regard to quintessential military matters. I will explain.

As is known, the choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of these or other weapons arise the Court will refuse to consider the matter. Clearly, where arguments arise regarding the use of weapons in a manner that contradicts the law of armed conflict, the Court will have to “enter the battlefield” and consider the arguments raised before it. The boundaries of this Court’s intervention in matters of this kind are extremely limited, but it is reserved and occurs in exceptional and special cases where there is concern of injury to established legal norms. This Court intervenes at times in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect (see HCJ 3261/06, Physicians for Human Rights vs. The Ministry of Defense (January 31, 2011) (hereinafter: “in re Physicians for Human Rights”); HCJ 769/02, The Public Committee against Torture in Israel vs. The Government of Israel, IsrSC 62 (1) 507, paragraph 52 of the judgment of President Barak (2006)), and in the words of President Barak:

            “ ‘Israel is not a desert island. It is part of the international formation’ … the Army’s warfare operations do not take place in a legal vacuum. There are legal norms – some from the customary international law, some from the international law that is anchored in conventions to which Israel is a party, and some from the basic rules of the Israeli law – that determine rules regarding warfare management” (HCJ 4764/04, Doctors for Human Rights vs. The Commander of the IDF Forces in Gaza, HCJ 58 (5) 385, 391 (2004)).”

President Beinish has also referred to the matter:

            “We have not said and are still not saying that determining the legality of the IDF’s acts vis-à-vis the residents of the area is not at all subject to judicial review, and on various occasions we have rejected the sweeping argument that these acts are not justiciable. Accordingly, this Court has, on many occasions in the past, been required to consider matters that in certain ways touch upon professional-operational aspects, at times related to acts of warfare, where they gave rise to legal questions concerning the Army’s powers during warfare – in accordance with the law of armed conflict – and the limitations imposed on it by the international humanitarian law” (in re Physicians for Human Rights, paragraph 10).”

6.In order to maintain the balance between the restraint required in this Court’s intervention in quintessential military matters and the operational and professional discretion of the Army Command, and the need to protect and safeguard human rights and honor the international law, we believe that a multi-stage review is required in petitions of this kind. First of all, it is necessary to consider whether the petitions, ex facie, raise arguments of a legal nature that allow the Court to consider them, without such consideration amounting to intervention in the quintessential professional discretion of the military entities. A negative answer will result in the petition’s summary dismissal. A positive answer will require another prima facie review of the basis for the petition, and if it justifies, ex facie, a more in-depth review of the violation of the military means or military course of action of the law of armed conflict or the basic principles of Israeli law. At this stage, it is also necessary to consider the practical implications of the petition. There is no room for a more in-depth examination by the Court where the use of the weapons that are the subject of the petition has been ceased on Army orders. If there are still orders permitting the use, and there is a prima facie basis substantiating any legal injury, there is room for the Court to proceed to the third stage, which involves an in-depth review of the arguments raised, and obtaining extensive answers to these arguments on behalf of the State. At this stage, the Court will examine the legal and factual arguments of the petitioners on their merits, and a determination will be made with regard to the legality of the use of the weapons which are the subject of the petition.

7.The petition before us raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus. From the petition it emerges that this is a substance that might cause serious injuries to human beings, and that there are humanitarian, ethical and legal difficulties in its use in a built-up area, since it is not possible to distinguish between military and civil targets in the course of its use. These arguments, ex facie, oblige another in-depth examination. The arguments raised by the petitioners are of a dominant legal nature. Accordingly, these arguments justify proceeding to the second stage of review required by the Court. However, at this stage we believe that we must stop the judicial review, in light of the State’s declarations regarding the binding orders imposed on the Army with regard to the use of white phosphorus in a built-up area at this time. As aforesaid, the State’s attorney declared that it has been decided not to allow the use of shells containing white phosphorus in a built-up area. Although we were presented with two exceptions to this order, we were persuaded that these exceptions are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. In these circumstances, we believe that there is no room to continue reviewing the matter beyond that. Of course, if the Army’s orders change in the future it will be possible to petition this Court again.

8.It should be emphasized that we have not overlooked the position of the petitioners’ attorney that the orders to limit the use do not resolve the matter. Nonetheless, even the petitioners’ attorney stated that the central difficulties in the current state of affairs are that the respondent has not undertaken that the orders are final, and that the nature of the exceptions are unknown to him. With regard to the nature of the exceptions, as has been noted, they were presented to us with the consent of the petitioners’ attorney “in camera,” and we were persuaded that these exceptions make the use of white phosphorus an extreme exception in the most unique circumstances. With regard to the concern regarding a change in the Army’s orders in such regard, I have two comments. Firstly, since the State has not declared before us that the orders are permanent orders that prohibit the use of the substance, in the current circumstances the IDF should engage in a comprehensive and in-depth review of the use of white phosphorus in the Army, and of its risks and harms, and primarily, it should review the possible alternatives for the use of this substance. Such a review will serve either to make the current orders permanent or to substantiate a position justifying a change in the orders. In any event, it would not be suitable to wait to review the matter in an emergency. Secondly, the State should notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before this Court. 

 

Subject to the aforesaid, the petition is dismissed without an order for costs.

Given today, July 9, 2013.

 

___________________	___________________	___________________
Judge	Judge	Judge

 

 

                                                                                    AAA 3782/12

 

The Appellants	1. Tel-Aviv Jaffa District Commander – Israel Police 2. Central District Commander – Israel Police 3. Israel Police
	v.
The Respondent	The Israel Internet Association
The Formal Respondents	1.      012 Smile Telecom Ltd. (pro forma) 2.      018 Xphone Ltd. (pro forma) 3.      Bezeq International Ltd. (pro forma) 4.      013 Netvision Barak Ltd. (pro forma)

 

In the Supreme Court sitting as the Court of Appeals in Administrative Matters

[24.3.2013]

Before: President A. Grunis, Justices E.Vogelman, N. Sohlberg

 

Appeal against decision of the Tel-Aviv- Jaffa District Court of 2 April 2012 in Case AAF 45505-10-10 handed down by Deputy President Hon. Judge Michal Rubinstein

 

Facts: In August 2010, the Israel Police ordered major Israeli Internet access providers to block access to eight gambling websites operating outside the State of Israel. The orders were based on section 229 of the Penal Law that permits the District Police Commander to order the closure of any illegal gaming, lottery, or gambling place. The access providers complied with the orders and the Israel Internet Association petitioned the Administrative Affairs Court against the District Commander, contesting the closure, in the interests of Israeli web-users and the general public. The Internet access providers did not petition against the closure of access to the gambling websites. On April 2, 2012 the Administrative Affairs Court (per Judge Michal Rubinstein) granted the petition, holding that the police had no authority to order Internet service providers to block access to gambling websites. 

 

In granting the petition, the Administrative Affairs Court ruled that the Israel Internet Association had an independent right of standing, given the important public interest in enforcing constitutional values and maintaing the rule of law, notwithstanding that no petition was filed by access providers themselves. Furthermore, the closure of Internet websites violated freedom of expression. Even if the content curtailed was of little social utility, websites closure can only be done with legal authority. Primarily the provision in the Penal Law allowed the closure of a physical “place” and did not include the closure of an Internet website. In this context no analogy can be drawn from the closure of prohibited physical places to the closure of prohibited websites, notwithstanding their similar purposes, because the potential for violating freedom of expression and freedom of occupation, and because blocking access to the Internet poses technical, political and legal difficulties, including the possibility of blocking legitimate websites and innocent users. Blocks by third parties – the access providers – also raises questions relating to liability, the manner of blocking and its costs. In view of all these factors the petition was granted.

An appeal was filed against the decision in the Supreme Court.

 

Held:

Regarding freedom of expression, the Supreme Court agreed unanimously that the content blocked on the gambling websites is limited in this case and hence the violation of free speech that resulted from blocking lawful content on gambling websites is of limited degree and lawful. Moreover, the primary infringement here relates to the website operators’ freedom of occupation. In this regard, the case law has already held that the infringement of freedom of occupation, the infringement satisfies the constitutional tests.

 

With respect to the concern that protected information on websites would be blocked, the Court noted that website owners can make such information available on alternative websites, or even on the same website while blocking only prohibited gambling.

 

Regarding standing, Justice Vogelman ruled that the Internet Association satisfies the conditions for recognizing a public petitioner, given that it seeks to promote the public interest of Internet users, an interest shared by the general public, or significant parts thereof, rather than protect its own special interest. Given this case presents a first attempt to define the boundaries of the district police commander’s authority under section 229 of the Criminal Law to block access to Internet gambling websites, the question is a fundamental one that justifies hearing through public petition. As to the sufficiency of the factual infrastructure, had the Appellants felt that any issue was not sufficiently clarified, they could have acted to remedy the situation. Moreover, the public petitioner is required to present the factual infrastructure sufficient for the proceeding. In the current case the factual infrastructure was indeed sufficient for purposes of judicial review.

 

The dispute and the result involved two basic issues: first, whether the language of the Penal Law authorizing police to close a “place” can and should be interpreted broadly to include a virtual Internet website, which is not a physical place, without a specific legislative amendment. The second and more important question was whether the police can and should be permitted to exercise their authority of closure with respect to a website by way of a third party, namely the access providers. 

Justice Vogelman (for the majority, with concurrence by President Grunis), wrote that a gambling website may be viewed as a “place,” and its blocking can also be viewed as its “closing” within the meaning of section 229(A)(1). Additionally, an online gambling site may be considered a “prohibited gaming venue,” under a purposive interpretation of the Criminal Law’s relevant provisions and in the context of time and advancing technology, which render section 229 of the Criminal Law applicable in the “virtual” world. Nonetheless, the main obstacle to such interpretation is the lack of express authority to order private third parties – access providers – to assist in implementing the authority to block websites. According to Justice Vogelman, when the law empowers a governmental agency, it is assumed that the legislature intended that agency, and not another, would implement that authority, and that the agency may act only within the boundaries of the authorizing law. Even if the authorization to close a place can be interpreted as authorizing closing websites, it is not identical to authorizing third parties to block access to websites.

 

This is consistent with the principle of administrative legality which only permits an agency to act within legislation that empowers governmental agencies to order third parties to assist in exercising that agency’s authority. Such authority is not even implied in the Penal law’s provision concerning police authority to order the closing of a place.  Absent explicit statutory source, it is impermissible to compel a person or private entity to act for the authorities. Hence the orders to access providers here violated the principle of administrative legality. The current statutory framework is insufficient because it lacks authorization to order a third party to assist enforcement agencies in exercising their powers.

Even though the rule is that the authority is permitted to receive assistance from private persons or entities as far as the technical aspects of fulfilling their task, there is also an interpretative presumption against delegating authority to private entities and in the absence of appropriate legislative framework, enforcement authority cannot be granted to those not part of the enforcement mechanism

Even if the access providers were not required to exercise discretion, and the police only requested help from them in the exercise of its authority – in the technical act of blocking a website identified through its IP address specified on the order – it is still necessary to prove that the access providers agreed to assist the police. Once the police imposed an obligation upon access providers, it can no longer be considered assistance – hence the need for explicit statutory authorization.

 

Justice N. Sohlberg, writing for the minority, found that as a rule the court will not grant a public petition where there is a private victim in the background who chose not to apply to the court for relief, and that in light of the website owners failure to file an appeal, it is doubtful whether the Internet association has standing. Furthermore, granting standing when the relevant party did not file a petition might mean that the required factual infrastructure would not be presented to the Court. Nonetheless under the circumstances, where the Administrative Court recognized the Internet Association’s standing and ruled on the merits, it would be inappropriate to reject the appeal for of lack of standing without examining the matter on the merits.

 

Regarding the substantive issue, though a specific legislative arrangement would be preferable, the law’s existing language provides a satisfactory solution as to the police authority to issue orders, and waiting for legislative authority frustrates appropriate response in law enforcement and service of justice.

Both in terms of language and purpose the word “space” should be interpreted to also mean virtual space, given that terms that serve in virtual space are borrowed from the tangible world. Accordingly there is no deviation from the principle of legality by finding that “place” also includes virtual space. As the damage wrought by gambling on the Internet is immeasurably greater than that which is caused in physical places and that the legislative purpose was to prevent illegal gambling regardless of its location, a purposive interpretation would and should interpret “place” as meaning virtual space. Accordingly, apart from certain, isolated exceptions, the rule should be that the Internet fits the definition of place.

With respect to the difficulty in using third parties for carrying out a criminal proceeding, the law recognizes the possibility to use a third party to present an object necessary for interrogation or trial. Considering the license the State has granted them, access providers bear public responsibility. It is therefore justified to use them to execute orders to restrict access, given that the order requires the technical acts that do not involve any discretion regarding the closing of a site with a particular IP address specified in the order. Regarding the requirement for third party consent, Justice Sohlberg analogized the status of the website owners to receptionist in a physical place whom the police would have been authorized to require to open.

 

Justice Sohlberg also found that failure to petition against blocking access may be viewed as the website’s owner’s consent to to being used to carry out the police order. Justice Sohlberg based this conclusion on the Talmudic rule of "silence is regarded as admission.”

 

Legislation Cited

Administrative Affairs Court Act, 5760-2000, s. 5 (1)

Basic Law: Human Dignity and Liberty

Civil Procedure Regulations, 5744-1984, reg. 3(a)

Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969, s.20 23

Criminal Procedure (Powers of Enforcement- Communication Data), 5768-2007, s.1, 3 (2)

Interpretation Act 5741-1981, s.17

Penal Law, 5737-1977 s. 224, 228, 229

Police Ordinance [New Version], 5731-1971, s. 3

Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001, s.2

Regulation of Sports: Gambling Act, 5727 – 1967

 

Supreme Court Decisions Cited

[1] HCJ 243/62 Israel Films Studios Ltd v. Levi [1962] IsrSC 16 2407.

 

[2] HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2003] IsrSC 57 (2) 62.

 

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

 

[4] HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior (10.5.04).

 

[5] LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (25.3.10).

 

[6] CA 9183/09 The Football Association Premier League Limited v. Anon (13.5.12).

 

[7]  Cr.A 1439/06 Zaltovski v. State of Israel (28.3.06).

 

[8] CrA. 7430 /10  Anon. State of Israel (5.2.2010).

 

[9] LCrApp 787/79 Mizrahi v. State of Israel [1980] IsrSC 35 (4) 421.

 

[10]  (HCJ 131/85Savizky v. Minster of Finance [1965] IsrSC 19 (2) 369.

 

[11] HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee [2003] IsrSC 57 (2) 62.

 

[12] HCJ 3809/08 Citizens Rights Bureau v. Israel Police (28.5.2012).

 

[13] Association of Renovations Contractors for Restoration v. State of Israel (14.3.2011).

 

[14] HCJ 1/81 Shiran v. Broadcasting Authority [1981], IsrSC 35 (3) 365.

 

[15]  HCJ 910/86 Ressler v. Minister of Defense [1988], IsrSC 42 (2) 441.

 

[16] HCJ 287/91 Kargal Ltd v. Investments Center Council [1992], IsrSc 46 (2) 851,

 

[17] HCJ 962/02 Liran v. Attorney General(1.4.2007).

 

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

[19] HCJ 80/70 Elizur v. Broadcasting Authority [1970],IsrSC 24 (2) 649.

[20] HCJ 852/86 Aloni v. Minister of Justice  [1987], IsrSC 41 (2) 1.

 

[21] HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority  [1994], IsrSC 48(2) 1.

 

[22] HCJ  2303/90 Philipovitz v. Registrar of Companies [1992], IsrSC 46 (1) 410.

 

[23] (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, (19.11.2009).

 

[24]  AAA 6848/10 Erez v. Giva’ataim (30.5.2012).

 

[25] HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority (26.3.2012).

 

[26]CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [1998] IsrSC 52 (3) at 399.  

 

[27]  HCJ 5394/92 Hoppert v ‘Yad Vashem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3)353.

 

[28] 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh (27.6.2011).

 

[29[ HCJ 6824/07 Mana v  Taxation Authority (20.12.2010).

 

[30]  HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [2005] 905.

 

United States Decisions Cited

[[31] Center for Democracy & Technology cy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D Penn. 2004).

 

 

For the Appellants: Advs. Yuval Roitman; Adv.Orli Aharoni

 

For the Respondent: Adv. Haim Ravia, Adv. Dan-Or Hof; Adv. Yossi Markovitz

 

Judgment

 

Justice N. Sohlberg

 

1.         The Israel Police issued orders restricting access to gambling websites on the Internet. The Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs (Judge Michal Rubinstein) granted the petition by the Israeli Internet Association and ruled that the orders were issued ultra vires and should therefore be voided. The Israel Police appealed and requested the orders be resotred.

Background

2.         Crime is burgeoning and taking new forms. As a result, on 1 January 2006 Government Decision No. 4618 was adopted, establishing a Standing Committee for Direction and Coordination of Activity in the Battle Against Severe Crime and Organized Crime and their Offshoots. The Committee determined that because its far-reaching and grave consequences the phenomenon of Internet gambling would be a central enforcement target combining several tools – criminal, fiscal, and administrative. This is a growing crime-generating phenomenon that is accessible to a broad segment of the population. Within this context, with the knowledge of the Attorney General and the State Attorney, the Committee decided to restrict Israeli users’ access to gambling websites. Internet access providers were issued warning letters and given a list of gambling sites and their IP addresses to be blocked. The access providers and the website operators were also allowed the opportunity to object. In August 2010 the orders were issued. In October 2010 the Israel Internet Association petitioned to the Administrative Affairs Court to revoke the orders, and in April 2012 the petition was granted

The Ruling of the District Court

3.         The principle elements of the Administrative Affairs Court’s ruling are:

(a)        Locus Standi: The direct victims – the access providers and the website operators – chose not to exercise their right to petition against the orders. Nonetheless the court found there were grounds for recognizing the locus standi of the Israel Internet Association, given that it does not represent the interests of the access providers and website operators, which have primarily commercial interests, but rather as the representative of users in Israel and their rights to free expression and access to information. This is a matter of general public importance pertaining enforcing constitutional values and maintaining the rule of law. 

(b)        Restricting access to Internet gambling sites infringes freedom of expression: The Internet is an excellent tool for exercising the right to access information in a practical, efficient, cheap and reliable manner. It is a democratic tool that promotes equality, enables a decentralized and diverse discourse, facilitates economic growth, and is an excellent platform for business ventures. Access to information is a constitutional right and limitations on the use of Internet are therefore rare. yet, the Internet is also subject to abuse, to violation of copyright, publication of slander, pornography, encouragement of violence, drug abuse etc. The desire to minimize the harm caused by damaging uses of the Internet has led the authorities of different countries to adopt various means, including blocking access to websites that function as platforms for illegal activity, or use technological screening measures. The Israeli approach has been that freedom of expression is “all encompassing” and applies even to expressions that encourage illegal activity.  Still, freedom of expression is not an absolute right. When there are interests that justify it, such as security, or social, political and other interests, freedom of expression may be curbed. When applying a proportionality test, the balance may vary according to the type of expression and its inherent social value weighed against the benefit of restriction. The content of illegal gambling sites – for example game instructions, various lists, graphics and other audio-visual aides – are, generally speaking, of little social value. The expressions are of a purely commercial nature, encouraging acts restricted under criminal law. Conceivably, limiting access to such expressions may be justified by legitimate purpose. But the mere fact that an expression may be harm does not exclude it from protection. As such, restrictions on free speech, even on expressions with little social value such as those in illegal gambling sites, must pass constitutional muster and be legally authorized.  

(c )       The Police has no authority to order Internet access providers to restrict access to gambling websites.  The relevant sections of the Police Ordinance [New Version], 5731-1971 (“Police Ordinance”), and the Penal Law, 5737-1977 (“Penal Law”), through their language and purpose, authorize the Israel Police to order the closing of places where gambling is takes place, but these are only physical places, as opposed to preventing access to an Internet website. A website is not a “place” but rather an amalgamation of information and applications installed in a computer that communicates with other computers via the Internet. Information is transferred from the computer to the server. The police is authorized to order the closing of a “place” of prohibited games or a “place” where lotteries or gambling are held, but preventing access to a website is not equivalent to the closing of a place, and is not covered by that authorization, neither explicitly nor implicitly. That the law grants the police the power to shut down physical places cannot, in itself, be understood as legislative intention to broaden the authority to allow “censorship” power to the police, without clear guidelines for its exercise. Even if the purpose of the orders – reducing the prevalence of gambling – is identical to that of the authorizing closing down physical gambling places, blocked access to a website implicates freedom of expression and freedom of occupation differently.  Blocking access to the Internet poses technical, political and legal difficulties: the concern for possibly blocking legitimate websites or innocent users. Executing blocks by a third party – the access providers – raises questions of liability, methods for blocking and costs. The appropriate legal policy would be to wait for explicit regulation of restrictions to free expression on the Internet in primary legislation, following in depth public debate. “Acrobatic” interpretations should not be invoked to authorize the police to violate civil rights. Furthermore, over the past few years the legislature has considered proposals for legislative amendments on this issue, but the legislative initiatives were hindered for being insufficiently balanced. The subjective and concrete legislative intention indicates a desire not to authorize the police to block access to gambling websites at its own discretion.

In short, the orders to restrict access to gambling websites were issued ultra vires and should be voided. This was the ruling of the Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs.

Principal Arguments of the Parties

4.         Attorneys for the State argue that the Administrative Affairs Court erred in determining that the Israel Internet Association has standing.  The latter is a public petitioner with no personal interest in the orders, and his petition should therefore have been dismissed in limine, especially given the existence of petitioners who could have presented the factual infrastructure required, yet they ultimately refrained from filing a petition. The petition seeks to permit illegal activity, rather than preserve the rule of law, and there was no justification for conducting a judicial hearing for this kind of petition by a public petitioner. Attorneys for the State further argue that the Administrative Affairs Court erred in holding the orders infringe freedom of expression. The websites subject to the orders do not serve as a venue for expression and their entire raison d’etre is conducting prohibited gambling. There is no justification to fully exempt the Internet from rules that apply to other media. Blocking access to gambling is accepted practice all over the world, and is necessary for crime prevention.

5.         The primary claim the State’s attorneys make is that the police is authorized to order blocking access to websites. The Administrative Affairs Court adopted a “rigid” interpretation that failed to fully account for the law’s language and purpose. The Administrative Affairs Court failed to consider a possible alternative in the authorizing statute. In any case the relevant provision can be seen to include Internet space, as well as physical space: a “place of gambling” is also a “virtual place”. The authority to close a place also encompasses orders to block access to virtual space. The attorney for the State argues that when the law was passed it was impossible to anticipate the existence of virtual space, but the purpose is the same: preventing illegal gambling, which causes immense harm to both the individual and the public. Waiting for primary legislation to explicitly grant parallel authority to virtual space means perpetuating Internet gambling, its grave consequences and its harm, while forcing the police to combat it with hands tied behind its back.

6.         On the other hand, the Israel Internet Association discussed the public interest in Internet access, and as a natural outcome, its right of standing in this petition vis-à-vis its activities to promote Internet use in Israel as a technological, research, educational, social, and business resource. The limited economic interest of website owners and access providers is not comparable to the public interest in having unfettered access to the Internet. This is the purpose of granting standing rights to a public petitioner, thus enabling judicial review in a matter of public and constitutional importance that implicates the rule of law. The Israel Internet Association also emphasized the right to know. “A governing authority which claims the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater paradox to true democracy, which is not ‘guided’ from above” (HCJ 243/62 Israel Films Studios Ltd v. Levi [1] at p. 2416). A website consists of layers of information, each of these a protected expression, including: the code, the graphic design, games, trailers, data and explanations. The suspicion of a criminal offense does not excuse limits on expression in advance.

7.         The Israel Internet Association further claims that the law does not authorize the Police to order a third party to block access to gambling websites. An Internet website is neither a “place”, nor “premises” but rather a collection of “pages” which contain information collected from files on a service computer that communicates with other computers via the Internet (Abraham Tenenbaum “On Metaphors in Computer and Internet Law”, Sha’arei Mishpat 4 (2), 356, 374 (2006)). The analogy between “site” and “place” is fundamentally flawed. Blocking access to knowledge is distinguishable from closing a physical place, inter alia because of the infringement upon freedom of expression. Physical closing does not implicate the rights of the general public. Blocking access to knowledge does. Internet access providers are not enforcement agents of the police. They serve as a channel for providing information to Internet users, and they have an immensely important role in exercising the right to access information.

8.         The Israel Internet Association requests we uphold the Administrative Affairs Court’s decision regarding standing based also on the fact that the consequences of blocking access to a website differ from the consequences of blocking a physical place. Blocking access to websites involves technical challenges that may block access to innocuous sites. Blocking may be ineffective, as well. It may have implications for international obligations, and raise questions about access providers’ liability. Costs are likely to be “rolled” onto users. As a matter of judicial policy, infringements upon freedom of expression and access to information should only done in explicit primary legislation. The Knesset debates around private bills on the matter reflect substantive reservations against conferring the police with the requested powers. Upholding the appeal would turn the police into investigator and prosecutor, judge and executor, while performing interpretive acrobatics and infringing free expression.

Discussion and Ruling

9.         I divide the discussion into three categories, following the path taken by the Administrative Affairs Court:

(a) Standing; (b) Freedom of Expression; (c) Police Authority.

 (a)       Right of Standing

10.       As mentioned, the orders compelled Internet providers to block access to a number of websites used for illegal gambling. The access providers and the website owners chose not to challenge the orders. Prima facie, as claimed by the attorney for the State, the Israel Internet Association is stepping into a dispute in which it has no part. The Administrative Affairs Court deviated from the rule that “the court will generally not grant a public petition where there is a private victim who chose not to turn to the court for relief ” (HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2] at p. 68).  Recognition of standing rights for the Israeli Internet Association prompted the petitions’ adjudication without presenting the Administrative Court with the required factual infrastructure. The precise contents of the websites subject to the orders were not presented, nor was a full description of the technical ability to block access. No basis was presented for the argument – which the Administrative Court found acceptable – that blocking access to gambling sites could also be expected to block other sites.

11.  The Israeli Internet Association further argued before the Administrative Affairs Court that the Internet providers’ right to hearing had been violated. It further argued that the decision to block certain sites was discriminatory. The problem however is that these are not arguments that can be raised by a public petitioner. These are arguments that only the website owners and the access providers could have raised, had they so wished to do so.

12.       It seems that a priori the petition should have been dismissed in limine in the absence of standing. However, post factum, once the Administrative Affairs Court recognized the Israel Internet Association had standing, and ruled as it did on the merits, it seems inappropriate at this stage to uphold the appeal merely based on his issue, without ruling on the merits of the appeal itself. It is incumbent upon us to rule on the legality of the orders.

Freedom of Expression

13.       The attorneys for the parties spoke loftily and at length about freedom of expression and the right to access information that derives from it. Indeed, we must make every effort to avoid infringing the free dialogue in the new “town square” and the flow of information on the Internet. Freedom of expression is the air we breathe, and the right to access information – our daily bread. All the same, in its decision, the Administrative Affairs Court stated that illegal gambling on the Internet certainly is not a protected right, and that in such circumstances indeed there is no “discourse of rights” (para. 21). However, the gambling sites also feature additional content: expressions, pictures, texts, explanations, lists and other audio-visual information. According to the Administrative Affairs Court all of these are of social value, concededly of “low value”. Nevertheless, “in the prevention of access to gambling websites the Respondents infringed the freedom of expression of users interested in entering the website and in browsing the information and of the site owners who uploaded the content” (para.23).

14.       This infringement upon free expression was scathingly criticized by the Israel Internet Association, but it appears to me that the alleged infringement is not quite what it was made out to be.  Attorneys for the State dispute this, claiming that the aforementioned gambling websites contain gambling content and nothing else, and that in any event, it is not content of a kind to which access cannot be denied based on freedom of expression. As mentioned, the petition was filed by the Israel Internet Association and not by access providers or website operators, with whom the relevant information is stored. This matter again exemplifies the problematic nature of granting standing to a party meddling in a dispute that is not its own, because the factual infrastructure laid before the court was insufficient and a court may follow it blindly.

15.       Regardless, even had the gambling websites under discussion included legitimate content alongside platforms of illegal gambling, there is nothing to prevent website owners from making the information accessible to users by one of two methods: either on an alternative site, or on the same site, together with blocking possible engagement in prohibited gambling there. The infringement of free expression is therefore quite marginal, if at all.

16.       We should not forget that the closure of a physical gambling place violates the right to property, a basic constitutional right, but is nonetheless permitted and frequently done according to the law. Case law, too, has permitted the closure of a physical gambling place, even when it serves for other legitimate activities (per former Justice Grunis in AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [3] at p.798 (hereinafter: Tishim Kadurim). As mentioned above, the Israeli Internet Association argues that not all of the content on the gambling sites at issue is illegal and that these sites serve as platforms for chatting and other legitimate uses. This is a factual claim that requires factual substantiation. But assuming it is correct, we again analogize to a physical gambling place, which may undisputedly be legally closed. In addition to serving for illegal gambling, such a place can also serve as a place for social interaction, where conversations, even on matters of highest importance, may be held. But this would not rise to the level of speech protected by the right to free expression that would prevent closing a physical place of gambling. Visitors would be able to continue to meet, to speak, and to exchange opinions in alternative venues.  Similarly, there is nothing to prevent taking the same action regarding a website where illegal gambling takes place.  Access to the latter would be blocked, and to the extent that other legitimate activities took place on the website, there would be no impediment to continuing those, whether on this site or on another site.

17.       Hence, in terms of practical implementation the concern for violating a fundamental principle has been alleviated. The elevated status of freedom of expression is far beyond dispute. It remains intact and its status is securely enshrined, and access to illegal Internet gambling can be restricted without infringing freedom of expression or the right to access information. I make additional comments on guarding against any infringement of free expression below, in my discussion of discretion in exercising police authority.  

(c)  Police Authority

18.       Law enforcement agencies source their actions in two statutory provisions. Section 3 of the Police Ordinance provides that: “The Israel Police shall work toward prevention and detection of offences, apprehension and prosecution of offenders, safe custody of prisoners, and maintenance of public order and the safety of persons and property”. This is a basic and important provision, but because of its generality is of limited value to us. A more important provision for our purposes is the specific provision of section 229(a)(1) of the Penal Law, which addresses “closure of places”, as follows:

 “A district police commander may order the closing of a place for prohibited games or a place for the conduct of lotteries or gambling.”

19.       There are two, similar alternatives. The first: “a place of prohibited games”, and the second, “a place for the conduct of lotteries or gambling”. The Administrative Affairs Court focused on the first alternative, which is defined in section 224 of the Penal Law:

“‘Place of prohibited games’: premises where prohibited games are held regularly, whether open to the public or only to certain persons, regardless of whether those premises are also used for some other purpose.”

Based on dictionary definitions in both Hebrew and English, the Administrative Affairs Court ruled that the statutory definition refers to a physical, delineated place; such as a house, building, field (para. 36 of the Administrative Affairs Court opinion). The court relied on Y. Kedmi’s book, which interprets premises “in the broad and comprehensive sense of the concept... Immovable property as distinct from movable property.” (Yaakov Kedmi, The Criminal Law (Part IV)  2283 (2006).

20.       Can the term “premises” be said to include the world of Internet? In my opinion “virtual premises” are also “premises” but this question can be left for future decisions. Section 229(a)(1) of the Penal Law, as mentioned above, consists of two alternatives. The second alternative, as worded, does not necessitate reference to the definitions section. The question therefore arises as to whether “place” can be broadly interpreted to mean “virtual space”. The Administrative Court answered this question in the negative, with sound, logical and, at first blush, persuasive reason: 

“Moreover, relating to a website as a ‘place’ is inconsistent with its mode of operation. A website, by definition, is an agglomeration of information and applications, installed on a computer, that connects with many other computers over the Internet. When a user ‘enters a website;, their personal computer contacts another computer (‘the website server’) which is found elsewhere, and requests information. The user’s computer has a unique number (IP address) and the website server has a unique number (a different IP address). The website server transmits the information to the personal computer, which uses a browser to arrange the information for reading. When “actions” take place on the website, the personal computer asks for new information from the website server, receives it, and arranges it on the personal computer. Information is transmitted between the personal computer and the server, but there is no “place” here at all. Justice Tenenbaum described this well in his article: ‘The choice of the Hebrew word “site”, intuitively conjures the notion of a geographical site. Perceiving the site as a “place” induces us to say “enter a site”, “exit a site” and the like… all the sites on the Internet are connected to each other and the vulnerability of one also harms the other… the Internet was created, developed and exists by virtue of all the individuals which support it and maintain its integrity. Correct and appropriate public policy must be based on this and facilitate these efforts… a “website” is not a place. In fact, a “site” is nothing more than a computer that holds software that regularly communicates with many other computers’” (para. 37 of the Administrative Affairs Court opinion).

21.       These comments were repeated and reiterated by the attorney for the Israel Internet Society, and I am prepared to endorse them unreservedly. A website, in essence, is not a “place” according to its technological definition. However, even if this is our point of departure, the necessary conclusion does not specifically exclude virtual space from the scope of section 229(a)(1) of the Penal Law, as will be explained. But prior to doing so a few comments must be made about the Internet, progress and the attempts of law and justice to keep up with the times. 

22.       Humanity in its entirety, laymen and experts, almost all of us are still learning, wondering and marveling at the Internet. Its influence is felt all over the world, but it will certainly take a long while before we can assess its full effect and implications: “We are living at the height of a revolution: Technological development in the computer realm, digital information and digital networks are generating a social, economic and political upheaval (Niva Elkin-Koren and Michael Birnhack, Introduction, in Legal Network: Law and Information Technology (with Niva Elkin-Koren, 2011);

The computer – and with it the Internet – are not merely a mutation of previous life forms that we have known, which we have given a home to in the legal system. They are a new life form, and their movement is not the movement of the life forms with whom we are accustomed to live. They move in the manner of the knight (the horse) in a chess game; its movement is not altogether forward, nor altogether backward or altogether to the side. It is not altogether diagonal. Its movement is a tinkling of this and a tinkling of that, and it exists in its own right. But here is how the new life form differs from the knight: we know in advance how the knight will move and we know, more or less, how to protect ourselves when it attacks us. As for these new life forms of the computer and the Internet – we have yet to fully explore them; we have yet to reach the bottom of the pit. One click in Jerusalem, and you are in Tel-Aviv, a second click and you are in Australia, a third click – and the system rebels and everything is erased as if it never was. We have begun to move at the speed of light whereas our bodies are in the carriage, and our stream of thought moves at the speed of the carriage (Mishael Cheshin, “Introduction” The Computer and the Legal Proceeding: Electronic Evidence and Procedure  (2000).

Some view the Internet as a new universe. “In a short time the Internet has created a new universe of inconceivable dimensions. This universe dominates almost every aspect of civilization, replicates it and corresponds to it” (Rubick Rozental, A Few Comments on the Language of Internet, Legal Network: Law and Information Technology, eds Michael Birnhack and Niva Elkin-Koren, 2011, 61).  The Internet has come to our world, entering into its inner domains, but we still have trouble defining it. It exists all over the world and simultaneously in no place at all. More precisely, there is access to Internet and its activity all over the world, but its existence is “nowhere”.     

23.       As is well known, the law follows sluggishly in the footsteps of innovations, and legislation does not keep up with the pace of scientific progress. Offenders against the law adapt to progress more rapidly than its enforcers. This is axiomatic. The former have no restraints; the latter do. Many years passed between the invention of the computer and the enactment of the Computers Law, (1995). Less than a generation or two passed in terms of computers, and the law is already out of date, because the legislature did not foresee, nor could it have foreseen the innovations in technology. But not only is the legal world perplexed. Psychology too has encountered new phenomena of addiction and psychological injuries, and is attempting to develop updated, “on the go” reponses.  The same is true for sociology, and other disciplines in social sciences, natural sciences and the humanities. Not surprisingly, the world of law too is still unequipped. Some have taken an extreme view, claiming that given the virtual nature of the Internet, it cannot be subjected to the laws of space, time and state (see written references for this approach in the article of Yuval Karniel and Chaim Wismonski, Freedom of Expression, Pornography, and Community in the Internet, Bar Ilan Law Studies 23 (1) 259 (2006); Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011, 207).

24.       This extraterritorial approach is unacceptable. Concededly, an abundance of legislation that would impair the tremendous benefit inherent in the Internet is undesirable, nor is there any point in legislation which is unenforceable given the characteristics of the network. However, for good or bad, virtual space exerts a tangible influence over the concrete world, and our world will neither consent to nor tolerate the virtual realm’s exemption from the law. Act of pedophilia committed online are still pedophilia, drugs sold via the Internet still have the same addictive and destructive affect as drugs sold on city streets, the terrible harms of Internet gambling are no less damaging than danger from gambling in a physical place. Quite the opposite, the Internet opens new horizons for the world of crime. They should be blocked. The approach of excluding law and justice from virtual space must be kept off bounds.

25.       All the same, undeniably, the legal regulation of activity in virtual space is complex and complicated. Normative claims as to what the law ought to be are difficult to make, nor is it easy to apply the existing law. Not by chance, there are those who have concluded that this is an area best suited for legislation; while others feel that case law is the appropriate method for adjusting the law to the Internet era. Both camps are uncertain about the extent to which Internet users should participate in formulating the rules governing virtual space and their application. (For a comprehensive review of the possible models, see: Iris Yaron Unger Uncovering the Identity of an Anonymous Internet wrongdoer – Comparative Review, The Knesset, Legal Department, Legislation and Legal Research, 2012).  A variety of models in case law and legislation have been adopted by states around the world (Miguel Deutch, Computer Legislation in Israel, Tel-Aviv Law Studies 22 (2) 427, 428 (1999)). The issue is weighty and broad and its influence far-reaching, but I will not elaborate on it beyond what is required for discussing the concrete questions of this appeal: the authority of the police to issue an order restricting access to gambling websites on the Internet.

26.       It seems that a comprehensive statutory regulation of this field, in a precise manner adjusted to the virtual era is preferable.  The question is whether, absent updated and comprehensive legislation, the law as currently worded satisfactorily considers the police’s authority to issue the orders in question. The Administrative Affairs Court decided to defer the legislative process, but to void police powers to order closure of virtual gambling places until the statute is expressly amended to confer such authority. This ruling involves difficulties.

27.       The ‘waiting period’ created restricts, and occasionally frustrates, appropriate responses toward law enforcement and justice.  This approach, coupled with the previously described pace of technological progress, can be expected to lead to a situation where many legislative acts will be neither relevant nor applicable. Even after the legislature has amended the legislation, it is entirely possible that within little time that amendment will no longer be useful. Hence waiting for the legislature to act will not necessarily provide a solution. “The judge interprets the law. Without his interpretation of the law, it cannot be applied. The judge may give a new interpretation. This is a dynamic interpretation that attempts to bridge between the law and changing reality without having to change the law itself. The law remains as it was, but its meaning has changed because the judge gave it a new interpretation that is consistent with society’s new needs. The court ... realizes its judicial role in bridging law and life (Aharon Barak, The Judge in a Democratic Society 57 (2004); and see HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior [4], para. 12 of former Justice Grunis’ opinion; LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (hereinafter: Mor) paras. F-I, of Justice Rubinstein’s opinion; CA 9183/09 The Football Association Premier League Limited v. Anon [6] paras. 4-6 of Justice Melcer’s opinion (hereinafter:  Anon)).

28.       On one hand, Internet crime is becoming increasingly sophisticated. On the other, criminal law develops slowly. The chasm between the two must be bridged. The Knesset achieves this through legislation, while the courts through case law. The reality of life does not allow us to wait for the Penal Law to be amended to determine which offences can escape sanction when committed over the Internet and which cannot.  Nor is it legally necessary to wait until the legislature has reviewed all of the criminal law’s provisions and decided which of them are applicable to the Internet. The court must respond to the specific matter brought before it and rule one way or another. This is not a question of ‘judicial legislation’, but rather of ‘judicial creation’. The same criminal offences proscribed many years ago and committed on city streets, are now committed on a larger scale and with greater force via the Internet. Occasionally, the actus reus is identical, the mens rea is identical, the legislative purpose is identical, and the damage, is quite often more extensive and severe in the virtual realm.  

29.       Needless to say, we are still bound by linguistic restraints and cannot deviate from their boundaries to cast our net over whatever we see as a crime or a tort in the “real world” and possibly appears as such in the virtual domain. All the same, the legislative purpose, generally common to all offences, whether committed here or there, requires an interpretative effort to prevent greatly harmful artificial loopholes in enforcement. The tremendous damage that can be wrought by the Internet was descussed by Justice E. Hayut: “The infringement concerned enlists human progress and technological innovations in computing in the service of crime, thus yielding a new and dangerous form of criminality that cannot be taken lightly. This form of criminality does not involve physical-tangible harm that leaves its marks on the victim’s body. It is committed remotely, with the click of a button, but its damage is extensive and carries different levels of implications, including to, as stated, a victim’s personal security and privacy, his property, his business, and his commercial secrets” (Cr.A 1439/06 Zaltovski v. State of Israel [7]). In the same vein, former Justice Grunis wrote: “The Internet is fertile ground for committing different types and categories of criminal activity, and inter alia, activities directed against state security. That the Internet era has made it significantly easier, technically, to commit offences such as a conspiracy to commit an offence cannot be ignored. Hence, in the case before us it is undisputed that “A” and “S” became acquainted by chance… via the Internet. In other words, conceivably, if not for the chance Internet meeting they would not have met and could not have conspired to commit the acts described in the indictment. Hence, the case before us demonstrates a need to impose punishment that deters from the negative and criminal side-effects that accompany technological developments” (CrA. 7430 /10 Anon v. State of Israel [8]). There are numerous other examples, and we take judicial notice of the Internet being exploited for grave and dangerous harm on a broad scale.

30.       Pedophilia is a pernicious scourge on the Internet. Is pedophilic material in virtual space nothing more than a collection of ‘pixels’ – with no substance – that the law is powerless to reach?  In practice, the courts do not stand idly by, and they ideed apply the Penal Law’s provisions to offences committed over the Internet. Naturally, this is not done reflexively, but rather the required physical and mental elements have been examined, under the circumstances of each case, and the principles of criminal law have been applied. (See Assaf Hardoof, Cybercrime, 17 (2010) who sharply criticizes the approach that the Internet’s characteristics undermine the foundations of criminal law. According to his approach, the mental complexities leading to criminal conduct committed in a physical environment also exist on the Internet.)

31.       We will return to the meaning of a “place… of gambling” in section 229(a)(1) of the Penal Law, which the police is permitted to close. If, according to the Administrative Affairs Court’s decision, it refers to a physical and not virtual place, then logic dictates that this would also be the meaning of a “place… of gambling” immediately above in section 228 of the Penal Law. If so, then not only would the police be prevented from issuing orders restricting access to gambling websites, but it is doubtful it would even be possible to convict a person operating, over the Internet, “a place for prohibited games or a place for the conduct of lotteries or gambling” (section 228 of the Criminal Law). On its face, this would conclusively preclude not only restricting access to illegal gambling websites, but also the enforcing the prohibition of possessing or operating illegal gambling websites. This state of affairs would remain until we are saved by a statutory amendment, which may or may not come soon.

32.       Moreover, in Israeli legislation, the term “place” is used for different offences and in numerous contexts. For example, “public place” is defined in section 34(24) of the Penal Law and is mentioned in numerous other sections concerning offences and punishments; Chapter C of the Preliminary Part of the Penal Law, deals with “Applicability of Penal Laws according to Place Where the Offense Was Committed  (emphasis mine – N.S.). A place in which an Internet website is viewed, or is used is a “place” that establishes judicial jurisdiction. Should we exempt the Internet from the Penal Law going forward because it is excluded from the definition of a “place”? Similarly, would we permit discrimination on the Internet just because it is excluded from the definition of a “public place” in section 2 of the Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001? (See e.g. the conviction for supporting a terrorist organization on the Internet, where the internet was found to be a “public place” CrimF (Nazareth) 12641-11-10 State of Israel v. Abu-Salim (Deputy President Yung-Gefer) paras. 47-56 (1.4.12)).

33.       The civil law, too, is frequently required to apply the concept of “place” to the Internet. On more than one occasion courts have held that Internet-based conduct fall within the jurisdiction of courts all over the country. For example, in a breach of copyright and intellectual property case, concerning a website for a virtual shop selling household goods and gifts, the court held that “the picture was presented on the Internet, namely – in each and every place within the area of the State of Israel. It is therefore clear that the place of the omission was in the entire state and by extension in each and every district… the territorial jurisdiction extends to the entire area of the State of Israel” (Comments by Judge Tenenbaum in App. (Magistrates – J-Lem) 8033/06 Steinberg v. Levi (10.4.2007). These remarks, made in his role as judge are inconsistent with his decisive remarks in his role as scholar in the article cited above: that “an Internet site ‘is not a place’, which the Administrative Affairs Court relied upon in the decision appealed here (para. 37)). Even more accurately, all the alternatives stipulated in Regulation 3(a) of the Civil Procedure Regulations, 5744-1984 employ the language of “place” (place of residence, place of business, place of creating obligations, place intended for fulfillment of obligations, place of delivery of asset, place of act or omission).  Is it possible to exclude the Internet from territorial jurisdiction because it does not fall into the category of “place”?

34.       Due to space constraints and in the absence of satisfactory arguments it cannot be responsibly councluded that wherever the term “place” appears in primary or secondary legislation it must be applied to the Internet as well. Conceivably, there could be certain, isolated exceptions, but the rule should be that the Internet fits the definition of “place”. The Israeli Internet Association’s claim, which the Administrative Affairs Court accepted, that both in truth and according to its dictionary definition, virtual space is not a “place” is not sufficiently persuasive. The settled, entrenched and well-accepted law is that “the words of the law are not fortresses, to be conquered with the help of dictionaries, but rather the packaging of a living idea which changes according to circumstances of time and place, in order to realize the basic purpose of the law” (comments by then Justice A. Barak (LCrApp 787/79 Mizrahi v. State of Israel [9] at 427). There, the Court held that the “one who escapes from lawful custody” refers not only to an inmate who literally escapes from prison but also to a prisoner who fails to return from furlough: “it may be argued that our concern is with a criminal provision that should be accorded a narrow construction, by attaching only ‘physical’ meaning to the terms ‘custody’ and ‘escape’. I cannot accept this line of thought. A criminal statute, like any other statute should be interpreted neither narrowly nor broadly but instead by attaching to it the logical and natural meaning that realizes the legislative purpose" (ibid).These statements have retained their vitality and are applicable to our case too, and even a fortiori: in that case the issue concerned a criminal offense, whereas our concern here is with an administrative measure.

35.       As stated, the legal world is still not best prepared to handle the Internet, and this is also true of the world of language.  The terms that serve us in virtual space are borrowed from the tangible world. On the Internet we use a “desk top”; the user “cuts”, “copies”, “pastes” and “deletes”; “writes” “notes”; “stores” in “files”; and “sends” to the “recycling bin” and receives “documents” and “junk mail” into a “mail box”. Given this background, the word “place” is by no means exceptional. It would not be a deviation from the ‘principle of legality’, nor from the rules of interpretation were we to determine that “place” also includes virtual space, and that its meaning also encompasses a website. Since we speak of an Internet “site” in our daily conversations, we should remember its dictionary definition and its Talmudic root (b.Zevahim 7a): a “site” is a “place”.

36.       Therefore, in interpreting section 229(a)(1) of the Penal Law, I see no justification for taking a literal and narrow approach, which interprets the word “place” as a physical place only. In the current modern era, a website is also a type of place. The section’s language also tolerates the classification of virtual space – or perhaps better termed as “computerized space” – as a “place”.

37.       From language to purpose: In the case of Tishim Kadurim [3] then Justice A. Grunis explained the purpose for prohibiting certain games as a value-based goal. Man is born to labor rather than easy enrichment based on luck. Addiction to gambling is a serious scourge that harms the individual, their family and society as a whole. Before the Penal Law there was the Criminal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, and before Justice A. Grunis there was Justice Haim Cohn who made the following remarks about the legislative purpose behind the previous statute:

                        The legislative purpose, as reflected clearly in the nature and the language of the law, is to combat, by criminalization, the scourge of gambling and betting – the scourge of winning money or its equivalent other than by work or other reasonable consideration, but rather by the luck of the draw. Mr. Terlo rightly mentioned the well-known fact that mankind has an evil tendency to try his luck in gambling. One need not have a particularly developed commercial instinct to assess the tremendous prospect for profit in the commercial exploitation of this natural human tendency.  Mr. Terlo said, and I agree with him, that such commercial exploitation, in all of its various forms, produces demoralization. I further add that from my perspective, the wrong that the law seeks to prevent is not only the encouragement of desire for lawful easy enrichment without labor, but also – and perhaps primarily – the placing of an obstacle before the blind, where instead of spending his money on his own sustenance and that of his household, he invests in dubious ventures based on luck (HCJ 131/85 Savizky v. Minster of Finance [10] at 376).

38.  As we can see this plague is nothing new to us. The following is a reliable testimony from two hundred years ago about this phenomenon and the harm it causes, relating to the fate of those who wager on dice: “The number of those involved has multiplied, where their foolish preoccupation is such that they spend nights and days gambling, in their homes, on their roofs and on street corners, until they lose everything. Even if they are wealthy, eventually they lose all and must steal and resort to violence, while their family members starve; their children beg for bread, and there is none to give them, for they do not work to bring food to their families. And one sin leads to another, in that they neglect prayer and fulfillment of the commandments, for when temptation seizes them and they engage in gambling, it is extremely difficult for them to forsake it, as difficult as separating one’s fingernail from one’s flesh. They do not take care of themselves and do not tear away from gambling, even to eat at the time for eating and to sleep at the time for sleeping. One who is addicted to gambling will not leave it even when he is old, for only will-power can separate from it.” (Rabbi Eliezer Papo, Pele Yo’etz, Constantinople, 5584 - 1824).[1] […]

39.   In 1975 the legislature added a provision to the Penal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, which granted the District Commander of the Police the authority to issue an order to close “a place for prohibited games or a place for the conduct of lotteries or gambling” (S.H 5735, No. 779, 222). According to the introduction to the Explanatory Note of the bill, the legislature was dissatisfied with the existing criminal sanction, and sought to close places where prohibited games were conducted, as a preventive measure: “The Law imposes a punishment on the possessor or operator of a place for conducting games with cards, dice, game machines, and the like, But there is no law that prevents the actual existence of such place… The proposed law seeks to establish provisions… by enacting legislation directly designed to address the phenomenon of the crime that thrives in such places, and to confer the authority for the advance prevention of the opening of businesses that are liable to harm public safety and generate crime. It also proposes to stiffen the punishments and to adapt them to any given situation (H.H. 5735-1975).” Incidentally, the Explanatory Note refers to the closing of “a certain place”. In light of our conclusions above, it is not inconceivable that “a certain place” encompasses the Internet, it being a place where anonymity is preserved and where we have no knowledge of a website owner’s or users’ identities, nor do we know what that place is, or where is it located, all of these are considered  “anonymous".

40.       The harm wrought by gambling on the Internet is immeasurably greater than that which is caused in physical place. Gambling websites on the Internet are accessible to all sections of the population, from adult to child, the rich and the poor, the honest and the corrupt, the wise and the legally incompetent. With just a click of a button and press of a key any novice can gamble on the Internet. But not only accessibility is concerning, there is also availability – at  any time and any hour.  Identity can be disguised to enable the use of all features of virtual spaces. All of these come together to exacerbate the phenomenon and its range of harms: addiction, vast loss of funds, money laundering, tax evasion, incidental crime, and more. A large physical gambling venue can hold hundreds, perhaps even thousands of clients, but it pales in comparison to the Internet, which is available to millions of people. With these capacities, the number of victims also rises exponentially, as well as the amounts of funds dubiously invested.

41.       When section 229(a)(1) of the Penal Law was enacted, the legislature did not anticipate the Internet and by extension did not consider the illegal gambling that would be conducted there. However, the legislative purpose evidently was to prevent illegal gambling, regardless of location.  The police pursuit of offenders does not end at virtual space; the Internet cannot become a city of refuge. The material factor is not the platform for illegal gambling but rather the phenomenon itself. “Do not look in the canister, but at what is inside (Mishnah, Avot 4.2)” If it is technically possible to close a gambling place, even if the closure is not an enclosure but rather a prevention of access, the legislative purpose should be realized, to the extent possible, through proper interpretation. And again, if we assume that it refers to a physical place, then illegal gambling need not necessarily be conducted in a closed structure, for example, a vast area in which illegal gambling takes place.  The possibility of ordering its closure exists and can be done by preventing access through the gate. The police would be authorized to close the gate and prevent access to a space used for criminal activity. In the same vein, the Internet too is a space: a computerized space (some have used the expression “global public space”. See Jurgenb Habermas, The Structural Transformation of the Public Sphere, Thomas Burger & Frederick Lawrence translations (1989); Tal Samuel-Azran, Global Public Sphere on the Internet: Potential and Limitations, Legal Net:  Law and Information Technology, 433, 434 (Niva Elkin-Koren and Michael Birnhack eds, 2011)). Entrance into computerized space is also through a “gate” embodied by the access provider and the website operator. Concededly, the entrance is not physical, actually consists of communication between computers, but this is immaterial, because the technological definition is inconclusive as to the interpretative question.

42.       Jewish Law can enlighten us. The Torah was given at Mt. Sinai. In the ancient world, modern technology and the Internet era were unimaginable. Nonetheless, the Torah seeks to adapt to present and future reality by way of interpretation, for otherwise it would become a dead letter instead of a living document. Interpretation must adhere to language in order to fulfill the Divine words and to not deviate from them in any way. It was specifically because of this that the Talmudic Sages saw no difficulty in adapting terms such as ox or donkey or camel, used in those times for labor and transport, to the context of vehicles and planes. This is the present need for otherwise Jewish law will no longer be relevant or valuable. Rabbi Aharon Lichtenstein made remarks pertinent for our purposes, and they should guide us: 

                        In the developing technological reality the ability to cause damage, physical or even virtual continually increases, without incurring any liability under the criteria of Nahmanides or of Rabbi Yitzhack.[2] The harm may be more abstract and the process of causing it may be more indirect than the minimal threshold for liability under garma.[3] Nonetheless, the result is quite severe.

                        Accordingly, a learned and sharp-minded thief would be able to plan and execute the perfect burglary, with the assistance of grama tools for breaking in, without consequences, whether due to direct damage or force of garmi.  Should we persist to grant exemptions in this kind of scenario based on the law of grama in torts?...

                        The request is simple, the authority exists and eyes are raised in anticipation. In the event that leading Jewish authorities succeed in enacting an amendment for this matter it would provide a  remedy for a real concern for society, and at the same time, would  elevate the glory of the Torah (Lessons of Rabbi Aharon Lichtenstein, Dina d'Grami, 200 (5760); See also in the comments of Justice N. Hendel, para. 6 Anon.)

43.       Thus far on the laungauge and the purpose. We now proceed to address some of the difficulties the Administrative Affairs Court considered in the decision appealed here, in terms of applying of the law to the virtual sphere. These difficulties also lead the court to conclude that the solution lies with the legislature and not the court, and that it is appropriate to wait for legislative amendment.

44.       A primary difficulty is that the orders restrict access to the Internet through third parties – the access provider. According to the Administrative Affairs Court, based on the Israeli Internet Association’ claim, the law authorizes closing a place, but does not authorizes ordering a third party to prevent access to an Internet site. The claim is a weighty one. Access providers’ legal responsibility poses questions in different legal contexts. For example, in the Mor [5] case the Court held that the provider is not obligated to disclose the identity of anonymous “talkbackers”, and called upon the legislature to regulate the matter. Similarly, in Anon [8] the Court ruled that a supplier cannot be compelled to reveal the particulars of a site owner who breaches copyright in order to file an action for that breach. This decision was also accompanied by a call for legislation of the matter. At the same time, the Court held that if a certain matter did not find a legislative solution, courts would have to provide solutions in case law, and the legal doctrines required to fill in the lacunae were presented. The matter before us is different. Here, it cannot be said that there is no legislative provision that confers authority. There is no need for primary legislation of the issue. The section’s interpretation leads to the conclusion that the section applies to the virtual realm. Legal issues concerning the access provider may be adequately resolved in the context of how the police may exercise its authority to order restricted access to gambling websites. That such difficulties exist should not be a determinative factor in whether the authority exists.

45.       I also believe that the legal challenges involved in restricting access to gambling websites vis-a-vis the access providers were exaggerated. First, using a third party to execute criminal proceeding is not illegitimate. The law recognizes, for example regarding a summons to present evidence for investigation or a trial (section 43 of the Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969. Second, given the license they receive from the State, access providers have a public duty. They sit at a central intersection – the “Internet points of control” – and under these circumstances using them to execute orders restricting access is justified.  Third, it appears that had it concerned the closure of a physical place by the police, with third party assistance, there would have been no problem.  The attorneys for the State demonstrated this in another context thus: Illegal gambling is being conducted in an isolated villa. A guard is in charge of the path leading to the villa. Would the police not be authorized to order the policeman to prevent gamblers’ access to the path leading to the villa? Fourth, a police order directed at access providers instructing the to restrict access to illegal gambling websites does not require them to conduct any investigation or inquiry and does not unlawfully breach any of their rights, ordering them only to “execute a technical act that does not involve any discretion of the closing of a site with a particular IP address, explicitly specified in the order” (section 41 of the State’s summations). Case law has stressed that imposing legal responsibility on the supplier raises concerns that should be regulated statutorily (see Rachel Alkalai, Civil Liability of Internet Services Suppliers for Transfer of Harmful Information Hamishpat 6, 151, 154 on the Report by the Knesset Sub-Committee for Communications and Information on the Need for a Legislative Arrangement). However the situation in the case before us differs from the one described there. We do not hold that Internet providers are legally responsible to prevent, on their own initiative, access to websites used for illegal gambling.  Moreover, our ruling does not prevent access providers from petitioning a court in appropriate cases in order to subject it to judicial review. This right is stipulated in section 5(1) of the Administrative Affairs Court Act, 5760-2000 (item no. 7 of the First Schedule). Recall that the access providers did not exercise this right and did not challenge the order.

46. The Israeli Internet Association claims that this is an “unprecedented and exceptional measure” (page 1 of the summations). This is not so. The Administrative Affairs Court recognized that restricting access to Internet websites used for gambling is accepted practice around the world: “The desire to minimize the harm from negative uses has led certain authorities, even in liberal democratic countries, to take various measures against websites that support anti-social activities (see: Betting on the net: An analysis of the Government’s role in addressing Internet gambling, 51 Fed. Comm. L. J. (1999)). One of those measures is blocking access to websites that are breading grounds for illegal activity, by various technological means…” (para. 19 of the opinion) (ed. note: translated form the Hebrew opinion’s translation).  In Australia, a law was enacted in 2001, stipulating that “access providers shall block access to illegal gambling sites should they receive an express demand to do so from the authorities” (ed. note: translated from Hebrew opinion’s translation), subject to the conditions set forth in the Interactive Gambling Bill 2001. In 2006, the United States passed a law prohibiting Internet gambling – the Unlawful Internet Gambling Enforcement Act of 2006, which inter alia allows that under certain circumstances, the court may grant orders to compel internet providers to block access to gambling websites (paras. 54- 55 of the Administrative Affairs Court opinion).

47.       Additional restrictions are common around the world. The Council of Europe’s Convention on Cybercrime deals with the adoption of legislation intended to protect society from crimes committed online (http://conventions.coe.int/Treay/en/Treaties/Html/185.htm). It provides inter alia that all parties to the convention will adopt legislative and other measures as may be necessary to criminalize various acts of child pornography, which is disseminated over computer systems (Article 9). In 1998, Sweden passed a law addressing liability for electronic bulletin boards, including various categories of Internet pages (Act (1998:112) on Responsibility for Electronic Boards).  This statute requires service providers who store information (as distinct from Internet access providers) to make illegal content inaccessible or to remove the content. If further refers to a number of provisions in Sweden’s Penal Law, for example, incitement to racism, or child pornography (http://www.nai.uu.se/forum/about-nai-forum-1/SFS-1998_112-Act_E-boards.pdf.).

48.       Australia established an agency known as Australian Communications and Media, which is charged with, inter alia, regulating Internet content. The agency is authorized to investigate potentially prohibited content on the Internet, and to issue access providers “notice of warning and removal” relating to the contents of Internet websites used for illegal gambling. In Italy, since 2006, Internet gambling has been prohibited, unless on authorized websites.  Internet access providers are required to restrict access to unauthorized websites listed in a “black list” kept by an administrative body: Autonomous Administration of State Monopolies, http: www.aams.gov.it/site.php?id=6560).  As it turns out the restriction of access to websites is an accepted measure, occasionally following an order by an administrative body. The a priori involvement of a judicial body is not always necessary, and there is no need for a criminal investigation to precede the administrative directive. States around the world acknowledge the necessity of restricting prohibited activities on the Internet as well. The State of Israel is not a pioneer in this realm.

Police policy is to exercise this authority with caution. The investigations and intelligence branch prepare the infrastructure required for issuing an order.  Legal counsel to the police examines the material, and so does the State Attorney.  Immediately before issuing the order, the access providers and websites operates are given the right to present their arguments. The decision to issue the order is given at the level of the district commander.  A party who could have been aggrieved may file an application for a second review, and following that, as stated, may also petition the courts. After issuing the order, the police examines it periodically, and at least once a month considers whether to extend it, revoke it or amend it. Against this background, if the police orders, consistent with its authority, a third party to assist it in preventing an offence, and if the latter agrees, why should the court prevent it from doing so? If the same access providers wish to object, the doors of the court are open to them in order to hear their claims.

50.       As we have said, the authority is there; the manner of exercising it is subject to discretion and judicial review. Recall, that the access providers filed no petition to any court, and in this sense, the Internet Association is indeed meddling in a dispute to which it is not a party (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee PD 57(2), 62.) Regardless, in the absence of appropriate factual infrastructure, there is no practical possibility or legal need to elaborate further on this matter.

51. The Administrative Affairs Court stated that restricting access through the orders in question could incidentally block innocent websites. Attorney for the State responded to this argument, claiming that from a technological perspective this fear was negligible because the IP address can be crossed with the website’s URL address in order to prevent restricted access to innocent sites. Personally, I see no need to rule on this point, given that it was not fleshed out in the Administrative Affairs Court.  The state can consider these claims in light of its discretion to exercise the authority. In preparing the order, the police must ensure that execution by access providers does not harm innocent websites, but only restricts access to the targetted website. Where it is impossible to avoid harm to innocent websites, as a side-effect of blocking access to a gambling website, to the extent that the Israeli Internet Association is correct and such situations indeed occur, the police would not be permitted to order restricting access to the site. Presumably, a provider wishing to avoid harm to innocent websites would present such claims under the right to be heard, in a petition for second review by the police, or in a petition to the court.

52.       The Israeli Internet Association also claimed that restriction of access was ineffective. The attorney for State argued in response that the inefficacy claim directly contradicted the Israel Internet Association’s claim concerning the damage such orders would cause: If the orders are ineffective, then naturally no harm would be caused. In any event, the court has no expertise regarding the efficacy of the orders. The position of the Israel Police – the professional body charged with the matter – is that the orders have a substantial effect and that this is another effective tool against illegal Internet gambling.  The Israel Police is aware of the methods used in an attempt to ’bypass’ the orders (for example, changing the URL website address, or its IP address). But this involves costs and not all end users know how to do it, and the police also has the tools for dealing with ‘bypass’ attempts. Actually, enforcement difficulties are not unique to virtual space and are common in all areas of crime: “For by wise counsel thou shalt make thy war” (Mishlei 24:6).

53.       The Administrative Affairs Court had difficulty not only with “place”, but also with “the closure”. According to the court, “closure is one thing, blocking access is another” (para. 41), and “even a broad interpretation of the law cannot confer the police commander authorities not specified in the law”  (ibid). My opinion is different. If the police is authorized to fully close illegal gambling websites on the Internet, then let alone it should be authorized to block or restrict the access to them. This is a less harmful measure. Section 17(b) of the Interpretation Law 5741-1981 provides that “any authorization to act or compel action implies the auxiliary authorities reasonably required therefore.” Authorization to close (and afortiori if closing is not possible) also means granting powers to block access.

54.       The Israeli Internet Association opposed various claims by the State’s representatives regarding the legislative regulation of the issue. This may be so, and it would have been preferable had they spoken in one voice, but we must remember that the issue raises real doubt. There is nothing to prevent changes in views or thought processes, and in making deliberations more productive. The binding position of the State’s representatives, at the end of the day, is that of the Attorney General, and the arguments were made on his behalf. Without derogating from its claims here, the State also submitted the draft bill to clarify the situation, but one cannot know how the legislative process will develop. The same applies to the four previous draft bills presented to the Knesset. Each one of them attempted to explicitly authorize the police to order access suppliers to block access to gambling websites, but none of them materialized into a legislative act. The Knesset members expressed varying opinions but I do not think it is possible to distill a clear conclusion from their comments regarding the subjective intention of the legislature, as concluded by the Administrative Affairs Court: “The fact that the legislator debated the proposal substantively and decided not to enact it, indicates that its subjective intention was not to apply its principles in fact… the subjective and concrete intention of the legislature in this matter, indicates that it sought not to give the District Commander authority to block access to gambling sites pursuant to his own discretion”  (para. 61). In my view, this conclusion is by no means inevitable. According to the record, some of the Knesset Members felt that a legislative amendment was entirely unnecessary, and that the authority already exists. In view of the differing views, additional possibilities exist. Summing up the debate, the committee chairperson pointed out the difficulties that were raised, but the general position was to conduct another hearing. A small part of the legislative proceedings and a few Knesset members who are members of the Constitution, Law and Justice Committee cannot provide a basis for a generalized legislature’s subjective intention.

Final Word

55.  I do not think that there was any justification to cancel the orders issued by the police, with the State Attorney and the Attorney General’s knowledge, to restrict access to gambling websites. First, it is doubtful whether the Israel Internet Association has locus standi in this petition; second, the alleged infringement of free expression is certainly not as serious as was alleged; third, the main point is that section 229(a)(1) of the Penal Law constitutes an authorization for the police to issue the orders. This is consistent with the section’s language, its logic, the legislative history and the legislative purpose.  I therefore propose to my colleagues to strike down the decision of the Administrative Affairs Court and to order the restoration of the orders to restrict access to gambling websites.

Note

56.       After reading the opinion of my colleague, Justice U. Vogelman, my impression is that he was slightly tough on the State regarding the use of a third party – access providers – for purposes of exercising the authority under section 229 of the Law. I addressed this point in paragraphs 44-45 above. I will add just this: My colleague mentioned the well known distinction between delegating authority which also includes the exercise of discretion, and receiving assistance in technical matters related to exercising that authority. My colleague acknowledges that the access providers were not required to exercise discretion, and the police only requested their help in exercising its own authority – in the technical act of blocking a website identified by its IP address as specified in the order. However, according to my colleague, it is still necessary to show that the access providers agree to assist the police, and once the police imposed an obligation upon the access providers, it can no longer be considered assistance.

My view is different. First, let us assume that the police district commander seeks to order the closure of a room used for gambling. To do so he orders a third party, in possession of the keys to that place, to lock the door, without requesting consent. Is there anything wrong with that?  Had the place of gambling not been an Internet site, but rather a room in a hotel, would the police not be authorized to order a reception clerk to assist it in exercising its authority to close that room or to open it? Would this require a legislative amendment?

Second, as mentioned in para. 49 above, prior to issuing the order the access providers were given the right to present their claims; the access providers are entitled to request a second review of the decision to issue an order, and the access providers are also permitted to petition the Administrative Affairs Court. In fact, the access providers took none of these steps. They may have reconciled themselves to the orders as a token of good citizenship; they may have an interest in preventing access to gambling websites, because in doing so they reduce their exposure to law suits (for example: parents suing them for their damages as a result of their children’s Internet gambling). I will not belabor the point speculating because the facts suffice: The access providers did not institute any legal proceedings to express their objection to the orders. My colleague seeks to be meticulous about the access providers’ rights, and requires that their consent be “explicit”, “sincere and genuine willingness”. Under the circumstances, my view is different. In the Haggadah of Pessach, tomorrow night, with respect to the son who does not know how to ask, we say “you shall open your mouth for him”. By way of analogy, this is how we relate to a mute, who is incapable or does not know how to present claims or to ensure their rights are protected. Access providers do not fall into this category and I see no justification for treating them under the criterion of “you shall open your mouth for him”, when the gates of the court were open to them, and they knowingly refused to enter. More precisely, in the future too, whenever the police seek to issue an order, Internet providers will be able to object and to present their case before the order is issued, after it is issued, and also to file an administrative petition. It therefore seems that we may appropriately apply the Talmudic rule that “silence is regarded as consent” (Bavli, 87b), to infer their agreement, and thus remove the obstacle to the exercise of the police authority to restrict access to gambling websites.

 

Justice U. Vogelman

Is the District Police Commander of the Israel Police authorized to order Internet access providers to restrict Israeli users’ access to gambling sites on the Internet, under their authority under section 229(a)(1) of the Penal Law, 5737-1977 (hereinafter: the Penal Law), to close down gambling places? This is the question before us.

General

1.         The appearance of the Internet has radically changed our world.  It enables easy and convenient communication between people. Some use it for interactive entertainment; others use it for electronic trade. Many use it – occasionally on a daily basis – to send electronic mail and for sending instant messages. A countless number of websites enable video and audio, and others enable telephony, files sharing, and the like (Assaf Hardoof, Hapesha Hamekuvan) [CYBERCRIME], 114, 117 (2010)). The web also enables access to immense quantities of information pooled on the Internet – an ever growing collection of documents created by independent authors and stored in servers’ computers. In that sense, the Internet is the most outstanding feature of the “information era” in which we are living, an era in which advanced technological reality enables the immediate transfer of data on a massive scale compared to the world around us (see HCJ 3809/08 Citizens Rights Bureau v. Israel Police [12] para.1 (hereinafter: the “Big Brother” law). In this way the Internet has and continues to contribute to social, economic, scientific and cultural developments around the world. Alongside these numerous advantages, phenomena of lawbreaking are likewise are not absent from the virtual world. The Internet enables activity that is defined as a criminal offence or civil tort, as well as technologies that enable the commission of torts or offences (Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, in Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011). Illegal gambling enabled by the Internet is part of the content available on the Internet. Gambling websites offer their services from their locations in countries that permit it, and are accessible from different states around the world, including those in which participation in gambling is prohibited or restricted. Over the past few years these websites have become increasingly ubiquitous, given the high financial incentive for establishing them. Online gambling is one of the most profitable branches of trade on the Internet (Chaim Wismonsky, Sentencing Guidelines for Computer Crimes, Bar-Ilan Law Studies 24(1), 81, 88 (2008)).

2.         There is no need to elaborate on the negative social value involved in gambling. My colleague Justice N. Sohlberg also discussed this at length. This phenomenon has seen plenty of opposition, including the claim that a one’s livelihood should be based on work, a vocation or some other legitimate activity rather than easy enrichment based on luck. Whereas participating in gambling is not creative and undermines one’s work-ethic, a person participating in prohibited games may become addicted to this “occupation”, and the addict could cause extensive losses to themselves and their family and ultimately become a burden upon their family and upon society. As known, there are a few legal arrangements that permit gambling games under state auspices, encompassed in the Regulation of Gambling in Sports Act, 5727-1967 and in section 231(a) of the Penal Law. Mifal HaPayis,[4] for example, operates under such a permit. Notwithstanding that state-sponsored permitted gambling enables quick enrichment based on luck and also poses the danger of addiction, it should be distinguished from illegal gambling. Permitted gambling enables fundraising for public causes; they are not usually accompanied by negative elements such as coming under the control of organized crime, and finally, the state can oversee their mangagement and the distribution of funds (see AAA 4436/02 Tishim Kadurim [3] at p. 804,806; Ofer Grusskopf, Paternalism, Public Policy and the Government Monopoly over the Gambling Market, Hamishpat (7) 9, 28 (2002)).  As an aside, it should be noted that in many states gambling is permitted on a wider scale, but needless to say, our decision at this stage is restricted to Israeli Law and the legislatures’ values-based determinations.

3.         Techonolgically, it is now possible to block access to a particular website (compare:  Rachel Alkalai, Civil Liability of Suppliers of Internet Services for Transfer of Damaging Information, Hamishpat  (6) 151, 159 (2001)). This is the background for the orders subject to this proceeding. The events concerning us unfolded as following. At the end of June 2010 Israel Police district commanders sent warning letters to Internet access providers, notifying them of their intention to order blocking Israeli users’ access to various gambling websites (hereinafter: the warning letters). In the warning letters the district commanders specified the URL addresses and IP addresses of these websites. Notably, the Appellants claimed that the website operators also received a similar warning. The Internet access providers received a 48-hour extension to submit their challenges of the orders, and a further extension was granted to providers who so requested. One provider, Respondent 2, exercised its right to object to the orders. In a letter to the district commanders, Respondent 2 claimed that the orders because were unlawful because the district commander is only authorized to order closure of physical places; and also because the Penal Law does not authorize a district commander to use the providers to prevent users in Israel from having access to gambling websites. In August 2010 the police gave notice that it had rejected these claims and the orders forming the subject of the appeal were subsequently issued.

4.         Our decision in this appeal therefore relates to the legality of these orders. My colleague, Justice N. Sohlberg, found that there is a doubt regarding the locus standi of the Israeli Internet Association in this petition; and that there was no justification to declare the orders invalid because they were issued by the district commander without authority, as per the ruling of the District Court. Having read the comprehensive opinion by my colleague, and having considered the matter, I have concluded I cannot concur with the result that he reached. My conclusion precedes the analysis. As detailed below, in my view, section 229(a)(1) is short of authorizing the police to issue the relevant orders. In the first part of my remarks I will discuss the locus standi of the Israeli Internet Association. Next, I discuss the source for the claimed authority – section 229 of the Penal Law, and examine whether it sufficiently authorizes ordering the Internet providers to block access to gambling websites.

Locus Standi of the Public Petitioner

5.         The Israeli Internet Association is a non-profit organization that works to promote the Internet and its integration in Israel. The Association seeks to further the interests of Internet users. It has no self-interest beyond the interests it shares with the general public, or at least with significant parts thereof, and as such its petition is a “public petition”. As a rule, this Court’s jurisprudence has taken a permissive approach to standing rights of public petitioners (HCJ 5188/09 Association of Renovations Contractors for Restoration v. State of Israel  [13] para. 7.) Our firmly settled rule is that a public petition will be recognized where “the matter raised in the petition is of a public nature, which has a direct effect on advancing the rule of law and establishing policies to ensure its existence in practice” (HCJ 1/81 Shiran v. Broadcasting Authority [14] at p. 374; see also HCJ 910/86 Ressler v. Minister of Defense [15], at 462-463). Who can serve as the public petitioner? It could be any one of many people aggrieved by a certain administrative act (HCJ 287/91 Kargal Ltd v. Investments Center Council [16] at p. 862), including any one who is unable to indicate a personal interest in the matter or harm caused to them personally (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of Central Elections Committee for Sixteenth Knesset [11] at p.68)). The judicial policy on this issue was and still is influenced by fundamental value-based concepts about the role of judicial review in protecting the rule of law and supervising appropriate functioning of public administration. As such, the court should refrain from refusing the hear a person who claims that an administrative authority has violated the rule of law for the sole reason that they have no personal interest in the matter, given that this would lead to providing the authority with a stamp of approval to continue violating the rule of law (HCJ 962/02 Liran v. Attorney General [17] para. 14 (hereinafter: “Liran”). Yitzchack Zamir Administrative Power Vol.1 120-121 (2^nd ed. 2010) (hereinafter: Zamir)). Along with broadening of the scope of standing rights, the principle that the court will not generally grant a public petition where there is a particular person or body who has a direct interest in the matter should be preserved, unless they themselves have failed to petition the court for relief in the matter concerning them (see Liran [17]). In the words of former Justice M. Cheshin in HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [18]: “…in a case of this kind we would tell the public petitioner seeking to claim the right of the individual injured: Why are you meddling in a quarrel which does not involve you? If the victim did not complain about the infringement that he suffered, why have you come to provoke dispute?” (ibid., p. 443).  

6.         My colleague Justice N. Sohlberg felt that the Internet Association was “meddling in a quarrel which does not involve it”. I do not share this position. In the case before us, the Internet Association has raised grave claims about the alleged overstepping of authority in issuing orders to Internet access providers. Our concern is with a first attempt to define the scope of the district commanders’ authorities under section 229 of the Penal Law, in terms of blocking access to Internet gambling websites. This is a fundamental question. It is undisputed that the administrative authority’s activity within the boundaries of its authority are central to maintaining the rule of law. This Court has already held that claims of exceeding of authority are categorized as claims that justify broadening standing rights, for “...a court takes a more lenient attitude to the right of standing of persons not directly and substantially harmed where it concerns exceeding authority of a tribunal or agency, or where it concerns an act committed unlawfully, as distinct from other cases” (per Justice Kister in HCJ 80/70 Elizur v. Broadcasting Authority [19] at p.649; compare HCJ 852/86 Aloni v. Minister of Justice  [20], at p.63).

7.         One of the underlying considerations in Justice N. Sohlberg’s position on the Internet Association’s standing was the concern that conducting a proceeding on the part of the Internet Association might mean that the court would not be presented with the required factual foundation.  While I do not deny this concern, it seems that it need not undermine the Association’s standing.  First, we may assume that had the Appellants who participated in the proceedings in the lower court wished to clarify any factual matter or otherwise, they would have done so. For example, consider the Appellant’s complaint that the trial court was not presented with a full description of the technological ability to order blocking access to the websites. Without making an iron clad determination on the question at this stage, it suffices to say that nothing prevented the Appellants themselves from presenting data on this point, to the extent that they disputed the factual infrastructure in the petition. Second, nothing prevents the public petitioner from presenting the necessary factual foundation. In this case, too, I do not find the legal foundation presented to the Court to have hindered judicial review. Consequently, in my view, there is no ground for us to intervene in the District Court’s ruling that the Internet Association has locus standi in this proceeding.

With this in mind we can proceed to the merits of the matter.

The Question of Authority

8. Section 229(a)(1) of the Penal Law, titled “Closure of Places” provides that “A district police commander of the Israel Police may order the closing of... a place for prohibited games or a place for the conduct of lotteries or gambling”. In section 224 of the Law, a “place of prohibited games” is defined as “premises in which prohibited games are habitually conducted, whether open to the public or only to certain persons; regardless of whether those premises are also used for some other purpose”. In order to determine that the orders directed at the access providers requiring them to block access to gambling websites, are within the authority detailed in section 229 of the Law, three interpretative moves are necessary. First, we must determined that a website fits the definition of “place” as defined by the law; second, that blocking access to the website is the equivalent of “closing” as defined in the Law; and third, that the access providers can be used to exercise such authority.

9.         I am prepared to assume, in line with my colleague Justice N. Sohlberg’s holding that a website could constitute a “place” as defined in different contexts in our legislation, and that an online gambling website may be viewed as a “place of prohibited games” as defined in section 229 of the Penal Law. In this regard, I tend to agree that a purposive interpretation of this legislation, in the spirit of the times and technological progress, may indeed lead us to the conclusion my colleague reached that section 229 of the Penal Law could be also applied to “the virtual world” (compare Assaf Hardoof Criminal Law for Internet Users: The Virtual Actus Reus, HaPraklit (forthcoming) (52) 67, 122-124 (2012) (hereinafter - Hardoof)).

10.       Regarding the infringement of free expression. Internet sites indeed serve for voicing opinions and exchanging ideas, but – as is well known – the law does not treat each and every expression similarly. Even had some of the gambling websites included pictures, explanations concerning the rules of different games, information about gambling relations, chat rooms, and others – this is content located at the periphery of the protected value. As such, even if blocking gambling websites may cause blocking access to lawful content, it must be remembered that the value of the “expression”, which we are asked to protect, is not high and that the extent of protection afforded corresponds to the extent of the interest in question (HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority [21] at p. 28). Moreover, to the extent that it concerns the blocking concrete websites, it seems that the primary infringement relates to the website operators’ freedom of occupation. Our precedents have already held that this is an infringement that passes constitutional tests (Tishim Kadurim [3] at pp.814-815). However, despite this and though I am prepared to assume that the extent of the infringement of freedom of expression is limited, I think it important to note that I share the general approach of the District Court, that when dealing with the sensitive topic of blocking Internet websites, we should particularly scrutinize the concern for infringement of freedom of expression. With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, On the other hand, it is certainly possible that other cases will reache us in the future, where there may be reason to significantly broaden the scope of protection afforded to expressions displayed on any particular website. Each site has its own characteristics.

11.       Aadditionally, the sensitivity of the matter – blocking websites – has another aspect , given that the trial court also found that blocking illegal gambling websites could also block access to “innocent” sites which the order did not target.  An unintentional block may occur because a number of websites, not linked to each other, may be located on a server with the same address. Regarding this point, the trial court referred to Center for Democracy & Technology v. Pappert [31] 337, F.Supp.2d 606 (E.D Penn. 2004), in which the United States Federal Court struck down a law that enabled censorship of pedophile websites, among others because of the filtering of “innocent” websites. The Appellants, for their part, challenge this holding. They claim that from a technological perspective, the fear of blocking sites that are unconnected to gambling activity is negligible, because the access providers were requested to block websites based on the combination of the IP address and the website address (the URL). This combination of the IP address and the URL address, allegedly, minimizes any possibility of blocking innocent websites. Apparently, this point was not fully clarified because even after examining of the papers filed with the trial court, it is unclear whether it is technologically possible to block only “targeted” gambling websites, as alleged by the Appellant, or perhaps, technologically, it poses difficulties. If indeed, there is danger of blocking “innocent” websites, then this would clearly constitute a grave infringement of free expression and the right to access information – an infringement that would necessitate explicit statutory authorization as well as compliance with the limitations clause.

12.       Had the question of blocking “innocent” websites been the only difficulty arising from this case, it might have been appropriate to remand to the trial court for an in-depth examination of this issue. However, the central obstacle the Appellants face is fundamental and disconnected to the previous question, namely using a third party to execute an authority, without explicit statutory empowerment to do so. In my view, section 229 cannot be sourced to exercise the authority by giving an order directed at a third party – the Internet access providers. My colleague, Justice N. Sohlberg, found that restricting access to gambling websites through a third party does raise concerns, but in his view these difficulties do not negate the authority to do so. My view is different, and I will clarify my reasons.

13.       Our concern is with a district police commander who issued orders to the Internet access providers to block access to gambling sites. These are “personal orders” – in other words, orders directed at a particular person or entity, imposing a prohibition or a duty upon them. This is an individualized rule of conduct. This kind of order, like any administrative decision, requires a written statutory source (Zamir, at 284).  The question therefore is whether the district police commander is authorized to order the providers – a private body that is not accused of any offence – to perform various actions on behalf of the Israel Police, and to actually serve as its long arm. This authority, arguably, is found in section 229 of the Penal Law, which authorizes the district commander to order the “closure” of places used for gambling.  As mentioned, I accept that had law enforcement authorities been able to affect the closure of websites used for gambling criminalized under Israeli Law (for example by disconnecting the website from its connection to the Internet or by shutting down the server’s activity) there would be no question regarding authority.  However, in this case, the relevant websites were not actually “closed”. Instead, the district police commanders ordered third parties – the Internet access providers – to block access to those websites. The issue then becomes whether the powers granted by by section 229 support doing so.

14.       When a governmental authority is conferred with a power, according to settled case law, the authority must exercise this power itself. When the legislature specifies an authorized office holder, it is presumed the legislature wishes that particular office holder, and that alone, exercise it (HCJ 2303/90 Philipovitz v. Registrar of Companies [22] (hereinafter: Philipovitz), at p. 420; see also Daphne Barak-Erez Administrative Power, 178 -170 (hereinafter: Barak-Erez)). These comments are particularly true for criminal enforcement. In the absence of appropriate legislation, law enforcement authority cannot be given to those not part of the enforcement mechanism. Criminal enforcement authority is one of the classic authorities of the state. This authority enables the state to fulfill its responsibility to enforce criminal law through its own execution. It is the state that exercises the Government’s authority over the individual in the criminal proceeding. Therefore, the state – having established the behavioral norms and having been charged with their enforcement – is the entity directly responsible for caution and restraint required for exercising this power. It is the entity that is accountable to the public for the way it executes its powers (HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance [23], para. 28 of former President D. Beinisch’s opinon and para. 14 of Justice A. Procaccia’s opinion.)

15.       By attempting to source the authority in section 229 of the Penal Law, the State maintains it is exercising the authority by itself, and that enlisting Internet access providers to block gambling websites is merely exercising auxiliary powers that administrative agency must employ in order to exercise its authority (section 17 of the Interpretation Law, 5741-1981). I cannot accept this construction. As well known, there is a distinction between delegating authority that includes exercise discretion regarding a particular authority, and receiving assistance in technical matters related to exercising the authority (Philipovitz [22] at p. 424). Whereas the authority is permitted to receive assistance from private bodies about technical aspects of fulfilling their task, there is also a presumption against delegating authority to private entities (AAA 6848/10 Erez v. Giva’ataim [24] para 18; HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority [25] para. 18). Here, the access providers were not required to exercise discretion regarding the websites to which access was to be blocked. As such, it could be argued on its face that the authority did not delegate power but only requested assistance in exercising it, and that such assistance is in principle permitted. However, where assistance is concerned, the first and foremost element to demonstrate is that the person or entity whose assistance is required consents to assisting the authority, regardless of whether consent is motivated by commercial and economic motives (compare to Philipovitz [22] at 415), or by voluntary motives. The most important thing is that the authority may receive assistance only from those seeking to offer assistance based on pure and genuine motives and after securing explicit consent. When the authority imposes a duty on a person or entity to perform any act, one can no longer speak of assistance. In our case, the Appellants claim that the expression “closing of a place for prohibited games” mentioned in the relevant section of the Penal Law, also contains the possibility of ordering closure of access routes to that place using auxiliary authority. This is not so. Our concern is with orders that compel a private body – the Internet access providers – to “assist” the authority. Consequently the argument that the providers are an entity that grants its services voluntarily must fail. This is doubly important when the orders themselves warned, in bold print, that failure to comply with the order could constitute an offence of breaching a statutory provision, an offense of assisting the conduct of prohibited games, and an offence of assisting to maintain a place for prohibited games (sections 287, 225, and 228 of the Penal Law, combined with section 31 thereof).

16.       Additionally, I wish to clarify that were there an explicit statutory authorization it could be possible to “impose a duty” and receive assistance from any person for the purpose of realize various legislative goals. Indeed, different pieces of legislation empower an authority to order a third party to assist it, even in the criminal context. For example, section 20 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 provides that every person must help a police officer to arrest any person whom they are authorized to arrest. In a matter close to our own, a similar arrangement exists: the Criminal Procedure (Powers of Enforcement-Communication Data), 5768-2007 (also known as the “Big Brother Law”) allows Israeli investigatory authorities to be assisted by “holder[s] of a Bezeq license” (as defined there) in order to receive communications data on Bezeq subscribers for various purposes, such as discovering and preventing offences (section 1 and section 3(2) of this law). The various Internet providers are among the companies that may be required to submit communications data (see in the matter of the “Big Brother” law, para.2). This affirmation however also implies the opposite. Imposing a duty, coupled with a sanction, requires legislative bases. Without explicit legislative authority, it is impossible to charge a private entity with performing actions for the authority (compare: Civ.App. 90868/00 (District-T.A.) Netvision Ltd. v. Israel Defense Force- Military Police, para.9 (22.6.2000); Crim.F. 40206/05 (District-T.A.) State of Israel v. Philosof para. 8 b) (5.2.2007)). We are thus left with the need for explicit lawful authorization. In our case however, the language of section 229 of the Penal Law does not contain so much as the slightest hint of an authorization to impose a duty on a third party. And for good reason. Such authorization involves complex matters of law and policy.  In 2008, when the Knesset deliberated over the legislative amendments that would confer authority to block access to gambling websites, representatives of the Minister of Justice (as well as representatives of the police) expressed reservations about conferring authority as stated, for various reasons which will not be addressed here. Today the position of the authorities – with the support from the Attorney General – is different. Of course, the authorities are not bound by their former position, but the only lawful way to confer the district commander with the authority to order a third party service provider, in my view, is an amendment to primary legislation (an amendment which, needless to say, would have to satisfy the limitations clause in Basic Law: Human Dignity and Liberty). Accordingly, the manner in which the orders were issued here deviated from the principle of administrative legality, which is a fundamental norm of administrative law. “This principle teaches that the power of the public authority flows from the powers conferred upon it by law and nothing else. It is the law that grants the license to act, and defines the boundaries of its scope. This is the ABC of administrative law” (Baruch Beracha, Administrative Law, Vol.1 35 (1987); CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [26], at pp. 403-404; HCJ 5394/92 Hoppert v.'Yad Vashem' Holocaust Martyrs and Heroes Memorial Authority[27] at , 362 (1994);  HCJ 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh [28], para. 33; see also HCJ 6824/07 Mana v  Taxation Authority[29]; HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [30] at p. 910; Zamir, at 74-890; Barak-Erez at p. 97 and on). This is especially so in context of a mandatory authority, as anchored in the Penal law (see and compare Hardoof at p. 124).

17.       Could future legislation enable imposing the task of blocking gambling websites upon Internet access providers? An arrangement of this kind might take several forms. The legislature might determine that a court must grant such an order; it might grant the district police commanders – or any other authority – the authority to issue these orders, without petitioning a court (compare with “Big Brother” Law, para. 2). We assume that this legislation would also resolve additional concerns stemming from imposing the duty on access providers, while considering the costs likely involved in ensuring effective blocks, including the definition of access providers’ responsibility towards third parties, such as users and website owners whose access to them is blocked, and the like. In any event, it is clear that in our legal system the legislature is branch competent to consider the appropriate way to handle blocking access (Hardoof, ibid). Therefore we shall not jump the gun. We are not required at this point to pronounce on future legislation that has yet to be enacted and the details of remain unknown (and which, as mentioned, will also have to satisfy the limitations clause).

Other Legal Systems

18.       My colleague, Justice N. Sohlberg, found that restricting access to websites used for gambling is acceptable practice all over the world. Before we consider his comparative analysis, we should again note that the treatment of gambling in some countries is more lenient and as such no conclusive analogy can be drawn from the existing law in those countries to our legal system. On the merits of the matter, while certain countries receive assistance from Internet access providers to block gambling websites, as noted by my colleague, these are generally arrangements explicitly mandated by legislation, rather than acts designed to exercise general administrative powers. I will provide some examples.

19.       In the United States, gambling is regulated primarily at the state level rather than the federal level. There are significant differences between the various states in whether and how they view gambling and how they treat it. Federal legislation is therefore designed to assist states in enforcing local gambling laws where gambling activity extends beyond state-lines. Four primary pieces of federal legislation serve the authorities dealing with the gambling phenomenon: The first is the Federal Wire Act, of 1961 (18 U.S.C. §1084), which targets interstate gambling through linear communication. Though this law was enacted years before the Internet came into common use, and long before the online gambling became prevalent, this is legislation that authorities relied upon in the earlier days of the problem (see e.g. United States v. Cohen 260 F. 3d 68 (2d Cir. 2001)). The second act regulating the issue is the Illegal Gambling Business Act of 1970 (18 U.S.C. §1955) that was passed to battle organized crime that used gambling businesses as a main source of income, and it regulates the criminal responsibility of owners of large gambling businesses. The third is the Travel Act of 1961 (18 U.S.C. §1952), which prohibits the use of mail and interstate travel and travel outside the United States for unlawful purposes, including illegal gambling. The forth piece of legislation is the Unlawful Internet Gambling Enforcement Act (31 U.S.C. §5361-67), which prohibits gambling businesses from knowingly receiving payment linked to one’s participation in online gambling. It is interesting to note that law enforcement authorities occasionally found it difficult to rely on old statutes to receive Internet access providers’ assistance in closing gambling websites. Hence, for example, in April 2009 authorities in Minnesota instructed Internet service providers to block state residents’ access to 200 online gambling sites – an instruction given under the Federal Wire Act. However, this was challenged in court based on the argument that this act is inconsistent with the First Amendment’s protections for freedom of expression, and with the Commerce Clause (Edward Morse, Survey of Significant Developments in Internet Gambling, 65 Bus. Law, 309, 315 (2009)). In response, the Minnesota enforcement authorities withdrew the orders issues to the access providers (Lindo J. Shorey, Anthony R. Holtzman, Survey of Significant Developments in Internet Gambling 66 Bus. Law. 252 (2010)  

20.       In Australia, the Australian Communications and Media Authority’s power to order providers to block access to illegal gambling sites is regulated in detail in the “Interactive Gambling Act 2001 (sections 24-31) and in the regulatory code enacted under it (Interactive Gambling Industry Code (December 2001)). In Italy, a state my colleague referred to in his opinion, authorities’ authorization to order access providers to block illegal gambling sites is also set in legislation. Section 50(1) of Law No. 296 of 27 December 2006 (the Budget Law for 2007) established the authority of AAMS (Amministrazione Autonoma dei Monopoli di Stato), an organ of the Italian Ministry of Finance, to instruct, in an order to the communications bodies, to take measures toward removing illegal gambling websites, while setting an administrative fine of €30,000-80,000 for any breach by the communication providers. Under this law, Administrative Order No. 1034/CGV of 2 January 2007 was issued. It details the manner of exercising the power. According to the AAMS data, as of October 2010, 24000 websites were included in the “black list”. Every month hundreds of websites are added.

21.       Therefore we must conclude that even were there countries around the world that recognize the possibility of assistance from Internet access providers in blocking illegal gambling websites – this possibility is authorized there in explicit legislation. Where the subject was not regulated in explicit legislation, questions s about the power of the authorities to do so were raised in various countries, for reasons similar to those given by the District Court.

Afterword

 22.  Before concluding I would like to respond briefly to my colleague Justice N. Sohlberg’s comment regarding my position (para. 56 of his opinion). I wish to clarify that the thrust of my opinion does not turn on the interest of the access providers and the question of their concrete consent to blocking the websites. The conclusion I reached is based on the rule that an authority can only act within the boundaries of the powers the law conferred upon it, and that when exercising police powers the strict application of this rule is especially important. I would point out that I do not accept, as a given, my colleague’s assumption that a third party can be compelled to become “the long arm” of the police without its consent. Take a situation in which the reception clerk of a hotel (an example my colleague provides) fears a confrontation with criminal elements and has no interest in coming into contact with them. Would it also be possible then to compel the clerk to close the room? In my view this question is not free of doubt, but regardless, this we are required to rule on this question. In our case the totality of the circumstances that I presented and the sensitivity of the material discussed, in my view, lead to the conclusion that the existing authorization lacks the power necessary for exercising the alleged authority. 

Epilogue

I have reached the conclusion that section 229 of the Criminal Law does not authorize a district police chief to issue orders directed at Internet access providers, ordering them to block access to gambling websites. In my view, this requires express statutory authorization and the current arrangement is insufficient, because it does not contain authorization to order a third party to assist the enforcement authorities in exercising the power.

            For this reason, were my opinion to be followed, I would dismiss the appeal against the decision of the Administrative Affairs Court and would order the Appellants to pay the Respondents’ attorneys fee, for the sum of NIS 25,000.

 

                                                                                                Justice

 

President A. Grunis

My colleagues, N. Sohlberg and U. Vogelman are in dispute both about the preliminary issue of the locus standi of the Appellant and about the substantive issue of the district police commander’s authority. Regarding the first matter I see no reason to express a position. My colleague, Justice N. Sohlberg who addressed the position that the Appellant had no locus standi in the Administrative Affairs Court, analyzed the substantive issue, and concluded that it would not be proper to allow the appeal based on the preliminary issue without having considered the legality of the orders issued by the district police commanders. Under these circumstances I agree that it is appropriate to address the issue on its merits. Regarding the substantive issue, I concur with Justice U. Vogelman. That is to say, that I agree that the district commanders of the Israel Police do not currently have the authority to issue orders to Internet access providers to block access to gambling websites. The solution lies with the legislature.

 

                                                                                                            The President

 

It was decided by a majority opinion (President A. Grunis and Justice U. Vogelman) against Justice N. Sohlberg’s dissent, to dismiss the appeal, and to order the Appellants to pay the Respondent’s attorneys fees in the sum of NIS 25,000.

 

Handed down today 13th Nissan 5773 (24 March 2013).

 

 

H.C.J 100/57

H.C.J 103/57

 

           

IZHAK WEISS

v.

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 100/57

 

 

YOHANAN MILLER

v.

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 103/57

 

           

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

[February 13, 1958]

Before Olshan P., Sussman J., and Landau J.

 

 

 

Jurisdiction - Police Ordinance - Court of Discipline - Offence committed by Police in Gaza Strip after Sinai Campaign - Distinction between jurisdiction of Court of Discipline and ordinary criminal jurisdiction - Jurisdiction personal and  not territorial - International Law.

 

                The petitioners were members of the Israel Police Force. They were sent to the "Gaza strip" when it was occupied by Israel armed forces after the Sinai Campaign to do normal police work there. In contravention of an order forbidding the purchase of goods, they bought nylon material, medicines, cameras and films. They were charged before a Court of Discipline which was set up under the Police Ordinance. The petitioners contended that the court had no jurisdiction to hear charges against them because, inter alia, the Police Ordinance only dealt and could only deal with offences committed in Israel and not with offences committed in Gaza which was not part of Israel and had not even been declared to be the occupied territory of Israel. They obtained an order nisi from the High Court calling upon the Inspector General of the Israel Police and the Court of Discipline to show cause why the proceedings against the petitioners should not be discontinued.

           

            Held, discharging the orders nisi, that the jurisdiction of the Court of Discipline, which was established for preventing the lowering of the standards of the police, is not the same as ordinary criminal jurisdiction, but is personal and not territorial. The tribunal, therefore, had jurisdiction in the present case, although the offences were committed beyond the territory of Israel.

               

Palestine case referred to:

 

(1)        Privy Council Appeal 24/45 Lipshitz v. Valero & Others (1947), 14 P.L.R. 437.

 

            Israel cases referred to:

 

(2)        H.C. 279/51 Amsterdam & Others v. Minister of Finance (1952), 6 P.D. 945.

(3)        Cr. A. 126/51 EI-Tourani v. Attorney-General (1952), 6 P.D.1145.

(4)        Cr. A. 174/54 Shtampfer v. Attorney-General (1956), 10 P.D. 5.

(5)        H.C. 27/48 Lahisse v. Minister of Defence & Others (1949), 2 P.D. 153.

(6)   H.C. 268/52, H.C. 47/53 Sapoznikov & Others v. Disciplinary Tribunal (1953), 7 P.D. 656.

(7)   H.C. 13/57 Tsimoukin v. Civil Service Disciplinary Tribunal & Others (1957), 11 P.D. 856.

(8)        Cr. A. 20/53 Neiman & Others v. Attorney-General (1955), 9 P.D. 845.

(9)        C.F. 82/51 Haifa, Attorney-General v. A.B. (1951/52), 5 P.M. 123.

(10)      C.F. 208/52 Jerusalem, Shababo's Heirs & Others v. Heilin (1952/53), 8 P.M. 455.

 

English cases referred to: -

 

(11)      Niboyet v. Niboyet: (1878), 4 P.D. 1.

(12)      Re A Solicitor, Ex parte Incorporated Law Society: (1898), 1 Q.B. 331.

(13)      R. v. Casement: (1917) 1 K.B. 98.

 

Rabinovitch for the petitioners.

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

 

LANDAU, J. The question raised in both these petitions is whether a Court of Discipline of the Israel Police Force has jurisdiction to deal with offences against discipline committed by Israel policemen in the Gaza strip at the time when the strip was in the occupation of the Israel Defence Forces.

 

            Both the petitioners are serving in the Frontier Force, Israel Police. The petitioner in File No. 100/57 holds the rank of assistant district inspector and the petitioner in File No. 103/57, the rank of police sergeant. During November and December, 1956, they served with the Israel Police Force in the Gaza district. In April, 1957, they were charged together with a third policeman before a Court of Discipline of the Israel Police on nine counts in connection with the purchase of various goods (nylon cloth, medicines, cameras and films) in the months of November and December, 1956, in Gaza, contrary to the orders given by the Deputy Inspector of Police, Gaza District, and, alternatively, by the Military Governor and, alternatively, contrary to standing orders for the Gaze area, all of which prohibited the purchase of goods in Gaza by anyone not a local inhabitant. These offences were described in the indictment as disobedience to an oral order duly given by a superior officer (that is to say an oral order given by the Deputy Inspector of Police, Gaza area); and as disobedience to an order duly given in writing by a superior officer (that is to say standing orders for the Gaza area) all of which are offences against the good order and discipline of the Police Force as set out in s. 18(1)(i) of the Palestine Police Ordinance and paragraphs 1 and 84 of the addendum to the Police (Definition of Disci­plinary Offences) Rules, 1955. The tenth count was confined to the petitioner Weiss for leaving without a reasonable cause the area of duty, contrary to paragraph 7 of the addendum - in that on December 1, 1956, being a member of the Police Force and serving in Gaza, he left the Gaza area and proceeded to Migdal without reasonable cause and, finally, the eleventh count also against the same petitioner and again contrary to paragraph 1 of the addendum - in that on the same day he used a police transport car for a purpose not connected with police duty, namely transporting goods contrary to orders of police headquarters.

 

            In their petition to the court, the applicants claimed that the Court of Discipline had no jurisdiction to deal with these offences. This court has issued orders nisi against the Inspector General of the Israel Police and against the Court of Discipline to appear and show cause why the proceedings before the Court of Discipline should not be discontinued and the complaint lodged before it struck out.

           

            The Attorney-General, who represented the respondents on the return day, did not deny the facts as set out in the petition, and the difference between the parties concerns the legal questions alone. The facts necessary to understand the dispute are shortly these: -

 

            (a) On the conquest of the Gaza strip by the Israel Defence Forces, the area was placed under martial law. The Israel Police entered the district at the request of the army for the purpose of doing police duty there. In an order setting out the "powers of the Israel Police in the district of Gaza in accordance with the law in force in the district of Gaza" which was issued by the Israel Army Commander, Gaza, to the Inspector General of the Israel Police, the Army Commander, by virtue of his authority, ordered that "the Israel Police Force is as from November 15, 1956, authorised to act in the Gaza area as a police force in accordance with the Police Ordinance as it was in force in Palestine on May 15, 1948, with such amendments as were added thereafter in the Gaza District". It was further ordered, "that every policeman or officer duly appointed in Israel shall have the right in the Gaza District to exercise the same powers that he had in Israel." The petitioners claim that they went to the Gaza strip after its conquest by the Israel Army and stayed there from time to time. It must be presumed that during those times they were there on police duty.

 

(b) In the order of the Military Commander which was mentioned in the indictment against the petitioners before the Court of Discipline, the purchase or sale of anything by anyone who was not a local inhabitant of the Gaza District was forbidden except by permission of the Commander or on his behalf. The order further provided that anyone contravening its provisions would be tried, in the words of the order, "by a military court set up to try offences against the Defence (Emergency) Regulations, 1945, and shall be liable to imprisonment for up to 3 years or a fine of up to IL. 1,000.- or both". We have also been told that the standing order for the Gaza area mentioned in the indictment repeated the contents of this order of the Military Commander.

 

(c) The area of the Gaza strip had not been declared as an 'occupied area' in accordance with section 1 of the Judicial and Administrative Areas Law, 1948. In the proclamation issued by the Commander of the Israel Army in the Gaza strip on November 13, 1956, it was declared that "the laws which were in force in the District on November 1, 1956. shall remain valid in so far as they shall not be contrary to this Proclamation or other proclamations or orders that have been given or will be given by me and subject to such modifications as the establishment in the Gaza District of martial law by the Defence Army of Israel may make necessary."

 

 (d) No proclamation was made according to section 51 of the Police Ordinance 1⁾ that enabled the Police Force or any part thereof to be placed under military command.

 

            Counsel for the petitioners, Mr. Rabinovitch, claims that the above facts do not entitle the Court of Discipline to entertain jurisdiction and try his clients for what they did during their stay in the Gaza district, that the jurisdiction of the Court of Discipline was derived from section 18 of the Police Ordinance, that the whole of the Ordinance, and therefore also the disciplinary jurisdiction provided for by it, apply only to acts committed within the State of Israel, that is to say, within the area to which the law of the State of Israel applies according to the Judicial and Administrative Areas Law. For the same reason the superior officers of the appellants in the Police Force had no legal right to send them outside the State of Israel. Further, the jurisdiction of the Court of Discipline set up under the Police Ordinance was a criminal jurisdiction and the acts alleged against the petitioners in the indictment were criminal acts and for this reason as well, there was no jurisdiction to try them. Criminal jurisdiction, they submitted, is territorial, that is to say limited to acts committed within the borders of the State, unless otherwise provided in the law - and there was no such provision. If it was possible to try the petitioners at all, either it would have to be done in accordance with the Police Ordinance, and such amendments of it as were made after 15.5.48 in the Gaza district - and no such amendments were called to our attention - or the petitioners should have been tried under martial law in accordance with the Order of the Military Governor.

 

            In spite of the exhaustive arguments of counsel for the petitioners, I have come to the conclusion that these applications must be dismissed and that the Police Court of Discipline had jurisdiction to try the petitioners for the offences set out in the indictment submitted before it.

           

            Counsel for the petitioners quoted at length from the judgment of Agranat J. in Amsterdam v. Minister of Finance (2), and indeed we can gather from this illuminating precedent the following principles relevant to this case: -

           

(a) From the point of view of internal ('municipal') law there is no restriction upon the power of a legislator possessing sovereign jurisdiction to enact laws concerning property and persons even if they are situated outside the borders of the State (ibid., at pp. 965, 966).

 

(b) Nevertheless the common law (and following it also Israel Law) recognises the principle that a law passed by Parliament applies only within the territory of the State unless it is otherwise provided, either expressly or by implication (ibid., at pp. 967, 968).

 

(c) An implied intention not to follow the territorial principle can be gathered from the general purpose of the law viewed as a whole in all its sections, or from the nature of the provisions of the law under consideration (ibid. p. 968, also the conclusions at p. 971).

 

            There is no conflict between these principles and Article 38 of the Palestine Order in Council, on which counsel for the petitioner relies. This Article (as amended in 1935) provides:

           

                        "Subject to the provisions of this part of the Order and any Ordinance or Rules the civil courts hereinafter described and any other courts or tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine" (substitute Israel).

           

 ject to the provisions) were meant to restrict and not to extend what is said in the body of the Article in the same way as similar words in the first paragraph of Article 431⁾ must be read restrictively (see Lipshitz v. Valero (l)). Does this mean, then, that according to the interpretation of this Article the civil courts in Israel have territorial jurisdiction only in respect of property and persons within the State? If this were so, this would seriously limit the above principle that a sovereign legislator has power to make laws applicable to matters and persons even if they are outside the borders of the State. For what is the use of a law which is meant to apply extra-territorially if the court has no power to enforce it? Both these matters are the two sides of the same coin. This proposition would lead us to the surprising conclusion that there was no validity to such laws as section 5 of the Ottoman Code of Criminal Procedure and the Rules for serving abroad of a summons to appear for trial before a civil court.

 

            The Attorney-General contended in this connection that the words "all matters and over all persons" in Article 38 do not mean that in a trial before the court both the matter and the person concerned must be within the boundaries of the State but that it would be sufficient if one or the other was in Israel. That is to say that for the purpose of Article 38 it would be enough in the case before us if the petitioners were to be present in Israel at the time of their trial although the incidents being the subject matter of the prosecution took place outside the boundaries of the State. I personally expressed  a similar opinion in the case of the Attorney-General v. A.B. (9). The judgment in that case was confirmed in EI-Tourani v. Attorney-General (3). This would be a sufficient answer here were we to hold that in Article 38 the legislator had made provisions concerning the jurisdiction of the courts of the State over persons or matters outside the State.

 

            But on further consideration it seems to me that this proposition itself is doubtful especially as regards the question of the extraterritorial jurisdiction of the courts in criminal cases. Article 38 is phrased in language commonly used in English statutes and had the legislator intended to make rules on this matter he would no doubt have been more exact and would have said that the local courts had jurisdiction in criminal matters when the accused at the time of committing the offence was within the country. For as is well known according to English law, the jurisdiction of a court to try an accused for a crime depends first and foremost on the place where the accused was at the time when the offence was committed. But according to Article 38 the jurisdiction of the court would be made dependent on the place where the accused is found at the time of trial. From this we see that this Article is not dealing with the question of extra-territorial jurisdiction of the court but with a different question altogether - that is to say with defining the boundary line of the jurisdiction of the civil courts therein mentioned and that of the other courts with limited jurisdiction, especially the religious courts. The legislator lays down that the jurisdiction of the civil courts is general, covering all persons and all property in Palestine, subject always to such limitations as are set out in the law as, for instance, Article 51(1) in connection with the jurisdiction of the religious courts in matters of personal status. Article 38 does not deal at all with the power of the Mandatory legislator to issue laws with extra-territorial effect or with the courts to enforce these laws. In other words the emphasis in this Article is on the comprehensive nature of the jurisdiction over all persons and all property in the land but it does not exclude additional jurisdiction - which need not necessarily be comprehensive - with regard to persons or property outside the country or with regard to causes of action originating abroad.

           

            I find support for my views in the judgment of Witkon J. which was given by him whilst sitting in the District Court in the case of Shababo's Heirs v. Heilin (10). That judgment was cited with approval by this court in Shtampfer v. Attorney-General (4). The subject-matter of that case was the immunity enjoyed by foreign diplomats and it was contended that Article 38 repudiated this claim to immunity. It is true that that case was different from the one before us because there an attempt was made to limit the comprehensive scope of the jurisdiction of the courts over all persons within the boundaries of the State. That contention, of course, could not possibly stand because Article 38 is also subject to and is restricted by Article 46 of the Order in Council 1⁾ which transfers to the body of the local law the rules of the common law relating to immunity of foreign diplomats. But in the course of his judgment Witkon. J. said : -

 

            "Article 38 is a kind of introduction to that part of the Order in Council which deals with the administration of justice by the courts and the division of their jurisdictions between the various courts themselves. The article is not meant to lay down rules in the field of International Law."

           

            With respect, I should like to agree with those words which also apply to our case. Consequently therefore (so long as there is no law enacted specifically on the subject) the general principles of the common law with regard to extending the extra-territorial jurisdiction of the local courts apply in this country. And this is not because the first words in Article 38 are directed to Article 46 but because of the provisions of Article 46 itself without any reference at all to Article 38.

           

            The law applying in the case before us is the law which was in force before the enactment of the Courts Law, 1957. In this connection however it is necessary to point out that the Israel legislator was of the opinion, it would seem, that the introductory proviso in Article 38 could be dispensed with altogether, for this Article was repealed by s. 48(8) of the Courts Law without being re-enacted.

           

            Counsel for the petitioners contends further that the jurisdiction of the Police Court of Discipline is by its very nature criminal and that, unless the law expressly provides otherwise, criminal jurisdiction is territorial and that the Police Ordinance has no such provision at all; on the contrary it has clear indications that it was intended to apply only within the confines of the territory of the State.

           

            Counsel for the petitioners is correct when he says that the basic principle of the criminal jurisdiction of the court is territorial. Such is the English law (see Halsbury, third edition, Vol. 10, p. 317, s. 579) and we have the same principle as it came to us through section 6 of the Criminal Code Ordinance. 1936. But this law is not without its exceptions. There are such exceptions in English law which were created by special statutes to cover certain crimes which were committed by British subjects outside England such as, for example, treason, homicide, bigamy (Halsbury, ibid., at p. 322 ff.). In Niboyet v. Niboyet (11), Brett, L. J. laid down the principle as follows: -

 

            "All criminal statutes are in their terms general but they apply only to offences committed within the terri­tory (of the State) or by British subjects" (p. 20).

           

From the historical point of view the personal principle preceded the territorial in criminal law, having its origin in the feudal notion of the tie of allegiance binding the king and his subjects. As we have said the principle continues to exist even today in connection with certain crimes and it does so side by side with the territorial principle which has in these days become more important. According to International Law too every State is entitled to exercise its legal jurisdiction over its subjects even whilst they are abroad. See for instance how Schwarzenberger in A Manual of International Law, third edition, p. 42, explains the historical transition from the personal principle to the territorial principle in modern times. He writes as follows: -

 

            "Thus the conception of territorial - as distinct from personal - sovereignty and jurisdiction developed, and the notion of personal sovereignty was pushed into the background. It would not, however, be correct to assume that the conception of territorial jurisdiction completely replaced that of personal jurisdiction. In modern international law the conceptions of personal and territorial jurisdiction exist side by side, though with the emphasis on territorial sovereignty."

 

And Oppenheim in the eighth edition of his book, vol. I at p. 330 says: -

 

            "The Law of Nations does not prevent a State from exercising jurisdiction within its own territory over its subjects travelling or residing abroad, since they remain under its personal supremacy."

 

            Thus our own Criminal Code Ordinance in section 3 (b)1⁾ strays from the territorial principle in prosecutions for crime and the same is the case in Article 3 of the Army Code (see Lahisse v. Minister of Defence (5), paragraph 31 of the judgment at p. 166). Further, the Israel legislator has recently abandoned the territorial principle to an even greater extent in the Criminal Amendment (Offences Committed Abroad) Law, 1955.

           

            I have dwelt at length on these matters because as we shall see they are of some importance: not that I am to be taken as agreeing with the contention of counsel for the petitioners that trials before a Police Court of Discipline are subject to the principle of territorial jurisdiction of criminal trials. Counsel for the petitioners relies on the judgment of Sussman, J. in Sapoznikov v. Disciplinary Tribunal (6), which upheld the jurisdiction of the same Court of Discipline to deal with an offence "of a civil nature", such as rape, although purporting to be an offence against discipline for acting in a manner likely to bring discredit on the good name of the force (ibid. at p. 662). The view was expressed in that judgment (at the end of p. 661) that a policeman who had been convicted in such a prosecution before a Court of Discipline could plead "autrefois convict" in a prosecution for the same offence before an ordinary court. The President of the court, dissenting, differed from this way of interpreting the law which would give to a policeman a special status that was better than that of an ordinary citizen as regards responsibilty for criminal acts that had nothing to do with his police duties (ibid. at p. 665). Counsel for the petitioners also cited the words of my judgment in Tsimoukin v. Civil Service Disciplinary Tribunal (7), where I respectfully agreed with the opinion of Sussman J. that the trial of a policeman before a Court of Discipline might induce an ordinary court to accept a plea of 'double jeopardy' and I added that such a trial was "very much like an ordinary criminal trial". Such a similarity no doubt exists especially in 'civil crimes' that are triable before a Court of Discipline. But we must not conclude from this that because the methods of the trials are similar, that trial before a Court of Discipline is in its nature essentially identical with that of an ordinary criminal trial. Regarding this point Cheshin, D.P. said this in Tsimoukin v. Civil Service Disciplinary Tribunal (7), at p. 861: -

 

            "The object of a trial before a criminal court is not the same as that of a trial before a court of discipline. In a criminal prosecution the purpose is to find out whether the accused has broken the law and whether he should receive the punishment prescribed by law; whereas the purpose of a trial before a court of discipline is not so much to punish the 'criminal' as to establish first and foremost whether he is still worthy of the trust which the authorities and the public had placed in him before he came under suspicion."

 

            We have to note in this connection that although according to section 18 (6) of the Police Ordinance the accused who is charged before a Court of Discipline is liable to both imprisonment and fine, according to section 18 (7) he is liable to dismissal which is the penalty par excellence of proceedings before a Court of Discipline.

           

            In a judgment on the same subject, I said in Tsimoukin v. Civil Service Tribunal (7), supra, that "proceedings before a Court of Discipline are sui generic and the usual notions regarding criminal or civil proceedings do not fit them completely". In spite of the fact, undesirable though it may be, that a policeman who has committed a crime might escape punishment in a prosecution for the same act before an ordinary court after a trial before a Court of Discipline, the purpose of proceedings before a Court of Discipline is completely different from that of regular criminal proceedings, in that it is meant to preserve the discipline and good order of the Police Force and to eliminate all unworthy elements from its ranks.

           

            Because of this difference in purpose, one cannot apply to trials before a Court of Discipline the principle of territorial jurisdiction which is characteristic of criminal trials - that is that criminal enactments are applicable only to offences committed within the State unless otherwise specifically provided.

           

            Because of this difference, the position is the same even if the acts in respect of which the petitioners were accused may also possibly be criminal offences against the Defence (Emergency) Regulations, 1945, in accordance with the order of the Military Commander. For at the hearing before the Court of Discipline these acts will be considered not from the point of view of their being crimes as of their being offences against discipline, in that the petitioners disobeyed orders which were given to them in their capacity as policemen.

 

            We return therefore to the general basic principle set out above following the judgment in Amsterdam v. Minister of Finance (2), that every enactment is territorial in application unless otherwise expressly or by implication stated; that the intention not to follow the territorial principle can also be gathered from the general object of the law as appearing in all its several parts or from the nature of the particular legal provision that is under the consideration of the court. In connection with this point, counsel for the petitioners, as will be remembered, contended that the Police Ordinance not only does not disclose that it meant to disregard the territorial principle but that, on the contrary, it had many sections that supported it. For instance, it is said in section 3 that "there shall be established in Palestine a Force to be known as the Police Force" and section 16 provides that "A police officer, when in Palestine shall..... be considered to be always on duty: he may at any time be employed in any part of Palestine" (now Israel).

           

            This being the case, Mr. Rabinovitch contends that the service of the petitioners by its very nature is confined to the area where they are obliged to serve and it was illegal to have sent them outside that area and having been sent there they did not take with them the special law, the Police Ordinance, that applies to them, and with it the jurisdiction of a Court of Discipline set up under it.

           

            The Attorney-General's reply to this contention is that no matter how the Police Ordinance was meant to be interpreted in the days of the Mandate, the fact that there is now a sovereign State makes all the difference. And from now on we have to consider the Ordinance as authorising the employment for service of the Israel Police Force in all areas, even outside the boundaries of the State, which are in fact under the control of the State and where the Israel authorities are bound to keep the peace among civilians. This is the conclusion of the Attorney-General who considers it to be in accordance with International Law which permits a State to send its armed forces outside its boundaries.

 

            This answer to the contention of counsel for the petitioners does not seem to me to be convincing. It is possible that the "territorial" sections of the Police Ordinance were originally enacted so that the law should be in harmony with the obligations of Palestine owing to its status as a country under mandate. But does this entitle us to breathe new life into these sections to make them fit the changes brought about by the creation of the State, as the Attorney-General is asking us to do ? There would of course have been no problem on this point had Israel proclaimed the Gaza strip to be occupied territory. But the Minister of Defence has refrained from issuing such a proclamation. The question therefore is whether there is any legal principle under which one can consider a policeman who is serving in an area which is in fact under the control of the State as if he were serving within the State itself. I have found no such rule either in our own municipal law or in International Law. The function of the police is of course to keep order within the State whereas it is the duty of the army to preserve the peace against all dangers from without. When a State sends its army outside its borders and conquers additional territory which it occupies without extending its sovereignty over it, it is occupying the territory through its army which sets up military rule therein. (See Oppenheim, seventh edition, vol. II, p. 438). Israel too has acted in this way with regard to the Gaza strip, that is to say it established there a military government from which all other authority was derived. The civilian police also- functioned in fact within this framework, for this force had been asked to operate there by the army, under whose command it was placed. And within this framework it carried out police duties among the local inhabitants. The Attorney-General has contended that the police are part of the armed forces of the State which are bound to serve also outside its borders and which in any case carry with them the prerogative of the State to try them wherever they are. As far as the army is concerned, it is true that this principle has received expression in sections 13 and 14 of the Military Justice Law, 1955, which provide for trial by court martial of members of the Israel Army in respect of military and other offences committed whether '"inside or outside" the boundaries of the State.

           

            But where is the authority for the proposition that for this purpose the civil police are part of the armed forces of the State? Section 51 of the Police Ordinance enables the Minister of Police during a war or an emergency to issue a proclamation declaring that the Police Force or some part of it is to be considered as a military unit; and on the declaration being made certain consequences follow as enumerated in the relevant section of the Ordinance. Such a declaration was never issued in connection with the Israel Police in the Gaza strip. Had it been, it is possible that those policemen who had been sent there for service would have been considered as soldiers also in this respect that they too were under an obligation to serve outside the area where Israel law applies. In the absence of such a proclamation, there was no legal authority to compel them to serve anywhere except within that part of the territory of the State where a policeman is bound to serve in accordance with the Police Ordinance. We cannot therefore consider this as being the source from which the Court of Discipline derived the necessary jurisdiction to try the petitioners whilst they were in the Gaza strip.

 

            But this does not end the matter. They were under no duty to serve in the Gaza strip and had the petitioners refused at the proper time to be transferred there, in my opinion, it would not have been considered on their part as a breach of duty. But nothing prevented them from agreeing of their own free will to undertake this additional service. A policeman may also volunteer to perform a service outside the State. It is sometimes necessary, for instance, to send police officers abroad, to make contact with the police of another State in connection with the investigation of a crime which a local resident is suspected of having committed. A policeman who undertakes such a task does not cease to be a policeman when abroad. I see no difference in principle between such a case and what happened here - except on a bigger scale - with regard to the Israel Police Force serving in the Gaza strip, that is to say in a place in Palestine outside the area where the law of the State of Israel applies. We have not heard that the petitioners objected to or protested against their being sent to the Gaza strip. In their application they say simply that "they went there". It seems that they must be considered as volunteers who undertook to perform a service which they were not obliged to do. But from its nature this was police work. If we come to the conclusion that the jurisdiction of a Court of Discipline is not territorial but personal in character, that is to say that it also exists in relation to matters connected with the behaviour of a policeman, wherever he is, even outside the State, then there is no difference between a policeman who went there under an order or as a volunteer. We dealt with a similar problem - though in another field - in Neiman v. Attorney-General (8). There the appellant, a clerk of the Jerusalem Municipality, claimed that he could not be held guilty under section 140 of the Criminal Code Ordinance, 1936 (Breaches of Trust by Public Officers) because the act was committed in Bet-Mazmil which was outside the area of the Municipality of Jerusalem. In rejecting this claim, this court said (at p. 857) :

 

            "Mr. Meridor was unable to cite any authority according to which an official, such as the appellant, would be exempt from liability if he could show that what he did was outside the confines of jurisdiction of the public body employing him..... The work at Bet-Mazmil was done in accordance with the decision of the Municipality, the way it was done was no different at all from the usual way of doing such things at the Municipality and the second appellant did this work in the course of his usual duties."

 

            And the same can be said in our case: the duties with which the petitioners were charged were ordinary police duties which had to be performed in accordance with the rules of discipline when carrying them out.

           

            We thus come to the decisive question in its simplest form : What is the nature, then, of a trial before a police Court of Discipline - is it connected with the territory of the State or is it per­sonal, that is connected with the man ? Counsel for the parties have carefully searched for precedents dealing directly with this question and have found none. I too have searched to no effect. The Attorney-General has mentioned an English judgment in re A Solicitor (12). In that case the English court was asked to revoke the licence of an English solicitor because of his misconduct in South Africa. The application was refused because the court was not prepared to accept, as the only ground for its decision, the judgment of the court of South Africa which had revoked the licence of the solicitor in that country. But this judgment can also be taken as ruling - although the question was not specifically considered - that had there been sufficient proof before the English court it would not have hesitated in granting the application, although the charge was in respect of an offence against discipline which was committed abroad. Wright, J. said at p. 662:

           

            "I do not say at all that there may not be cases where a solicitor is struck off the rolls by a foreign court when this court ought to - and probably would act - if the facts were brought before it in a proper way and if it could see clearly what it was that the solicitor had done....."

           

            In order to test the nature of disciplinary jurisdiction in the absence of direct authority we can only solve the problem in the light of general considerations and by reference to two opposing principles- the territorial principle and the personal principle - and decide which of these two is more appropriate to the jurisdiction in question.

 

            As I have already hinted, the territorial principle of jurisdiction is strongly linked to the notion of sovereignty of a State over its territory, whereas the personal principle is connected with the tie of personal allegiance existing between the sovereign and his subject. When we base jurisdiction on the notion of the sovereignty of each State within its own territory, it becomes clear that on the one hand the State is entitled to adjudicate on all matters within its territory, irrespective of the persons concerned and that on the other, an offence or some other act committed outside that territory must, as a matter of course, come within the jurisdiction of the foreign State where the offence or other act took place. An ideal division of jurisdiction between States based purely on territorial principles would require each State, in its administration of justice, to confine itself to matters taking place within its own borders and every time a State went beyond these it would be considered as interfering in the internal affairs of another State. (We have seen that this principle is not carried out in practice in its entirety but that it is sometimes mixed with elements having the characteristics of personal jurisdiction which result in fact in parallel proceedings in the courts of two States.) But when does this happen ? When the other State also claims for itself the right to try the persons concerned in the same matter. Every civilized State for example is prompt in punishing crimes committed within its borders and is willing to enforce civil obligations created there. But when the foreign State is indifferent to the same act and does not react at all to it, no clash need be feared between two different judicial jurisdictions. Now every trial by a Court of Discipline is held within the framework of some organisation which is either international or is limited to one State. If international, then it certainly is not confined to the area of any one State and if it is national no other State would have any interest in its doings. In any case no conflict can arise between two judicial jurisdictions. If, for instance, an Israel policeman committed an act which was a breach of discipline, whilst in France, that aspect of his behaviour would be of no interest to France.

 

            Further, as the Attorney-General has pointed out, the Gaza strip is not within the sovereign jurisdiction of any other State and for this reason too one cannot speak here of a conflict with the lawful jurisdiction of another State.

           

            So far I have dealt only with the point of inter-State relations according to which there is no objection to the extension of the jurisdiction of Courts of Discipline to deal with acts that took place outside the borders of the State. But that does not cover the whole problem. For the basic principle is that prima facie all jurisdiction is territorial and before it can be extended beyond the boundaries of the State, one has to show clearly that this was the intention of the law either expressed or implied. I am of the opinion that such an intention can also be implied from the very nature of a trial before a Court of Discipline. As I have said such a trial is held within the framework of some special organisation and concerns no one who does not personally belong to this particular body. Its purpose is to prevent the lowering of the professional standards of members of the organisation. Each such member has special duties and in consequence generally enjoys special privileges, all of which require the upholding of a special standard to ensure the effective functioning of the organisation and the protection of its reputation vis-a-vis others. These rights and duties too are personal to the member of the organisation and they forge a special tie of allegiance between him and it. One may draw in this connection a close comparison with the duty of personal allegiance which is at the root of jurisdiction, based on the personal principle. Here is a description by an ancient English writer explaining why the jurisdiction in a trial for high treason is personal [Foster in Crown Law, quoted in R. v. Casement (13)]:

 

            "With regard to natural born subjects there can be no doubt. They owe allegiance to the Crown at all times and in all places. ...

 

            Natural allegiance is founded in the relation every man standing in to the Crown, considered as the head of that society whereof he is born a member; and on the peculiar privileges he derived from that relation..."

           

            When we divest this conception of its 'royal' apparel does it not also fit the relationship of loyalty, to protect which, trial before a Court of Discipline is provided ? It is clear that such a relationship cannot be subject to any territorial limitation as it is necessary to protect the professional standards of a man who is subject to the discipline of an organisation "at all times and in all places" wherever he may be carrying out his duties. It would be unreasonable to give the law another interpretation whereby a policeman on police duty abroad would move about in a vacuum, as it were, as far as discipline was concerned.

           

            Finally I will answer briefly two further contentions of counsel for the petitioners: First that the petitioners should have been court-martialled for contravening the order of the Military Governor. Possibly they were also liable at the time to be called to account for the actions of which they are accused by being prosecuted before the Israel Military Court in the Gaza strip; but this was not done. The fact that this method was not used can certainly not prevent their being charged before a Court of Discipline for breach of discipline and misbehaviour which the actions themselves imply. The second contention of the petitioners was that the Court of Discipline when trying them should apply, with all its amendments which are unknown to us, the Police Ordinance as it was in force in the Gaza strip on the eve of its conquest by the Israel Army. This contention is based on the orders of the Military Governor for the Gaza District which authorised the Israel Police Force to operate as the 'Gaza Police Force' in accordance with the Police Ordinance with all its amendments made for Gaza. But this law applied in relation to the powers of the Gaza Police vis-a-vis the public when dealing with the local inhabitants. Vis-a-vis the Force the petitioners remained Israel policemen even whilst serving in the Gaza Police and as such they continued to be subject to the jurisdiction of a Court of Discipline to try them in accordance with the Police Ordinance as it was in force in the State of Israel.

           

            I am accordingy of the opinion that the orders nisi must be set aside, and the applications of both petitioners dismissed.

           

SUSSMAN J. I concur.

 

 OLSHAN. P. I concur. I am of the opinion that the question whether a person who is serving in the Police Force can be sent abroad in connection with his police duties, without his own consent, needs further consideration.

 

Order nisi discharged.

Judgment given on February 13, 1958.

 

 

 

 

 

 

 

 

 

 

 

 

Petition denied.

20 Adar II 5765.

31 March 2005.

 

 

 

 

 

 

 

 

 

 

 

Appeal allowed.

29 Shevat 5766.

27 February 2006.

C.A. 191/51

       

LEIB SKORNIK

v.

MIRIAM SKORNIK

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[February 19, 1954]

Before Olshan D.P., Agranat J. and Witkon J.

 

 

Family law - Husband and wife - Civil marriage according to law of domicile - No religious ceremony - Validity of marriage - Private International Law - Maintenance - Local law - Jewish law.

 

            The parties were married in Poland on April 2, 1948, according to civil law, without a religious ceremony. They were at that time Polish citizens who were domiciled in Poland, and they remained domiciled in that country after their marriage. They immigrated to Israel in 1950 and thereupon became stateless. Thereafter the husband instituted action against the wife in a District Court for the return of effects or payment of their value, and the wife counterclaimed for maintenance. It was held in the District Court that, in accordance with the principles of international law, the law to be applied in regard to the validity of the marriage was Polish law, and that the law to be applied in regard to the husband's liability for maintenance was Jewish law; that a valid marriage had been contracted; that the claim - based as it was on the Civil Wrongs Ordinance, 1944, - could not be maintained, and that the wife was entitled to maintenance.

           

            The husband appealed.

 

HELD: Per Olshan D.P.

 

(1) That whether the law to be applied regarding the validity of the marriage was Polish law or Jewish law, a valid marriage had been contracted, as the presumption in favour of such a marriage had not been rebutted.

 

(2) Semble, that the District Court had been entitled to apply private international law, and that it had correctly decided that the validity of the marriage was to be determined in accordance with Polish law.

 

Per Agranat J.

 

(l) That the District Court had correctly applied the principles of private international law, and that the validity of the marriage was to be determined in accordance with Polish law.

 

(2) That since the operative facts which constituted the cause of action of the claim all took place in Israel, such claim must be dealt with in accordance with local law, and that having regard to the provisions of the Civil Wrongs Ordinance, 1944, the claim must fail.

 

(3) That the wife's right to maintenance was to be decided in accordance with Polish law but that the amount of maintenance to be payable, being a question of remedy, was to be decided in accordance with local law, namely, Jewish law.

 

Per Witkon J.

 

(1) That the principles of private international law take precedence over all other laws, that the validity of the marriage was to be determined according to Polish law, and that according to that law there had been a valid marriage.

 

(2) That the right to maintenance of a wife married under Jewish law must be applied in favour of a wife whose marriage is based upon foreign law which is recognised by local law, and

 

(3) (dissenting on this point from the opinion of Olshan D.P.) that if the validity of the marriage was to be tested by Jewish law, there was no reason for disturbing the finding of the District Court that that presumption in favour of such a marriage had been successfully rebutted by the husband.

 

Palestine cases referred to:

 

(1)        C.A. 195/43 - Gertrud Freyberger v. Otto Friedman ; (1943), 10 P.L.R. 405.

(2)        C.A. 122/44 - Haim Cohen v. Rachel Ludmirer; (1944), 11 P.L.R. 522.

(3)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Swalboim; (1940), 7 P.L.R. 20.

(4)   C.A. 234/45 - Ursula Tennenbaum v. Joseph Tennenbaum; (1945), S.D.C. 431; (1946), 13 P.L.R. 201 (on appeal).

(5)   C.A. 158/37 - Leib Neussihin and Others v. Miriam Neussihin; (1937), 4 P.L.R. 373.

(6)        C.A. 11/41 - Eliyahu Bichovski v. Nitsa Lambi-Bichovski; (1941), 8 P.L.R. 241.

(7)        Probate 290/45 - Levin v. Goldberg and Another; (1946), S.D.C. 320.

 

Israel cases referred to:

 

(8)        C.A. 26/51 - Shimon Cotic v. Tsila (Tsipa) Wolfsohn, (1951) 5 P.D. 1341.

(9)   C.A. 238/53 - Aharon Cohen and Bella Bousslik v. Attorney-General; (1954), 8 P.D. 4.

(10)      C.A. 87/49 - Zvi Levin v. Haya Naha Levin; (1951) 5 P.D. 921.

(11)      C.A. 100/49 - Estate of Meir Miller, Deceased v. Rivka Miller; (1951), 5 P.D. 1301.

(12) C.A. 98/47 - Ernst Halo v. Alfreda Yohanna Halo (known as Alfreda Yohanna Lange) and Others; (1948/49), 1 P.E. 195.

(13)      S.T. 1/49 - Aharon Rosenbaum v. Sheina Miriam Rosenbaum; (1953), 7 P.D. 1037.

(14) C.C. M/48/201 - Dr. Gershon Burg v. The Attorney-General;(1919), 2 P.M. 24.

 

English cases referred to:

 

(15) Spivack v. Spivack; (1930), 142 L.T. 492.

(16) Srini Vasan (otherwise Clayton) v. Srini Vasan; [1945] 2 All E.R. 21.

(17) Baindail (otherwise Lawson) v. Baindail; [1946] 1 All E.R. 342.

(18) In re Goodman's Trusts; (1881), 17 Ch.D. 266.

(19) Salvesen or Von Lorang v. Administrator of Austrian Property; [1927] A.C. 641.

(20) Pugh v. Pugh; [1951] 2 All E.R. 680.

(21) Brook v. Brook; (1858), 3 Sm. & G. 481; 65 E.R. 746; affd. H.L., (1861), 9 H.L. Cas. 193; 11 E.R. 703.

(22) In re Paine. In re Williams, Griffith v. Waterhouse; [1940]         Ch. 46.

(23) Conway v. Beazley; (1831), 3 Hag. Ecc. 639; 162 E.R. 1292.

(24) De Reneville v. De Reneville; [1948] P. 100.

(25) In re Luck's Settlement Trusts; (1940) Ch. 864.

(26) J. D' Almeida Araujo LDA. v. Sir Frederick Becker and Co. Ltd.; [1953] 2 All E.R. 288.

(27) Dean v. Dean; [1923] P. 172.

(28) The Colorado; [1923] P. 102.

(29) In re De Wilton; De Wilton v. Montefiori; (1900) 2 Ch. 481.

(30) Lindo v. Belisario; (1795), 1 Hag. Con. 216; 161 E.R. 530.

 

Sheps for the appellant.

Marks for the respondent.

 

OLSHAN D.P. This is an appeal from a judgment of the District Court of Tel Aviv of October 12, 1951, dismissing a claim of the appellant which he had brought against the respondent for the return of effects, or payment of their value to the sum of approximately IL. 404.-, and allowing the counter-claim of the respondent for her maintenance.

 

            Both parties resided permanently in Poland and were nationals of that country. On April 2, 1948, the parties were married in Poland according to civil law, without a religious ceremony. The learned judge held in his judgment that "the couple at first thought of living together in Warsaw, but since Poland had not yet been delivered from the scourge of 'key-money', and since they had already begun to think of leaving that country, they decided that for the time being they would each continue to live in his or her own birthplace - in the case of the appellant, the town of Chekhanov and in the case of the respondent, the town of Gleivitz near Katovitz, and that they would continue to see each other from time to time, which they did."

           

            The couple came to Israel on March 17, 1950, with a view to settling here. It would appear that on reaching Israel they lost their Polish nationality and became stateless. The couple lived at first in an immigrants' camp, but afterwards they left the camp without providing themselves with a permanent place of residence.

           

            According to the respondent, she agreed to leave the immigrants' camp because the appellant promised her to obtain a flat, and because of his argument that so long as they lived in an immigrants' camp he would be unable to find work. Some time after they left the immigrants' camp, quarrels broke out between the parties. According to the respondent, the appellant did find work, but refused to support her or to look for a place in which she could live, and caused her untold suffering. These quarrels brought the parties to court. In August 1950, the appellant lodged his claim and in September, 1950, the respondent filed her defence and counterclaim.

           

            In connection with the claim and counter-claim, the question arose whether a marriage subsisted between the parties. It was submitted by the appellant that since the parties were stateless they were subject to Jewish law and that, in consequence, a marriage which had been celebrated, according to Polish law without "Hupa Ve-Kiddushin"1⁾, could not be recognised in Israel. The appellant also attempted to show that the marriage was not valid in Poland in the light of the facts of the case; but without success. The submission in law of the appellant set out above, became the real dispute between the parties, and is also the main problem in the appeal before us. If the marriage was valid, there was no basis for the appellant's claim - based as it was, in the opinion of the learned judge, on the Civil Wrongs Ordinance, 1944 - and he should be ordered to pay maintenance, while if the marriage was invalid, the claim was well-founded, and the counter-claim should be dismissed.

           

            The question before us is: what law is applicable to determine the validity of the marriage?

           

            The learned judge held, in a carefully reasoned judgment, that the marriage was valid, and that the parties are to be regarded as man and wife. The approach of the learned judge to the problem may be summed up very shortly. In accordance with the principles of private international law, the law to be applied regarding the validity of the marriage is the law under which the marriage was celebrated, that is to say, Polish law; the law to be applied regarding the appellant's liability for maintenance is Jewish law. In other words, it must be assumed that the parties are man and wife, and it must then be determined in accordance with Jewish law if the behaviour of the appellant towards his wife in Israel, which preceded the filing by her of the counter-claim, entitles her to maintenance under that law.

 

            Before reaching the conclusion stated, the learned judge analysed the question of the validity of the marriage from the point of view of Jewish law in the following terms:

           

            "As against this, I agree that the parties never intended that their marriage, which is valid according to the personal law which applied to them during their residence in Poland, should be Kiddushin within the meaning of Jewish law. In the absence of other evidence, it is sufficient for me to quote from the evidence of the plaintiff and of the defendant on this subject. On page 2 of the record the plaintiff said: 'There were rabbis in Poland. I do not believe in God and no religious marriage therefore was celebrated.' And further, on the same page: 'I did not celebrate a religious marriage because such marriages mean nothing to me.' The defendant said on page 20: - 'I requested a Hupa, but he said there was no necessity.' I conclude from the evidence of the parties that there was nothing to prevent the celebration in Poland of a Jewish marriage, although it may have been impossible to dispense with a marriage by Polish law, but I do not believe the defendant, who sought to convince me that she, and to a lesser extent her husband, were in fact religious. In regard to this point I accept the version of the plaintiff without reservation, and I am satisfied that the parties gave no thought whatever to the Jewish religious aspect of their uni on. It was the intention of the parties to achieve the status of marriage in accordance with the provisions of Polish civil law, and of that law alone.

 

            Since the parties at no time intended to be married by Kiddushin according to Jewish law, that law will not regard their union as a marriage. The cohabitation of the plaintiff and the defendant cannot be regarded as cohabitation for the purposes of Kiddushin, though it certainly was cohabitation for the purposes of marriage under Polish civil law.

           

            There is no presumption to assist the defendant in her submission that it must at least be presumed that she has been married by Kiddushin according to Jewish law. From the point of view of Jewish law the parties have never enjoyed the status of a married couple."

           

            In Jewish law there is a presumption, of which a hint is given above, to the effect that "a man does not indulge in sexual intercourse for the purpose of sin", and that there is, therefore, with cohabitation "an intention of marriage." In other words, when a man cohabits the law presumes that he has marriage in mind, and a bill of divorcement is therefore necessary to dissolve the marriage. This subject has been a bone of contention for many centuries between those who argue for a strict interpretation of the law and those who wish to be more lenient regarding the question whether a woman, who has not been married according to Jewish rites, does or does not require a divorce in order to marry some other person. According to those who take a strict view of the law, a divorce is necessary because of the presumed intention to marry by way of cohabitation. On the other hand, according to those who argue for the more lenient view, the woman does not require a divorce if there was no reason to believe that there was any intention to marry. In other words, those who take the strict view demand a divorce in the absence of a clear foundation for the belief that there was no intention of marriage, while those who argue for the more lenient view do not demand a granting of divorce where there is no evidence of an intention to marry. Both these schools of thought, however, recognise the presumption referred to, and the whole dispute relates only to the necessity for the granting of a divorce. Both schools require that a searching enquiry be conducted before giving a decision in any particular case, and it is very doubtful if they would rely on the evidence of a husband who appears before them as a party interested in setting the marriage aside. In the absence of any other evidence, it is doubtful if even those who take the more lenient view would agree to come to a decision purely upon the basis of the evidence of the husband interested in setting aside the marriage, who appears before them saying, "I do not accept the presumption, and you cannot therefore attribute to me any intention of marriage according to Jewish rites." After all, in Jewish law, as is well known, a litigant is not a competent witness. Further, he puts himself in the wrong by denying a presumption which is one recognised by law. If, however, it be said that this is a matter which belongs to the law of evidence, and that in that respect the learned judge was not bound by Jewish law (Cotic v. Wolfsohn (8)), I doubt whether according to secular law also the learned judge would have been able to rely merely upon the evidence of the appellant (the plaintiff) in the absence of any other evidence.

 

            It must not be forgotten that the question whether the absence of a Jewish form of marriage was intentional or due to an oversight, or because of an objection to the expression of a religious intention, is a question of fact, and that in this case additional evidence in support of that of the appellant - an interested party - was required, before the matter could be properly decided.

           

            In speaking of the appellant (before the passage quoted above), the learned judge says: -

           

            "I am surprised to what depths he fell. He had heard from his lawyer that according to Jewish law - if it applies to the personal status of the litigant - his union with the defendant was not within the framework of a marriage at all. He had heard that Jewish law recognises cohabitation as a basis for marriage, and when a man and woman live together for some time and the reputation in the community is that they are husband and wife, there arises a presumption of a valid marriage. Thereupon he so lowered himself as to commit perjury before me and swear that at no time did he regard the defendant as his wife, but as his mistress. I do not, of course, believe one word of this. Let there be no misunderstanding whatsoever. The submissions which a litigant desires to make are a matter for his own conscience - if he has a conscience. The submission of the plaintiff that Jewish law - and Jewish law alone - applies to the personal status of the parties, and that according to that law they never enjoyed the status of a married couple, is a legitimate submission. I am about to deal with it in all seriousness. It is one thing to submit that a marriage which is valid at the place where it was celebrated is not recognised by the law which applies to their personal situation; it is quite another to give evidence which is a tissue of lies and which purports to lay down that from the outset, and from the subjective point of view of the parties or of one of them, there was no intention of a marriage even within the meaning of the law which applied at the place where the marriage was celebrated. I have no doubt that from the point of view of Polish law during the period of their residence in Poland, the parties contracted a valid marriage."

           

            I do not quote the above passage in order to reach the conclusion that the marriage was also valid according to Jewish law, nor do I express any opinion on that point. The question of whether the respondent will or will not require a divorce should she wish to marry another man does not arise for decision in this case, since the respondent's claim is for maintenance. It is sufficient for me to say that whether Polish law applies or whether Jewish law applies there exists in the circumstances a presumption that the parties are man and wife, and in order that the appellant be relieved of his obligation to pay maintenance, it was for him to rebut that presumption, whether he relies upon Jewish law or upon Polish law. Semper praesumitur pro matrimonio. In Spivak v. Spivak (15), a Jewess who came from Poland brought a claim against her husband for maintenance. Her husband had lived apart from her in England for many years, and a question arose as to the validity of the marriage which had been celebrated in Poland. It was held that it is only in cases of bigamy that there is a duty upon the Crown to prove the validity of the first marriage beyond dispute, but that in a civil case, the presumption is sufficient. In quoting another authority, the learned judge said: "Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary..."

           

            It is my opinion that, in view of the presumption referred to that "a man does not indulge in sexual intercourse for the purpose of sin", and the conclusion, that there exists an intention to marry, to be drawn from that presumption, the same rule must be applied where a claim such as a claim for maintenance is brought before a civil court and the matter is governed by Jewish law. It seems to me that where a claim is brought in a civil court, and that claim is one for maintenance, and it is clear from the facts that the parties are husband and wife, the court must apply the presumption relating to the validity of the marriage, unless it be proved by the defendant that according to the personal law which governs the case - be that Jewish law or some other law - the marriage is invalid. Should this not be established by the defendant, it is presumed that the personal law which applies recognises the validity of the marriage, and maintenance will be awarded in accordance with the provisions of the personal law.

 

            It follows that even had the learned judge decided that Jewish law also applied to the "Polish period" during which the marriage was celebrated, he would have had to award maintenance. I wish to emphasize once more that we are dealing here with a claim for maintenance in a civil court, and not with the question whether the defendant will or will not require a divorce. In the case before us the respondent discharged the burden of proof which lay upon her. She proved that, on the facts, she is the wife of the appellant. She proved, with the assistance of the presumption referred to, that she is also his wife from the legal point of view - whether the law which applies is Polish or Jewish law - for the purposes of a claim for maintenance. On the other hand, the appellant did not succeed in rebutting the presumption relating to the marriage of the parties, either according to Polish law or Jewish law.

           

            In giving an affirmative reply to the question whether the parties are man and wife, the learned judge applied Polish law, that is to say the law of the place where the marriage was celebrated, which is also the law of the matrimonial domicil, by virtue of which the parties acquired the status of a married couple.

           

            Without going into detail, I would say the conclusion of the learned judge is correct. The validity of the status which a person has acquired for himself is determined by the law which applied at the time that he acquired that status. He does not lose that status by changing his place of residence or his nationality even though he may then fall within the operation of another law. Any other conclusion would be likely to cause serious injustice. For example, a Jewish couple, married under civil law, lives in one of the countries of the diaspora for many years, emigrates to Israel in order to settle there, and acquires Israel nationality; the husband dies, and his estate is to be divided according to the law of succession to miri1⁾ property, in respect of which a will does not operate. If it be said that the question whether the widow was the wife of the deceased should be decided according to Jewish law, it will follow that she would lose all rights to the inheritance - a situation which the deceased never conceived of during the whole of his life, whether in the diaspora or in Israel. On the other hand, a possible, though rare, situation might arise where a Jewish couple married in the diaspora according to religious rites alone, without fulfilling the civil requirements of the law of the country in which the marriage was celebrated. (Such cases may have occurred during the war in places under Nazi rule.) Suppose that couple emigrated to Israel. If the law to be applied is that of the matrimonial domicil at the time of the marriage, it would have to be held that the marriage was invalid as being contrary to the law of the State in which it was celebrated. It is possible, however, that in such a case other additional considerations would apply, so no hard and fast rule can be laid down to cover such a case.

 

            The principal argument of counsel for the appellant, in attacking the decision of the learned judge relating to the application of Polish law to the question of the validity of the marriage, is that since the claim and the counter-claim were filed at a time when the parties were stateless, Jewish law was applicable regarding all the questions that arose, whether during the "Polish period", when Polish law applied, or the "Israel period", when the parties were stateless. It follows from this submission that if the defendant were, for example, a person who became an English national, then - because of the application of English law and the English rules of private inter­national law which are included in that law - every incident in the life of such a person which created his personal status would not be judged according to domestic or municipal English law, but according to that law (the law of his domicil or the law of his previous nationality) which applied to him at the time of such occurrence. If, however, such a person became an Israel national, the religious law would apply to every such incident which occurred at any place and at any time from the date of his birth, for religious law is universal, and recognises no frontiers or limitations, nor does it include or recognise any private international law. In advancing this submission, counsel for the appellant relied upon a line of decisions from the period of the Mandate in which it was held that, according to Article 47 of the Palestine Order in Council, the personal law of a Palestinian Jew or stateless Jew is Jewish law, that is to say, the religious law. According to this argument, the authorities referred to purported to lay down that it is not the nature of the problem which arises between the litigants which determines the personal law of the defendant to be applied, but it is the nationality of the defendant (or the fact of his being stateless), at the time that he requires the assistance of the court, which determines which law is to be applied to all the problems that arise, without exception, and without consideration of the law which would have applied to the defendant at the time of his acquisition of the status, or of the creation of the cause of action, which is the subject of the matter to be considered by the court. In other words, if the defendant is a Jew who is stateless, and who is subject to Jewish law, and the question arises whether he is married, then if, according to Jewish law, his marriage is not to be regarded as valid, the court is obliged to hold that he is not married. The court should overlook the fact that according to the law which applied to the defendant at the time and place of his marriage, his marriage was valid. Counsel further submitted that since the court had reached the conclusion that, according to Jewish law, the marriage of the appellant was invalid, and since at the time of the bringing of the action Jewish law applied to him, the court could not rely upon Polish law and hold that he was married.

 

            Having examined the precedents from the time of the Mandate, I have reached the conclusion that this submission - even to the extent that it is based upon the authorities referred to - is unsound.

           

            In Freyberger v. Friedman (1). it was held by the Court of Appeal that Jewish law applied to a Jew who was stateless in matters of his personal status. The parties, who were previously Austrian nationals, settled in Palestine, and married at a time when they were stateless. They subsequently became divorced according to Jewish law. In applying the religious law it was held by the court that the divorce was valid, and that the bonds of marriage between the parties had been dissolved. The problem whether Jewish law also applied to the status which had been acquired by the defendant according to foreign law, at a time when such foreign law applied to him, did not arise.

           

            In Cohen v. Ludmirer (2), Jewish law was applied to the defendant, a stateless Jew, in a claim brought against him in respect of the maintenance of a child. The child, however, had been born in Palestine at a time when the defendant was stateless, that is to say, at a time when, and place where, he was subject to religious law. Here, too, the problem with which we are dealing did not arise.

           

            In Shwalboim v. Shwalboim (3), the court dealt with a claim for maintenance brought against a defendant who was a Palestinian national, and it was held that the claim was governed by Jewish law. In that case, too, the question of the effect of the foreign law which would have applied to the defendant before he became a Palestinian national, did not arise.

           

            In Tennenbaum v. Tennenbaum (4), the respondent married his wife in 1937 at a time when he was a Czechoslovakian national. The parties were divorced according to Jewish law on January 19, 1940. Czechoslovakian law did not recognise the validity of the divorce which was effected outside Czechoslovakia. On March 1, 1940, the respondent married the appellant, who was then a German national, by Jewish religious rites. In view of the doubt which arose as to the divorce from his first wife - and also in regard to the validity of his marriage to the appellant - by reason of the foreign laws which applied to the parties, the respondent became naturalised on March 31, 1941, and on May 2, 1941, he again divorced his first wife before a Rabbi. Thereafter the parties appeared at the Rabbinate, and a "marriage of validation" was celebrated. On July 4, 1941, the appellant also became naturalised. Quarrels broke out between the parties, and the wife filed a claim for a declaration that she was not the wife of the respondent. The District Court held that the second marriage was invalid, but that since the law that applied to the parties in this instance was their personal law at the time when the claim was filed, and that was the religious law, the first marriage and divorce were valid, in spite of the fact that according to the foreign law which then applied to the parties, the divorce, and therefore also the first marriage, were invalid. In other words, it was held that Jewish law, which applied to the parties at the time of the filing of the claim, also applied retrospectively to acts performed by the parties at a time when they were subject to the foreign law.

           

            Since the appellant in this case, his counsel submitted before us, was a Jew who was stateless, and was in no different position - from the point of view of the law which applied to him - from that of a Jew who is a Palestinian national, it follows that, by comparing this case with the decision referred to, Jewish law also applies to the Polish marriage, and that marriage is invalid. Since this is so, he further submitted, the learned judge erred in superimposing upon Jewish law the principles of private international law, and he should have held - in accordance with Jewish law - that the appellant was not married to the respondent, and should have dismissed her claim for maintenance. The Court of Appeal, however (in the Tennenbaum case), in confirming the conclusion reached in the judgment cited above, did not accept the opinion of the District Court and held explicitly: -

 

"The next point for decision is, what law is to be applied. There is no question that the law applicable is the law governing the parties at the time of the marriage. In the case of the first marriage, this is either Czechoslovakian or German law. Evidence was led to prove that neither of these laws recognises a religious divorce made abroad, and therefore at the time of the marriage between the parties, the respondent must be considered to have been still married to his first wife. His first marriage to the appellant was therefore a bigamous one and was accordingly invalid... Now, on the same principle governing the first marriage, the law applicable as regards the second marriage certificate is Jewish law, because the husband was at that time a Palestinian subject." (Per Frumkin J., at pp. 204, 5.)

 

This judgment is certainly no authority for the view that the religious law, which applied to the parties at the time of the filing of the action, applies throughout - that is to say, also to what occurred in a period during which the parties were subject to foreign law.

 

In Neussihin v. Neussihin (5), a marriage was celebrated between the parties in Germany by religious rites but not in accordance with German civil law. Such a marriage was invalid in the eyes of German law. After the couple reached Palestine, they appeared by agreement before the Rabbinical Court which declared that they were married by Jewish religious law, and handed them a certificate confirming this fact. A short time thereafter the parties acquired Palestinian nationality. After some years the husband died, and disagreements broke out between the heirs of the deceased and his widow as to the division of his miri property. It was contended by the heirs that the widow had at no time been the legal wife of the deceased, since the marriage was void according to German law at the time of its celebration in Germany. It must be pointed out that when the parties appeared before the Rabbinical Court their marriage was confirmed, but no ceremony of marriage was celebrated not even what was called in Tennenbaum's case (4) a "marriage of validation". it was held by the court that the question whether the widow had been the wife of the deceased must be decided according to Jewish law. But it would be wrong to think, as is submitted by counsel for the appellant, that it follows from this decision that the religious law which applied to the widow at the time of the bringing of the dispute before the Court, applied throughout - that is to say, to the period during which the law which applied to the deceased and his wife was German law. The court merely recognised the declaration of the Rabbinical Court, as to the status of the parties, as a decision given by a competent tribunal, and refused to act as if it were a court of appeal from the Rabbinical Court and set aside its decision because it had disregarded private international law. It also does not follow from the judgment cited that private international law is not to be considered in addition to Jewish law in a claim which is elucidated in a civil court. The following provision from section 23 of the Succession Ordinance, 1923, is quoted in the judgment referred to: -

 

"23. For the determination of any question as to whether any person is a member of a class, or possesses a character or quality, whereby he is entitled to a share in a succession the civil courts shall apply the following rules : -

 

   (a) if the claimant is a Moslem or a member of one of the communities, the Moslem law or the law of the community shall apply;

  

   (b) if such claimant is a foreigner.... ."

           

            Since the widow was a member of the Jewish Community and a Palestinian national at the time that the dispute was brought before the District Court, had the Court of Appeal held that the religious law to which the widow was subject at the time of the hearing of the dispute was also the operative law even in respect of the period during which she was subject to German law - as counsel for the appellant in the present case had submitted - that court would have had no need to rely upon the decision of the Rabbinical Court as to the status of the deceased and the widow. It could itself have decided the case by reference to religious law (which validates a marriage celebrated according to religious rites anywhere), relying upon section 23 of the Succession Ordinance, according to the construction placed on it by the appellant's counsel.

 

            It seems to me that, up to this point, no support for the submission of counsel for the appellant can be found in any of the judgments referred to above. The two last judgments - the first directly and the second indirectly - support the point of view of the learned judge in the court below.

           

            In Levin v. Goldberg (7), the deceased was a Palestinian national and a member of the Jewish Community. His widow, whom he married in Rehovot by Jewish religious rites in 1938, and his son, claimed the estate. The sisters of the deceased opposed this claim on the grounds that the widow had not been the lawful wife of the deceased, and that the son was not their legitimate child. On the facts proved, the widow had been married civilly to a Jew named Rosovsky in Paris in 1931. She had been divorced from Rosovsky in Riga at the beginning of 1938 by a judgment of the District Court of Riga, without having received a Jewish religious divorce. It was submitted by those opposing the claim that since, according to Jewish law, even a marriage by civil rites possesses some of the character of a religious marriage, the widow could not be divorced from Rosovsky save by a Jewish religious divorce. It followed that the widow, at the time of her marriage in Rehovot, was already married, and her marriage to the deceased, therefore, was invalid. The court heard the evidence of Rabbis as to the validity of the marriage in Paris according to Jewish law, and reached the conclusion that no marriage in Paris, valid according to Jewish law, had been celebrated and the widow, therefore, did not require a divorce from Rosovsky before her marriage to the deceased, and that her marriage to the deceased, therefore, was a valid marriage.

           

            From this it may be submitted by counsel for the appellant that if, as is contended against him, the question of the validity of the marriage in Paris and the divorce in Riga is to be determined according to the foreign law which then applied to the widow, the court need not have based its conclusion regarding these matters on the principles of religious law. It follows that the religious law which applied to the widow at the time of the filing of the claim applied throughout, that is to say, also to the period during which she was subject to the foreign law.

 

            It appears from the judgment, however, that the parties at no time raised this question, for in that particular case the result of applying the religious law or the foreign law would have been the same. This question might possibly have arisen had it been proved that according to the religious law the widow would have required a religious divorce before her marriage to the deceased. What is more, no appeal was lodged against the judgment referred to, and it must not be overlooked that that judgment was given after the judgment of the District Court in Tennenbaum's case (4) and apparently before the decision of the Appeal Court was published varying the judgment of the District Court in that case (see Tennenbaum's case (4)). It might also have been necessary to examine whether the Paris marriage was valid from the point of view of the religious law for another reason, namely, in order to determine the validity of the marriage celebrated in Rehovot according to the religious law, without any regard to the foreign law which applied to the widow at that time. Those who opposed the succession did indeed submit that the fact that according to secular law - in view of the principles of private international law - the widow was regarded as a divorced woman, was irrelevant, since, according to their contention, the Rabbi in Rehovot could not have celebrated a valid marriage had he known of the Paris marriage and of the fact that the widow had been divorced according to foreign law without receiving a bill of divorcement from Rosovsky. The marriage in Rehovot was therefore invalid, since it had been celebrated as a result of the non-disclosure of facts. In other words, their submission was that in regard to the religious marriage in Rehovot, one of the conditions required by the religious law, namely, the production of a bill of divorcement from Rosovsky, had not been fulfilled.

 

            It might well be that the marriage in Paris had some of the aspects of a valid marriage from the religious point of view. We will not however, express an opinion here whether a civil court, in dealing with the division of the estate of the deceased, would have invalidated the marriage in Rehovot because of the absence of a divorce from Rosovsky, particularly when we take into account the fact that the widow had been divorced from him in Riga by a civil divorce, in accordance with the foreign law which applied to her at that time.

 

            As I have already said, the learned judge in the present case decided the fate of the case by applying Polish law. He held, first, that a marriage subsisted between the parties, and he overruled the submission that it was necessary to decide this question according to the religious law as well, which began to apply to the parties when they settled in Palestine.

           

            On this question the judgment reads: -

           

"On pages 5, 6 and 7 of Dicey's work (6th edition) the learned authors explain that, for reasons of practical necessity, there is no escape from employing the principles of private international law where the particular transaction reveals one or more foreign elements, for if you close your eyes altogether to the foreign element, you are liable to judge the rights of the parties in such a way as to do injustice. In Vasan v. Vasan (16), Barnard J. said, at p. 23: 'To deny recognition of a Hindu marriage for the purpose in hand would, in my opinion, be to fly in the face of common sense, good manners and ...', and in Baindail v. Baindail (17), Lord Greene M.R. said, at p. 346 : 'The practical question in this case appears to be : Will the courts of this country, in deciding upon the question of the validity of this English marriage, give effect to what was undoubtedly the status possessed by the appellant (that of a married man in India) ? That question we have to decide with due regard to common sense and some attention to reasonable policy.' I do not wish to exaggerate the importance of these remarks. The English courts would certainly not disregard precedent in order to give effect to what appears to them to be reasonable policy."

 

            To these comments I would add that the English courts will not assume the powers of the legislature which have not been given to them, in order to give effect to a policy which appeals to them, even were they to be convinced that they could not otherwise discharge their judicial duty and do justice between the parties.

           

            The learned judge continues :

 

            "I have only quoted these passages in order to emphasize the principles which move the legislature and the Courts in the creation of the rules of private international law and the crystallization of those rules. It seems to me, for considerations of common sense and reasonable policy, that justice would not be done between the par­ties if the foreign element in the relations which gave rise to this case were not recognised, that is to say, if the rules of private international law were not employed."

           

            I share the opinion of the learned judge that it would be impossible to do justice between the parties without having resort to the provisions of private international law. I am also of his opinion that "common sense and a reasonable policy" speak in favour of applying private international law side by side with the religious law, and particularly where there is a danger that by applying the religious law alone, the respondent would be deprived of a personal status which she had once acquired validly and lawfully.

           

            The only problem is whether this "common sense and reasonable policy" find their place in the laws to which the courts of this country are subject.

           

            The learned judge was alive to this problem, and made an attempt to discover this "commonsense and reasonable policy" in Article 47 of the Palestine Order in Council, as interpreted by him.

           

            And this is what he says in his judgment: -

           

            "As is well known, English private international law bases itself upon domicil in matters of personal status, while Article 64 (ii) of the Palestine Order in Council bases itself upon the national law. Save for this distinction - albeit a fundamental distinction - I do not see why Article 47 of the Order in Council referred to need be interpreted as if it were completely detached from the body of principles of English private international law. The contrary is true. I am about to interpret that article as if it were grafted on to the body of English principles, so that as far as possible, and as far as may be required, the word 'domicil' shall connote the opposite of the word 'nationality'. In other words, I am about to apply the personal law, but I shall apply that law within those limits in which it must be applied according to the general principles of private international law, and no further. What is the law of personal status which is to be applied between parties, in accordance with Article 47? My reply is as follows: In regard to what transpired during the Polish period, the Polish law must be applied, and as to what transpired during the Israel period, the Jewish law must be applied. Nor is Jewish law at liberty to re-open transactions already concluded and to criticise a status which was acquired during the Polish period; for private international law in Israel does not consult Jewish law as to the validity of a status which was acquired in Poland."

 

            The learned judge cites the English case of Goodman's Trusts (18). In that case a Polish woman died at a time when she was domiciled in England, and her personalty was to be distributed in accordance with English law. There were no heirs nearer than the descendants of the deceased's brother. According to the law of England of that time, only legal descendants - as distinguished from natural descendants born out of wedlock - were entitled to inherit. A certain woman, a daughter of one of the brothers of the deceased, appeared and claimed a share of the estate. The claimant was born in Amsterdam, Holland, out of wedlock, but after her birth her parents married in Holland at a time when they were domiciled in that country. According to the law of Holland their marriage, celebrated at a later stage, operated to legitimate the daughter born before the marriage, while according to English municipal law, the later marriage could not operate to change the status of the claimant as an illegitimate child. The question therefore arose whether, for the purpose of the distribution of the estate, the claimant was to be regarded as the legal niece of the deceased, in accordance with the law of Holland, or as the illegitimate niece of the deceased, in accordance with the law of England. It was held that in order to determine the status of the claimant for purposes of the distribution of the estate, the law of Holland was to be applied, and not English law.

           

            Cotton, L.J. said, at p. 291 : -

           

            "In support of this decision it was urged that in an English Act of Parliament the nearest of kin must be taken to mean those who by the law of England are recognised as nephews and nieces, that is, as legitimate children of the intestate's deceased brothers. This is doubtless correct... But the question as to legitimacy is one of status, and in my opinion by the law of England questions of status depend on the law of the domicil."

           

And further at p. 292 : -

 

            "If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere.''

           

James, L.J., in the same case, said at p. 296 : -

 

            "According to my view, the question as to what is the English law as to an English child is entirely irrelevant... But the question is: What is the rule which the English law adopts and applies to a non-English child ? This is a question of international comity and international law. According to that law as recognised, and that comity as practised, in all other civilised communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin - the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world ... the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations. England has been for centuries a country of hospitality and commerce. It has opened its shores to thousands of political refugees and religious exiles, fleeing from their enemies and persecutors. It has opened its ports to merchants of the whole world, and has by wise laws induced and encouraged them to settle in our parts. But would it not be shocking if such a man, seeking a home in this country, with his family of legitimated children, should find that the English hospitality was as bad as the worst form of the persecution from which he had escaped, by destroying his family ties, by declaring that the relation of father and child no longer existed, that his rights and duties and powers as a father had ceased, that the child of his parental affection and fond pride, whom he had taught to love, honour, and obey him, for whom he had toiled and saved, was to be thenceforth, in contemplation of the law of his new country, a fatherless bastard ? Take the case of a foreigner resident abroad, with such a child. If that child were abducted from his guardianship and brought to this country, can anyone doubt that the Courts of this country would recognise his paternal right and guardianship, and order the child to be delivered to any person authorised by him ? But suppose, instead of sending, he were to come himself to this country in person" [and settle there] "would it be possible to hold that he would lose his right to the guardianship of the child in this country... ? Can it be posssible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on his arrival at the port of London find that the child has become a stranger ... ?"

 

            From the point of view of the facts, the case of Goodman's Trusts (18) merely lays down a principle similar to the provision contained in section 23 of our Succession Ordinance. According to that provision, if the law which governs the distribution of the estate directs that, in the absence of closer relatives, the estate is to be divided between the nephews of the deceased, and the question arises whether a particular claimant is a nephew of the deceased, that question must be answered in accordance with the law of the community to which the claimant belongs. In other words, it is the personal law of the claimant, and not the personal law of the deceased which is to be applied. In the case of Goodman's Trusts it was the Dutch law of the claimant and not the English law which applied to the estate.) The observations of the learned judge which I have cited from the case of Goodman's 'Trusts are merely the grounds which induced them to follow the principle stated. It may be that the provision of section 23 of the Succession Ordinance, according to which the personal law of the claimant is to be applied when we have to decide whether he belongs to a class of persons who are entitled to participate in the distribution of an estate. was enacted for the same reason. But that case in itself provides no solution to the problem before us, namely, whether in every case in which our law refers us to the religious law, we may not apply the principles of private international law - when that course is necessary in order to do justice between the par­ties. Let us assume that an estate, consisting of mulk property, is about to be distributed in accordance with foreign law, and that a nephew of the deceased claims a share of the estate as an heir. According to section 23 of the Succession Ordinance and the principle laid down in the case of Goodman's Trusts (18), the question whether the claimant is a nephew of the deceased must be determined, not in accordance with foreign law which applies to the estate, but according to the law which applies to the claimant. If the law which applies to the claimant is the religious law, then the question will arise whether the religious law must be applied subject or not subject to private international law.

 

            The difficulty here - as is pointed out by the learned judge in his judgment - is the existence of a conflict between secular law and religious law. The former is confined to matters arising within the borders of the State, or to nationals or residents of the State. It is for this reason that secular law recognises and applies other laws which govern the personal status of a man before he settled in the State or became a national of the State. The latter law knows no bounds or limits and applies to a person from his birth until his death in all matters affecting his personal status, without any reference to the place where, or the time in which, an occurrence may have taken place.

           

            The same problem may also arise in a case where the provision in section 23 of the Succession Ordinance is applied. In the case of Goodman's Trusts English private international law referred the court to the law of Holland, while here in this country it cannot be said that the religious law will refer the court to the foreign law under which the marriage which created the status of the plaintiff was celebrated.

           

            The learned judge was therefore correct in attempting to look for a solution in Articles 46 and 47 of the Palestine Order in Council. It has already been said by Grinzweig J. (Prof. Ginossar) in Burg v. Attorney-General (14): -

 

"In this connection it is appropriate to emphasize the word 'further' which appears in the opening portion of Article 47. In any event, Article 47 must not be interpreted as a provision standing alone. It must be read together with the earlier provision which leaves in force the law - including the whole of the Mejelle - as it existed in Palestine on November l, 1914. It seems to me, therefore, that Article 47 was not introduced in order to limit the scope of Article 46."

           

            Articles 46 and 47 of the Palestine Order in Council both deal with the jurisdiction of the civil courts of the country respecting the laws which they are to apply in judicial proceedings. It was laid down by the legislature in Article 46 that the English Common Law and the principles of equity must be applied where no solution can be found in the Ottoman Law - which it left in force - or in ordinances enacted or to be enacted by the Palestine legislature. Private international law contained within English Common Law must also be taken to be included. When the same legislature comes to deal with problems of personal status in Article 47, it refers the court to the personal law. Article 47 is general in its terms. It does not define what is meant by the personal law, and it draws no distinction between foreign nationals and Palestinian nationals or persons who are stateless. In regard to foreigners there is a later supplementary article, Article 64, which contains a specific provision that the personal law is the national law, that is the law of the nationality. The national law means the whole of that law, including private international law.

 

            In regard to litigants who are not foreign nationals, however, Article 47 remains without any supplementary article such as Article 64. It was only during a later period that the court held that the personal law (within the meaning of Article 47) of Palestinian nationals, or of persons who are stateless, was the religious law.

 

            I do not think that this is mere coincidence. When the legislature, in Article 64, applied to foreigners the law of their nationality, it knew that it was thereby also applying the private international law which is included within their national law. When, however, in Article 47, it applied the religious law to Palestinian nationals and persons who are stateless, it must be assumed that it knew that the religious law does not include the principles of private international law. The question that arises, therefore, is this: Did the legislature indeed intend to apply the religious law, and to exclude completely the application of the principles of private international law ? Had this been its intention, it is not clear why it did not choose the simpler and clearer method of laying down an unambiguous provision that in the case of foreign nationals the national law shall apply, and in the case of Palestine citizens or of persons who are stateless, the religious law shall apply.

 

            It seems to me that this was not its intention. In applying the religious law, the legislature did not intend to deny the application of the principles of private international law. The contrary is the case. It would appear from the manner in which Article 47 is drafted that the intention was to leave the door open for the application of English private international law until the problem should be resolved by Ordinances or regulations to be enacted or framed by the Palestine legislature, for this is the language used by the legislature in Article 47:

           

            "The Civil Courts shall further have jurisdiction ...in matters of personal status... Such jurisdiction shall be exercised in conformity with any law, Ordinances or regulations that may hereafter be applied or enacted and subject thereto according to the personal law applicable."

           

            It is interesting that the Article does not say "according to the religious law subject to any Ordinances etc. that may be applied", but says "...in conformity with any law, Ordinances or Regulations... and subject thereto according to the personal law..."

           

            If we remember that Article 47 is not intended to derogate from Article 46, what is the interpretation of the words "in conformity with any law that may hereafter be applied", in addition to the words "in conformity with any law which may hereafter be enacted"? "That may hereafter be applied" means the existing law, or the law the existence of which had already begun. Must it not be said that Article 46, which includes the principles of English private international law, is also a law, as other statutes in the future - "that may hereafter be applied" ? The result is that for so long as the legislature has not regulated, by an ordinance or law as provided in Article 47, the application of the religious law in a matter in which a foreign element exists, resort must be had to Article 46 (which also includes private international law), that may hereafter be applied.

 

I wish to cite here the remarks of Silberg J. in Cohen and Bousslik v. Attorney-General (9), which seem to me indirectly to support my point of view.

 

This is what he said at p. 19: -

 

            ''Yet, it is not only because of the different rules of evidence, but also because of the different approach to the substance of the case that the judgment of the civil court will not always be the same as that of the religious court, though both purport to deal with the matter according to Jewish law. One of the reasons for this is a different attitude towards the accepted principles of private international law, which require the recognition of the validity of legal acts done in the past, outside the territory of the State and under a foreign law, such as the national law of the parties or the law of their place of residence, and similar matters to be taken into consideration. The religious court regards itself as completely free from these "cramping" rules ; it extends the application of the religious law - a priori and unrestrictedly – to acts performed in the past by foreign nationals outside the boundaries of the State, and it is permitted so to do (see Neussihin v. Neussihin (5)); the civil court, on the other hand will, to some extent at least, take those rules into account, even if it deals with the matter, in principle, according to Jewish law."

 

            It seems to me, therefore, that when the learned judge was faced with the problem whether the status of the parties as a married couple continued to exist, or whether it was destroyed by the application of the religious law, he was entitled - relying upon Article 46 - to hold, in accordance with private international law, that the bonds of marriage created according to Polish law continued to exist, at least for the purpose of resolving the dispute before him, since private international law refers the problem in the present case to Polish law.

           

            Neither of the parties disputed the proposition that if the validity of their marriage was not to be determined according to the religious law. English private international law applied the law of the matrimonial domicil. that is to say. Polish law, and I see no reason to continue the argument on this point.

           

            It will no doubt be asked what the position would be were the situation reversed, that is to say, if the parties had celebrated their marriage in the country from which they emigrated by religious rites alone, such marriage being regarded as invalid by the law of that country ? The answer may possibly be that since they chose to be married in accordance with religious law, which is a universal law, a court in this country would not be obliged to invalidate such a marriage, when considering an ancillary claim and the question arose incidentally whether the parties were married. It may be that in order to validate their status, we would have to apply the religious law. The problem is by no means a simple one, but there is no need to decide this point in the present case.

           

            In short, it is my opinion that the appellant has not succeeded in this case in rebutting the presumption standing against him, and there I could have let the matter rest.

           

            Out of respect, however, for the detailed and well-reasoned judgment of the learned judge, and the comprehensive arguments addressed to us by counsel for the appellant, I have thought it proper to deal with the question of the application of the principles of private international law.

           

            Finally, counsel for the appellant submitted that the provisions of Polish law imposing upon the husband the duty of supporting his wife had not been proved.

           

            It seems to me that this submission is unfounded. Even were the religious law to apply to the whole of the case, as counsel submitted, it would be for him to establish those features which would relieve the appellant of the obligation of maintenance, since the respondent has proved that she was deserted by the appellant. If Polish law applies to the question of the validity of the marriage, then the religious law again applies - as was held by the learned judge - to the question whether in the circumstances that were established by the respondent, the appellant is liable for her maintenance. Since the parties settled in this country and became subject to religious law, the question of whether the husband was liable for the maintenance of his wife whom he deserted should be decided by the religious law which applied to him at the time of the desertion.

 

            I am accordingy of the opinion that the appeal must be dismissed, and the judgment of the court below confirmed.

           

AGRANAT J. I agree that the appeal must be dismissed for the reason mentioned in the second part of the judgment read by my colleague Olshan D.P.

 

            The subject of the appeal is a claim by the appellant for the return of certain movable property in the possession of the respondent or payment of damages in the event of the non-return of this property, and a counter-claim by the respondent against the appellant for the payment of maintenance. It is clear that the determination of both these claims depends upon the reply to a preliminary - to use an expression of my colleague Witkon J. - incidental question, namely, the question whether the civil marriage contracted by the parties outside this country is valid. The main facts, as found in the interesting and elaborate judgment of Cohen J. in the court below, are as follows: -

           

a)   The civil marriage of the parties - and no other marriage ceremony was celebrated - was contracted in Poland on April 2, 1948.

 

b)   The parties were at that time Polish citizens, and Poland was at that time their domicil. They also made Poland their domicil after the marriage.

 

c)   The parties immigrated to Israel in 1950.

 

d)  At the time of the filing of the claim and counter-claim the parties were stateless.

 

It must be pointed out that by virtue of section 2 (b) (2) of the Law of Nationality, 1952, which came into force after the judgment of the District Court in the present case had been delivered, the parties should have been regarded at the time of the hearing of the appeal as if they had been Israel citizens at the time when the claim was filed. This submission, however, was not argued before us, and counsel for both parties proceeded upon the assumption that their clients were at that time stateless persons. Since this is so, I shall proceed upon the same assumption, although my final conclusion would have been no different even had I regarded the parties as Israel citizens at the time when the claim was brought.

 

            What law are we to apply in deciding whether the Polish marriage is valid or not ? It is clear that we must first consider the concluding portions of Article 47 of the Palestine Order in Council, which provides that the law to be applied is : ''the personal law applicable". Since, however, the parties were, at all relevant times, foreigners - for a person who has no nationality is considered a foreigner within the meaning of Article 59 of the Order in Council - we are obliged to read the provision I have mentioned together with that contained in Article 64 (ii) of the Order in Council, which provides that "The personal law shall be the law of the nationality of the foreigner concerned unless that law imports the law of his domicil. . .. ." It has, however, been held by our courts that the personal law of stateless Jews is Jewish law (see Freyberger's case (1), Cohen's case (2), and Levin's case (7)). I shall deal later with the question whether the basis of this ruling is that Jewish law is the religious law of stateless Jews - and is therefore their personal law - or whether the basis is that Jewish law is their "national" law.

 

            Since the personal law of the parties at the time that their civil marriage was contracted was Polish law, and their personal law at the time when the claim was filed - as we assume - was Jewish law, the problem before us is confined at this stage to the question which date is to be taken into consideration, in order to decide which of the two laws mentioned above must be applied.

 

            Nothing at all, however, in regard to this point, is mentioned either in the provision contained in Article 64(ii), or in Article 47. Since this is so, we have no option but to seek the reply to our question in Article 46 of the Order in Council, that is to say, in the common law - including the principles of private international law which are part of it. In this respect I differ from the opinion of my colleague Olshan D.P. that it is possible to find assistance in that portion of Article 47 which provides : ''... such jurisdiction shall be exercised in conformity with any law, Ordinances, or Regulations that may hereafter be applied or enacted... ''. That is to say, I do not think that these words - and in particular the expression "be applied" - enable us to apply the principles of the common law by virtue of Article 46. It seems to me that the intention reflected both by the expression "applied" and by the expression "enacted" - particularly in the light of the word "hereafter" which precedes both those expressions - relates to laws to be applied or enacted in the future by the legislature itself, as distinguished from existing laws applied by the court. The two words mentioned give a hint in fact of two different systems of legislation which the English legislature intended to apply to Palestine ; the one - to which the word "enacted" applied - is direct legislation for the purposes of the country ; the other - to which the word "applied" refers - is the application of existing English statutes, such as the application of the Copyright Act, 1911, by means of the Order in Council of 1924 (Drayton - Vol. III, p. 2499) ; also the Emergency Powers Defence Act, 1939, which was applied to Palestine by virtue of the Order in Council, relating to Emergency Powers (Defence of the Colonies), 1939, (Official Gazette 1939, Supplement 2, pp. 649, 652, 656), and laws similar to these.

 

            On one point, however, there was unanimity of opinion among the three judges who sat in Bichovski v. Bichovski (6), that is to say, in regard to the point that until that time no "law, Ordinances or Regulations" relating to marriage, save those provisions contained in the Order in Council itself, had been applied or enacted (pp. 246-9, 251 ibid.). It is true that since the establishment of the State, the Women's Equal Rights Law, 1951, and the Rabbinical Court's Jurisdiction (Marriage and Divorce) Law, 1953, have been enacted, but these two statutes do not deal directly with the problem with which we are concerned. The words "the general law applicable" in Article 47 remain, therefore, the decisive words. As I have intimated, this expression must be interpreted - in order to answer the question what is the critical point of time in regard to the application of the personal law - in accordance with the provisions of Article 46. This is so, however, only because of the well-established principle in our jurisprudence that where there exists a lacuna in the local law, the omission is to be filled by relying upon Article 46, that is to say, by applying the English Common Law. And the English Common Law means that law including the principles of private international law which are a part of it. It is clear that we must apply those principles, for the operative facts constituting the subject-matter of this case include a foreign element, namely, that the parties contracted a civil marriage in Poland, at a time when they were nationals of that country .

 

            As is well known, under the common law matters of personal status are to be determined in England according to the law of the domicil. The law of the domicil, however, is also a man's personal law, no less than his national or religious law. In Salvesen v. Administrator of Austrian Property (19), Lord Phillimore said, at p. 670 : -

           

"I have used the expression 'the law which determines the personal status' because there are countries which would refer to nationality rather than to domicil ; but the principle is the same."

           

            In his article "The Recognition of Polygamous Marriages under English Law" (48 L.Q.R. 341), W. E. Beckett writes, at p. 352 :-

           

"This expression is used as meaning that law which is applied to determine questions of status - it is, under English Private International Law, the law of the person's domicil….".

           

            We are thus able to determine the critical time for deciding as to the personal law which applies in the case before us by comparison with the principle according to which the law of the domicil would be applied to such a case in England. If, according to English pri­vate international law, the law of the domicil at the time of the marriage is to be applied, we too shall apply the personal law which applied to them at that time, and if in England the law of the domicil at the time of the filing of the action is to be applied, we too shall apply the personal law of the parties at that date.

           

            It is true that a distinction is drawn in England between the question whether the marriage is valid from the point of view of its form, and the question of its essential validity. In regard to the first question, the English courts apply the lex loci celebrationis, while the second question is determined by them according to the lex domicilii.

           

            The question before us, namely, whether the civil marriage is valid, is - according to the prevailing view in England - a question of the validity of the marriage from the point of view of its form. In this respect however, we cannot rely upon the English principle which applies the law of the place where the marriage was celebrated, since the notion of the lex loci celebrationis must not be confused with the notion of the personal law - though there will sometimes be no real difference, whichever of these two laws is applied, as far as the final result is concerned. In regard to the distinction between the two conceptions referred to, see the remarks of Martin Wolf in his book on private international law, 11th edition, pp. 325-327). It seems to me, therefore, that I shall not go far wrong if I hold that we should apply those rules of private international law which would be applied by the English courts to the question of the essential validity of the marriage between the parties, or - to be more precise - whether the marriage is valid from the point of view of the capacity of the parties to contract a marriage.

 

            Let me therefore define the question before us in these terms : when the Courts referred to apply the law of the domicile in order to determine whether the marriage is valid from the point of view discussed above, which point of time do they consider before deciding the law of the domicil which applies in the particular case where the parties have since changed their domicil ? Before I reply to this question, I wish to clarify more fully my approach to the problem before us.

           

            I do not wish to be understood as holding that we have to decide whether the marriage is valid - from the point of view of form - according to the law applicable in England ; the question before us is not whether we must choose in this case between the personal law of the parties and the law of the place where the marriage was celebrated, and what English law would lay down in such a situation. The problem which arises is more restricted. It is well recognised that our law directs us to turn to the personal law of the parties in order to decide whether a civil marriage celebrated by the parties is valid - from all points of view. The only question which arises is which personal law is to be preferred and applied - the personal law of the parties at the time of the celebration of the marriage, or their personal law at the date of the filing of the claim. It is only for the purpose of determining the point of time - and for this purpose alone - that we turn, by way of analogy, to English private international law, since that law also refers us to the personal law in matters of status and marriage generally, save that in regard to the question of the validity of a marriage from the point of view of its form, English law, abandoning its general approach, applies the law of the place where the marriage was celebrated. As was said by Lord Greene in Baindail's case (17), at p. 345: -

 

"The proposition would not be disputed that in general the status of a person depends upon his personal law, which is the law of his domicil."

 

            The very basis of the application of the principle of the domicil or nationality of a person is the idea that questions of status are the concern of the country in which his life is centred, or the concern of the people to which he belongs (see Wolf, ibid, p. 103). This was emphasized by Pearce J. in Pugh v. Pugh (20), where he said, at p. 686 : -

           

            "It must be remembered that personal status and capacity to marry are considered to be the concern of the country of domicil."

           

            To sum up, for the purpose of furnishing the reply to the narrow question stated above, we draw, in our case, on the analogy of the general approach of English law in applying the personal law to matters of marriage.

           

            In this regard it is a rule of English private international law that when dealing with the question of the essential validity of a marriage, the law to be applied is the law of the domicil of the parties at the time of the marriage. This rule will at least apply where the domicil of both husband and wife prior to the marriage was the same. There is ample authority on this point, and I would first refer to the authorities collected by Pearce J. in Pugh's case (20), such as:

           

(a) the dictum of Lord Campbell in Brook v. Brook (21) that : -

 

"...The essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated" (ibid. at p. 684);

 

(b) the dictum of Lord St. Leonards in the same case that : -

 

    "... a marriage contracted by the subjects of one country, in which they are domiciled, in another country, is not to be held valid, if by contracting it, the laws of their own country are violated" (ibid. at p. 685) ;

 

(c) the dicta of Dr. Lushington in Conway v. Beazley (23) that:-

 

".... . the lex loci contractus as to marriage will not prevail when either of the contracting parties is under a legal incapacity by the law of the domicil ; and therefore a second marriage, had in Scotland on a Scotch divorce..... from an English marriage between parties domiciled in England at the times of such marriages and divorce, is null" (ibid at p. 687).

 

(d) In the same way, in the case of in re Paine (22), Bennett J. quotes with full approval, the same principle as stated in Hailsham, Vol. 6, p. 286, as follows: -

 

".... . the marriage must be a good and legal marriage according to the law of domicil of both contracting parties at the time of the marriage ..." ;

 

(e) and finally, are the dicta of Lord Greene in De Reneville v. De Reneville (24).

 

Applying this principle to our case, I reach the conclusion by analogy that the personal law according to which we must consider the validity of the civil marriage contracted between the parties in 1948 is their personal law at that time, that is to say - in view of what is provided by Article 64 (ii) of the Palestine Order in Council - the law of Poland. Since it is not disputed that according to that law civil marriages are valid from the point of view of their form, it follows that they must be regarded as valid in all places and at all times, for so long as the bond of marriage is not dissolved in a lawful manner or by the death of one of the parties. As was said by Scott J, in the case of Luck's Settlement Trusts (25) :-

 

"Status is in every case the creature of substantive law : it is not created by contract, although it may arise out of contract, as in the case of marriage, where the contract serves as the occasion for the law of the country of the husband's domicil to fix the married status of the parties to the contract. Perhaps the most far-reaching characteristic of status,... is its quality of universality, both in the general jurisprudence of other nations and in Private International Law as applied by English Courts. The general principle of status is that, when created by the law of one country, it is or ought to be judicially recognised as being the case everywhere, all the world over" (ibid, at pp. 890/891),

 

            Importance must also be attached to the remarks of Lord Greene in Baindail's case (17) at p. 345 :-

           

            "By the law of the appellant's domicil at the time of his Hindu marriage he unquestionably acquired the status of a married man according to Hindu law ; he was married for all the purposes of Hindu law, and he had imposed upon him the rights and obligations which that status confers under that law. That status he never lost. Nothing that happened afterwards, save the dissolution of the marriage if it be possible according to Hindu law, could deprive him of the status of a married man which he acquired under Hindu law at the time of his Hindu marriage..."

 

It follows that once the parties acquired the status of married persons in accordance with Polish law in 1948, that status remains in all places and at all times unless it be determined in some lawful manner, or by the death of one of the parties. Since that is so, no change in the personal law of the parties thereafter can deprive them of their status as married persons.

 

Before proceeding to the next question, I must make two comments. My first comment is this. There is room for the opinion - though I make no finding on the point - that the question whether the manner of celebrating the marriage is one of "form" or one of "essential validity" must be decided - since this is a question of "classification" - in accordance with the lex fori, that is to say, in accordance with the personal law of the parties at the time of the filing of the main claim and counter-claim, that is, Jewish law; and that according to that law, the failure to celebrate the marriage in accordance with religious rites is a matter that goes to the root of the marriage and is not merely a matter of form - particularly if the learned judge was correct in his conclusion that there is no basis, in the case before us, on the facts, for applying the presumption that "a man does not indulge in sexual intercourse for the purpose of sin." Martin Wolff shows in his book (ibid. at p. 343), for example, that according to the outlook of the Catholic and Orthodox Churches, the laws of one or other of which constitute the personal law applied in matters of marriage in various countries, the obligation to celebrate a marriage by a religious ceremony is not, in fact, merely a matter of form, but is a matter which goes to the root of the institution of marriage. (See also the example cited by Dicey, 6th edition, p. 69, paragraph (d).)

 

            As I have said, I myself do not hold that our matter is one dealing in fact with a question of "essential validity", and not with a question of form. Even if this case is to be regarded as dealing with a question of "essential validity" - which is a possible view - I am strengthened in my opinion that we should draw on the analogy of the English rule, according to which the validity of a marriage, from the point of view of its essential validity, should be determined by the personal law - that is to say, the law of the domicil of the parties at the time of the marriage; in other words, that in order to determine whether or not the civil marriage contracted by the parties in Poland in 1948 is valid or not, we must decide according to the personal law which applied to them at that time, namely, Polish law. Put differently, after paying due regard to the particular conception of the local law which governs matters of marriage - in this case, the Jewish law, which holds that the form in which persons contract a marriage is a matter affecting the very institution of marriage itself - even then we are directed, in accordance with the rule of private international law referred to, to prefer the provisions of the personal law of the parties at the time of their marriage, that is, the provisions of Polish law.

           

            My second comment is this. The rule according to which the law to be applied to matters of personal status is the personal law of the parties, is concerned with those cases where that law is the national law of the parties, for it is the national law – including the principles of private international law - which is to be applied (see the case of the Miller Estate (11). There is no doubt that in most countries the national law of the parties at the time of the marriage - particularly if the question that arises relates to the validity in form - will refer us to the lex loci celebrationis, and it will then in any case be proper to apply that law to the particular matter. It is not in all countries, however, that the rules of private international law which there apply render it imperative to refer to the lex loci celibrationis when the question referred to arises in the courts. In other words, there is the option in some countries of preferring the internal national law over the lex loci celebrationis for the purpose of validating a marriage contracted between the parties (see Wolf, ibid., pp. 340-341). In our present case - as I shall stress later - this whole problem does not arise, since the lex loci celebrationis and the national law of the parties at the time of the marriage are identical. I deem it proper, however, in order to make my own position clear, to point to the possibility of a divergence in some countries from the binding character of the rule which applies the lex loci celebrationis to the question here discussed, since a case may come before us at a future date in which the two are not the same, and even lead to different consequences in regard to the validity of the marriage.

 

            Having held that the parties were and are married, the next question to be considered is their rights and obligations for the purposes of the claim and counter-claim. It is clear that the reply to this question demands a reply to a prior question, namely, which law governs each of the two claims. To this question there is no one comprehensive reply - it is necessary to consider each of the two claims separately.

           

(1) The main claim. It is clear beyond all doubt that since, according to the statement of claim, the operative facts which constitute the cause of action in this claim all took place in Israel, the claim must be dealt with in accordance with the local law, and after we have replied to the question dealing with the validity of the marriage, no question of private international law will again arise. It was not submitted to us by counsel for the appellant that the provisions of the Mejelle should be applied in this matter, and it is, therefore, the provisions of the Civil Wrongs Ordinance that will apply. That being the case, the provisions of section 9(1) of that Ordinance - as was held by the learned judge - prevent the appellant from succeeding in a claim for damages based upon an act committed by his wife during the period of the marriage. It follows that the judge correctly dismissed the main claim.

 

(2) The counter-claim. What is the law which governs this claim? The reply of the learned judge was that it is Jewish law, and this is what he said in his judgment: -

 

            "As far as the counter-claim is concerned, that is, the claim for maintenance, it is not disputed that the defendant had no cause of action during the Polish period, and that if a cause of action exists it relates to the Israel period alone. Again, it is not disputed that for the purposes of the Israel period it is Jewish law which applies and the question is whether there is any reason why I should not recognise the Polish marriage for the purposes of a claim for maintenance under Jewish law... The award of maintenance to a wife in a proper case - a remedy recognised by Jewish law - is in no sense inappropriate in regard to the marriage contracted by the parties in Poland. I see no reason why Jewish law should not be consulted as to whether it would - according to its own provisions - recognise the remedy of maintenance to this defendant in the circumstances described in the counter-claim. The court need not concern itself with investigating the validity of that marriage, since such validity is postulated by the general law of the land, which determines this as a fact, having regard to Polish law, and by applying private international law. Jewish law is not required to give effect to a contract created by Polish law; what is required of it is to grant one of its remedies - if this be a suitable case - to the holder of a particular personal status. In other words, the only question addressed to Jewish law is this: What would you award to a married woman in such and such circumstances ? There is, therefore, no reason why I should not recognise the marriage between the parties for the purposes of the counter-claim for maintenance."

 

            Mr. Sheps, counsel for the appellant, made a threefold criticism of this part of the judgment: -

           

            (a) If maintenance is to be awarded according to Jewish law, then, in the light of the facts described in the Statement of Claim - including the fact that the parties celebrated their marriage by civil rites alone - the respondent cannot succeed in her counter-claim, since, according to Jewish law, maintenance cannot be awarded unless there exists a marriage celebrated according to religious rites.

 

(b) On the other hand, if the matter is to be determined by Polish law, such law has not been proved - neither its own provisions, nor the rules of its private international law.

 

(c) At the most, resort may be had to the principle of "the presumption of the identity of laws", for the purpose of determining the provisions of Polish law; but if this be so. then it follows that the provisions of Jewish law should be applied, which would not grant the counter-claim in view of the arguments set forth in sub-paragraph (a) above.

 

            If I have understood these criticisms correctly, they are based in the main upon the submission that Jewish law should not be grafted upon Polish law in the circumstances of this case. In other words, when Jewish law is asked which law it would apply to facts such as those alleged in the claim and established, it will unwillingy reply : "One of these facts is that the respondent is not married to the appellant according to religious rites, and to a woman such as this I shall not, therefore, award maintenance whatever the circumstances may be - whether she married the appellant according to civil rites or not, whether Polish Law - which recognises such a marriage - applies in Israel or not." Were this indeed the correct approach to the problem with which we are concerned, I would have thought there was substance in the criticism referred to - presuming that the judge was right in his conclusion that there is no basis in this case for applying the presumption that "a man does not indulge in sexual intercourse for the purpose of sin." In my view, however, that general approach is wrong, and I have therefore reached the same conclusion as was arrived at by the learned judge in regard to the obligation of the appellant to pay the maintenance awarded against him, although I have reached that conclusion by a slightly different route.

           

            My opinion is that it is imperative to distinguish between the question whether the wife has a right to maintenance at all, and the question of the amount of the maintenance to which she is entitled. The first question is one of a substantive right which is claimed by the wife, while the second question is one of the remedy which she seeks.

           

            The right. As far as the first question is concerned, I am of opinion that it too should be decided in accordance with Polish law. It is this law which conferred upon the parties the status of married persons. And as a result of that status, it conferred upon them certain rights and obligations. These rights and obligations continue to exist for so long as the status of marriage is preserved. For this purpose I do no more than repeat what I said in Halo v. Halo (12). at p. 204, that is to say: -

           

            "When we say that a person enjoys a particular status, whether it is the status of a married person, or the status of a citizen of the State, or a member of a religious community, it is understood that, by reason of such status alone, the law confers upon such a person certain rights, or imposes upon him certain obligations; and the good of the community (in the case of marriage) or of the group (in the case of citizenship or membership of a community) requires that the rights and obligations in question, shall remain in force as against the whole world. In other words, they are rights and obligations in rem, and this position remains for so long as that person continues to hold that particular status." (See also the two authorities cited in that judgment (ibid.).)

 

            Perhaps it would not be superfluous to repeat in addition the observations of Lord Greene in Baindail's case (17), which are cited above, that is to say, that when the appellant in that case acquired the status of a married person in accordance with Hindu law: -

           

            "...he had imposed upon the rights and obligations which that status confers under that law. That status" - and I add: with all the rights and obligations which flow from it – "he never lost. Nothing that happened afterwards, save the dissolution of the marriage ...could deprive him of the status of a married man" - and again I add: with all the rights and obligations which flowed from it - "which he acquired under Hindu law at the time of his Hindu marriage...".

           

            And, in conclusion, I rely upon the statements by Cheshire (4th edition, p. 659), which were approved by Pilcher, J. in Araujo v. Becker (26), that: -

           

"Not only the existence, but also the extent, of an obligation, whether it springs from a breach of contract or the commission of a wrong" or - so I would add - from a status acquired by a litigant - "must be determined by the system of law from which it derives its source."

           

            It follows from all I have said that the nature of the rights and obligations which flow from the source of the status of marriage acquired by the parties is to be determined by that law which conferred such status upon them, for were this not so, the expression 'status' would lose all its content. It follows that the right of the respondent to claim maintenance for herself from her husband must be decided according to Polish law, since such right - if it exists - has its source in the status of marriage which was created by that law.

           

            The rule, therefore, that the status of marriage imposes upon the husband the duty of maintaining his wife whom he has deserted, is so universal in our time, that the wife who applies to court and who has acquired her status through her marriage in accordance with a foreign law, should not be required to prove the provisions of that foreign law which confers that right upon her. Even were it not so, however, it is proper to assume, in a case such as this, that the foreign law is the same as local law. In other words, it is proper to assume that Polish law - in the same way as Jewish law - recognises the right of the wife to be maintained by her husband who has deserted her. According to this approach - that is to say, that the substantive right of the wife to maintenance is accorded to her under Polish law - in turning to Jewish law we do not ask that law whether it would, according to its provisions, afford the remedy of maintenance to this respondent in the circumstances set forth in the counter-claim, but we ask it whether, assuming that the parties were married according to Jewish law, it would oblige the husband to maintain his wife, the facts set forth in the counterclaim having been proved. If the reply is in the affirmative, then it follows that we must deduce that Polish law, too, would furnish the same reply. Since it is not disputed that Jewish law does indeed entitle the wife, who lives apart from her husband through no fault of her own, to maintenance, it must be held that Polish law, too, would grant her this right. I must only add that no question arises before us as to the application of the principles of private international law which are applied by the Polish court, and for that reason there is no need to prove those provisions, since at the time that the parties acquired the status of married persons, they were citizens of that country, it was the country of their domicil, and they also designated it as the country of their residence after the marriage.

 

            The amount of maintenance. I have reached the conclusion - though not without some difficulty - that this is a question of "remedy", and not one of "a substantive right", and that for this reason it must be determined in accordance with local law. It seems to me that we are concerned here with the giving of effect to a right to maintenance, and not with the extent of that right. I have not, indeed, found any direct authority laying down the principle as I have expressed it, nor have I found any authority against this proposition. I think, however, that it is possible to resort in this regard, by way of analogy, to the English rule which distinguishes between the right to recover damages for breach of contract - the existence, and also the extent, of which must be determined by the "proper law" under which the right was created - and the measure of damages which must be awarded as a result of such breach - which it is proper to determine in accordance with local law, the law of the country in which the court sits, to which the claim for damages has been brought. (See Cheshire, 4th edition, p. 659, and the judgment in D'Almeida's case (26).) Indeed, the expression "extent of the right or obligation" must not be confused with the expression "measure of damages". The first expression relates to the question of the degree of damage in respect of which compensation must be paid or the circumstances in which the damage must be regarded as being the direct consequence of the breach in question, while the second expression relates to the question of the sum which will constitute full satisfaction for the damage which was caused or the payment of which will be regarded as restitutio in integrum. If we apply this test to the matter with which we are concerned, then the extent of the right to recover - or the duty to pay - the maintenance relates to the question in which circumstances such rights or obligations exist - for example, whether the right or obligation is to be enforced when the reason for the husband's and wife's living apart is due to the wife's fault - while the amount of maintenance which the husband is obliged to pay to his wife relates to the question in which way effect is to be given to such rights or obligations.

 

            I am strengthened in my opinion by the following examples:

           

(a) There was a time in England when it was impossible for a wife, whose husband had deserted her and did not maintain her, to recover maintenance by bringing a monetary claim against him in a civil court. Her remedy was - and this remedy is still available today - to buy her necessaries from a merchant, and to debit her husband's account with that merchant with their price. The merchant, and he alone, was then entitled to sue the husband in a civil court for the price of the goods which he sold to the wife (see Rosenbaum v. Rosenbaum (13), at p. 1050).

 

(b) In the judgment last referred to, I attempted to show that all those remedies which are afforded by English law to a wife whose husband has deserted her and refuses to maintain her, for the implementation of the substantive right to recover maintenance from him, may be classified - where each such remedy relates to that substantive right - into one general category called "alimony". I also pointed out in that case that when a civil court in England awards alimony to a wife, it generally resorts to the practice - which was indeed no more than a practice - according to which the ecclesiastical courts in England used to award alimony, namely, by obliging the husband to pay an "ethical" allowance which did not exceed a third of the husband's income - where the matter related to his obligations to pay such an allowance on a fixed basis - or a fifth of his income - when the matter related to the payment of an ethical allowance for the period during which the main claim was pending, where such claim was based upon a cause of action constituting a matrimonial offence (ibid., pp. 1053, 1055). In resorting, however, to the practice referred to - and I emphasize this point - the civil courts of England merely act in accordance with a statutory provision - which has existed since 1857 - under which it is clearly laid down that the courts shall afford a remedy in accordance with the principles which used to be applied by the ecclesiastical courts in such matters. When, however, that same court, in the same case with which it is dealing, recognises the existence of the actual substantive right of the wife to recover maintenance in the circumstances referred to, it resorts to the principles rooted in the common law which take precedence over the practice referred to. (See the remarks of Duke J. in Dean v. Dean (27), at pp. 174 and 176.)

 

(c) And finally, in Levin's case (10), at p. 936, it was held by this court - after it recognised, relying upon Jewish law, the right of the respondent's wife to recover maintenance from her husband, the appellant - that the question of the amount of maintenance must be considered "in the light of the rule that the decision as to the amount of maintenance is within the discretion of the judge of first instance." In approving this rule the court indeed did no more than follow a previous decision given by the Supreme Court in the time of the Mandate.

 

            These three examples lead me to the clear conclusion that everything relating to the determination of the amount of maintenance is nothing more than a matter of the procedure for giving effect to the substantive right of a married woman to recover maintenance from her husband, and the obligation of the husband to pay such maintenance; in other words, that this is a matter of remedy and nothing more.

           

            If this conclusion is correct, then it is the lex fori which applies in connection with the fixing of the amount of maintenance - as distinguished from the obligation to pay such maintenance - and not Polish law. I shall be content in this connection to cite the dicta of Scrutton L.J., which he made in the case of The Colorado (28), at p. 108: -

           

"The nature of the right may have to be determined by some other law, but the nature of the remedy which enforces the right is a matter for the law of the tribunal which is asked to enforce the right."

           

            In applying the lex fori in order to determine that question of the amount of maintenance - whether the expression quoted relates to Jewish law, or to all those rules applied by the civil courts of this country in fixing the amount of maintenance which it obliges the husband to pay - including the tests laid down in Levin's case (10), and which were applied by the learned judge in the matter before us, I see no grounds - again applying a rule of the lex fori - for interfering with the discretion of the judge in fixing the maintenance in question at the sum which he laid down.

 

            From all this it follows that the appeal - also to the extent that it relates to the counter-claim - is without substance, and that the appeal as a whole, therefore, should be dismissed.

           

            I could have concluded my judgment at this point were it not that I feel bound to consider one basic question presented to us by counsel for the appellant in his attempt to prevent us from deciding that the law which determines the validity of the marriage of the parties is the foreign law which applied to them at the time that they contracted their civil marriage outside the country. Just imagine, says Mr. Sheps, that if that proposition is accepted, parties who celebrated their marriage according to Jewish law outside this country, at a time when they were citizens of a state which required the celebration of a marriage by civil rites alone, will not be regarded by the civil courts of Israel as married persons. And let there be no mistake about it, Mr. Sheps added with emphasis, that there are a large number of cases of Jews who celebrated their marriage by Jewish law alone, before their immigration to Israel, and surely the marriages of these Jews in such cases should be regarded as valid.

           

            In short, as Mr. Sheps argued, that very principle of "a healthy policy" which was stressed by the learned judge in upholding the validity of the civil marriage of the parties, obliges us to lay down a rule other than that which we have accepted, which is calculated to create a serious obstacle for Jews who belong to the category mentioned, and whose number is greater than those who celebrated their marriages by a civil ceremony alone before they came to Israel.

           

            The question raised by counsel for the appellant is undoubtedly a serious question which demands a well thought out reply. It is for this reason that I do not propose to run away from my duty upon the usual ground that when this question comes before us directly, we shall consider it and give our decision. The reply which should be given to this question may also be a factor which should properly be considered in laying down the rule according to which the validity or invalidity of a marriage such as that celebrated between the parties in this case should be determined. On the other hand, since the question referred to only arises indirectly, I do not intend to deal with it at any length, but shall content myself with pointing to the general line of thought which has led me to the conclusion which I have reached.

 

            My conclusion is as follows : I incline to the view that even a civil court in Israel, when faced with the question of the validity of a marriage celebrated between Jews in another country by Jewish law alone, will be found to recognise such marriage, even if the law of that country of which the parties were citizens at the time of such marriage only recognises a marriage celebrated in civil form.

           

            I have already dealt, in another part of my judgment, with the rule - which was already laid down in the time of the Mandate - that the personal law of stateless Jews is Jewish law. It is true that there is no mention of such a rule in the Palestine Order in Council itself, and it is possible indeed to hold another view, namely, that the personal law of such Jews should be deemed to be the law of their last nationality (in regard to this possible approach, see the remarks of Wolff, ibid, p. 103, note l). It is not my intention, however, as I have already said, to depart from the rule referred to, more particularly as in my opinion it is sound. I do wish, however, to express my disagreement with the approach which was the basis at that time for the acceptance of that rule - namely that Jewish law is the religious law of such Jews, and that it is only for this reason that it must be regarded as their personal law (in connection with this view, see Freyberger's case (1)). Such a conception of the matter appears to me to be fundamentally wrong, since it disregards the historical development of the Jewish people throughout the generations, and also because this conception is artificial and unrealistic, since it results in compelling unbelieving Jews - and there are such Jews - to obey Jewish law only because it is their "religious law" as it were - an impossible situation. In my view, the true basis of the rule referred to is that Jewish law is the national law of stateless Jews, no less than it is the national law, in matters of personal status, of Jewish who are citizens of Israel. I go further, however, and say that when a question such as that posed by counsel for the appellant arises before an Israel court, that court will certainly be entitled - for the limited purpose of recognising the validity of a marriage celebrated outside the country by Jewish rites alone - to regard Jewish law as the national law of the parties - that is to say, within the meaning of Article 64 (ii) above - even if the parties, at the time of the marriage, were citizens of a foreign state which does not recognise such marriages. I shall clarify my view.

 

            It is almost superfluous to explain today - what must now be plain to all - that the Jews, even after they were exiled from their country, never became, in their own eyes, a religious sect. According to their own conceptions, they never ceased to be a nation together with the other nations of the world. Their absence from their own country, to which its sons continued to be faithful, was temporary, and carried with it, through all its wanderings, and during all periods of its exile, that most valuable treasure - its culture, its and West Library, p. 69), said that this was:-

           

            During the long period, however, in which the Jews were compelled, in the lands of their dispersion, to confine themselves within the Ghetto walls, Jewish law soon assumed to a growing degree a religious form. But it never ceased, for this reason, to be the national law of the Jews, even after a breach had been made in the walls of the Ghetto and the Jews entered the world outside those walls. And this is also true of those Jews who, having "tasted enlightenment" and having acquired civil and political rights in the countries in which they lived, began to regard some of the provisions of Jewish law, and perhaps many of those provisions, as foreign to their spirit. In speaking of the place of the "Shulhan Aruh" in the life of the Jewish people, Ahad Ha'am, in his essay "Ancestor Worship" (Essays, Ahad Ha-Am, translated and edited by Leon Simon, East and West Library, p. 69), said that this was:-

           

            "The book closest to the spirit of our people having regard to its situation and needs during those generations which accepted it for themselves and their descendants. And if we declare 'that this is not our law', then our declaration will be untrue, for this is indeed our law in the form that it necessarily assumed at the end of the Middle Ages, just as the Talmud was our law in the form that it assumed at the end of an earlier period, and as the Bible was our law in the form that it assumed when the people was still living a national existence in its own country ; these three together are but three different milestones along the road of the development of one entity - the spirit of the Jewish people - in accordance with its position and needs during different periods."

 

And in another essay (The Law from Zion) he wrote :-

 

            "Only by the complete atrophy of his feeling for his people can a Jew be so 'emancipated' as to be able to regard all those things that have been sacred to the people from time immemorial with the indifference and detachment of an entire stranger, who may accept or reject them, may treat them with reverence or contempt, on the strength of a purely intellectual assessment of their objective worth. A Jew who has not yet suffered that kind of atrophy cannot rid himself of his attachment to his national past and all it held sacred, even though he may have become a thoroughgoing sceptic in matters of religion ; and the only difference between him and the religious Jew is that he says 'I feel' where the other says

'I believe.' "1⁾

 

            It is, indeed, a separate question whether, and to what extent, foreign States recognise the application of Jewish law - as part of their municipal law - to Jews who were resident in such places, just as it is a separate question whether - as one must suppose - those states which accorded a measure of recognition to Jewish law, did so upon the basis that that law was the law of a particular religious aspect that dwelt among them. This latter manifestation, in fact, provides reliable testimony as to the vital part played by Jewish law in respect of Jews in various countries. In this regard it is fitting that I should not pass over the observations made in the year 1795 by Lord Stowell, when called upon, sitting as an ecclesiastical court in England in Lindo v. Belisavio (30), to determine the validity of a marriage celebrated according to Jewish law. This is what he said: -

           

            "This is a question of marriage of a very different kind" (that is to say, which was not celebrated in accordance with the provisions of Canon Law) "between persons governed by a peculiar law of their own, and administered, to a certain degree, by a jurisdiction established among themselves - a jurisdiction competent to decide upon questions of this nature with peculiar advantage... If I am to apply the peculiar principles of Jewish law, which I conceive is the obligation imposed upon me, I may run the hazard of mistaking those principles, having a very moderate knowledge of that law."

            (As quoted from the judgment of Stirling J. in De Wilton's case (29)).

           

            As I have said, I do not attribute a great deal of importance - from the point of view of the problem with which we are dealing now - to the question of the extent of the application of Jewish law, as part of the municipal law of foreign states, to their Jewish residents. I do this since the very moment that we admit - as we are obliged to admit - the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We shall then conclude - against our will - that the Jewish people really treated Jewish law, throughout their existence and their dispersion, as their special property, as part of the treasure of their culture.

           

            It follows that this law served in the past as the national law of the Jews, and even today possesses this national character in respect of Jews wherever they may be.

           

            If this conclusion, based as it is upon the historical approach which I have mentioned, is correct, we can easily rid ourselves of that artificial conception - with which we have already dealt - which compels obedience to the 'religious' law by persons who in no sense regard themselves as religious. That conclusion, moreover, brings us to a satisfactory solution of the problem raised by counsel for the appellant.

           

            I must now return to interpret the expression "law of his nationality" which is mentioned in Article 64(ii) of the Palestine Order in Council. Generally speaking, it will be proper to assign to this expression its ordinary and accepted meaning, that is to say the law of the country of which the party affected was a citizen or national at all relative times, the lex patriae. However, in regard to the situation assumed by counsel for the appellant in posing the question referred to, we may extend the meaning of the expression referred to in such a way as also to embrace Jewish law, where the parties who were Jews, and foreign citizens, married outside this country ; that is to say, for the restricted purpose of validating such a marriage, it is proper to prefer here, over and above the foreign national law (lex patriae) which governed the parties at the time of their marriage and which only recognises marriages celebrated in particular civil form, the other national law which they possessed then, and which continues to be their national law, that is, Jewish law. If, moreover, we follow this course, and lay down the law in these terms, we shall also remain faithful to the principle - a widely-accepted principle in this branch of the law - that it is the duty of the judge who investigates the question of the validity of a marriage to do his best, so far as the law enables him so to do, to hold a marriage valid, and not invalid.

 

            This latter approach, which prefers the one national law of a person who possesses dual nationality over his other national law, with the object of validating a marriage which is valid according to one of those laws, but not to the other, is not foreign to private international law. In this regard I draw attention to the example furnished by Martin Wolff in his book referred to above, at pp. 130, 131.

           

            To sum up, I myself would incline to regard the marriage of Jews, as presented in the example of counsel for the appellant as valid. Since this is so, the question posed by him has no effect on my conclusion in regard to the correctness of the principle according to which I have held that the 'Polish' marriage of the parties is also valid.

           

            On the basis of what I have said, I agree that both parts of the appeal should be dismissed.

           

WITKON J. I agree that the appeal should be dismissed, though I differ somewhat from the grounds which moved my colleagues Olshan and Agranat JJ. to reach that result. As will appear, I am in general agreement with the learned judge who sat in this case in the court of first instance.

 

            My starting point is the well-known principle that in any case involving a 'foreign' element - foreign nationality, residence outside the country, a contract or act executed or performed in another country and so forth - it is the duty of the court to examine whether it is necessary to resort to the principles of private international law before having recourse to the internal municipal law. The provisions of the municipal law are generally directed to cases in which a foreign element does not arise, unless that law itself lays down a provision specifically directed to such elements. Where a foreign element appears in any case, resort must first be had to the principles of private international law, and it must be ascertained whether those principles refer us to any foreign law or not. The principles of private international law take precedence over any other law which is purely municipal and internal.

 

            There are two principles of private international law which must be considered in this case, when we examine the validity of the marriage between the appellant and the respondent, and both these principles prevent us from examining this problem according to the religious law. And this is the first principle: when a fundamental question falls to be considered - in this case, the question whether the appellant is entitled to claim damages from the respondent, and whether he is liable for maintenance - and when this question is dependant upon the reply to another question (an incidental question) - in this case the question of the validity of the foreign marriage celebrated by the parties in Poland - the court must consider the incidental question according to the law (the municipal or foreign law) which applies to that question and not according to the law (the municipal or foreign law) which applies to the fundamental question. That was decided in the case of Goodman's Trusts (18), and it is in this respect that the importance of that decision lies in connection with the case before us. The second principle is that the question of the validity of the marriage - at least from the point of view of form - must be tested according to the law which applied in the place and at the time of the celebration of the marriage (locus regit actum), and no change in the "personal law" of the parties - resulting from a change in their citizenship, their residence, or any other change - can operate to invalidate that which was valid at the time and in the place where the marriage was celebrated. These two principles refer us to Polish law, which applied to the parties at the time and in the place of their marriage, and there is again no room for the application of any other law in regard to the question of the validity of the marriage.

 

Counsel for the appellant relied on Article 47 of the Palestine Order in Council, and submitted that the matter before us is governed by the religious law, that is to say, Jewish law, and that according to that law the civil marriage celebrated between the parties in Poland is invalid. That law, counsel submitted, is universal in its application, and applies to Jews, who are governed by it in matters of personal faith - that is to say, Jews who are not foreign nationals at the time of the filing of the claim and therefore subject to the law of their nationality in accordance with Article 64 of the Order in Council. This submission disregards the two principles of private international law which I have stated above. It is based, apparently, upon the assumption that to the extent to which Article 47 brings into application, by way of incorporation by reference, Jewish law - which itself is universal in its application to Jews wherever they are, be their nationality or residence whatever it may - there is an indication that the Mandatory legislation intended to exclude the principles of private international law in respect of Jews, who are thus subject to Jewish law. My reply to this submission is that this was not the intention of the Mandatory legislature. The provision in Article 47 is a provision of the municipal internal law, and does not form an exception to the rule which I have stated: that private international law takes precedence in its application over municipal internal law. The provision in Article 47 is also subject to the rules of private international law. And if it be argued that Jewish law is universal, the reply is that every religious law, in its application in this country, flows from an act of the secular legislature, namely, Article 47 of the Order in Council - from the point of view of the basic norm according to the theory of Kelsen - and derives its force from that Article. The secular legislature only conferred legal force upon religious law subject to the principles of private international law. This, in any event, is the proper approach for a civil court in this country. And if it be argued that the position in a religious court is otherwise, as was hinted in Cohen's case (9), (which was cited in a judgment of my colleague Olshan J.), and that there is in this, therefore, evidence that a civil court too should apply religious law in accordance with Article 47 without having regard to the principles of private international law. otherwise there might be different results in the two judicial fora - the civil and the religious. If this result could be brought about in one and the same case by the litigants' choosing which court they will approach, the result could certainly not be one contemplated by the legislator. My opinion, therfore, is that a religious court, too, is obliged to act in accordance with the principles of private international law, once the legislature has conferred upon it jurisdicton in matters of personal status or in any other matter, and that there is no fear of there being different results in the two jurisdictions which exist side by side in this country.

 

            We cannot apply the religious law - in accordance with Article 47 - to a particular matter before we have ascertained whether the principles of private international law refer us to a particular foreign law. In the present case we have found that Polish law applies, in view of the two principles of private international law to which I have referred - the principle relating to decisions of incidental questions, and the principle that a change in citizenship or residence has no effect upon the matter. This being so, Jewish law has no application to this case, in spite of its universal character. It is Polish law which applies, because it is the law which governed the parties at the time and place of their marriage. The provisions in Article 64 of the Order in Council are, in my opinion, irrelevant to this matter, and it is only fortuitous that the 'national' law at the time and place of the marriage is the same law which applies at the place of its celebration. If, for example, private international law had referred us to some other foreign law - not Polish law - we should have applied that law without any reference to Article 64 and without paying any regard to the Polish nationality of the parties in the past. The only source for the application of Polish law is, as I have said, private international law, which applies in this country by virtue of Article 46 of the Order in Council.

           

            My colleague, Agranat J., has asked the question how one can grant relief to the respondent under Jewish law when her status as the wife of the appellant is only recognised by Polish law, and he draws a distinction between the "right" to claim maintenance and the "amount" of the maintenance to which she is entitled. In my opinion there is no necessity to draw such a distinction and for this reason I express no opinion upon it. In my view the institution called "marriage" possesses a universal character, and a marriage under Jewish law is no different from what is accepted in the rest of the civilised world. I have no hesitation, therefore, in applying the right to maintenance of a wife married under Jewish law in favour of a wife whose marriage is based upon foreign law, but is recognised by the law of this country.

           

            In view of what I have said above there is no necessity for me to deal with the question of the validity of the marriage between the respondent and the appellant from the point of view of religious law, namely Jewish law. Since, however, my colleague Olshan J. has dealt at some length with this question, I wish to state in detail the grounds which have impelled me to differ from his opinion.

           

            The learned judge in the court below laid down the principle in the following terms: -

           

            "Since the parties at no time intended to be married under the provisions of Jewish religious law, that law will not regard their union as a marriage. The cohabitation of the plaintiff and the defendant cannot be regarded as cohabitation for the purposes of a religious marriage, though it certainly was cohabitation for the purposes of marriage under Polish civil law.

 

            There is no presumption to assist the defendant in her submission that it must at least be presumed that she has been married according to Jewish religious law. From the point of view of Jewish religious law the parties have never enjoyed the status of a married couple."

           

            I do not wish to raise the question whether this is also the rule under Jewish law, since my colleague Olshan J. also did not do so. While Olshan J. was of opinion that there was nothing in the evidence of the appellant to displace the presumption of Jewish law "that a man does not indulge in sexual intercourse for the purpose of sin," it seems to me that the learned judge, who heard the witnesses and weighed their evidence, was justified in reaching the conclusion that the appellant at least had no intention of marriage. Although the judge did not believe the appellant in regard to other matters on which he testified, he accepted his evidence on this point, and there was also nothing before him to contradict this evidence. On the contrary, even the respondent said (at p. 28 of the record) : "My husband is not orthodox" ; and this was the ground for his refusal to celebrate a religious marriage because, as he said, "It is unnecessary". If, therefore, the principle is as stated by the learned judge, namely, that the presumption in question only applies to Jews who are "orthodox" , and who intend to be sanctified, then there was a sound basis in the evidence for his conclusion, and we are not entitled, in my view, to interfere therewith. My colleague Olshan J. points out that in a case dealing with maintenance there is no need to decide finally and irrevocably as to the validity of the marriage. In my view, this presumption is nothing but a rule of evidence. And in any event, what difference can it make ? If there is no room for the application of the presumption, then the marriage has not been proved and if there is room for the application of the presumption, then the marriage has been proved for all purposes, as long as that evidence has not been contradicted. I see no distinction in this regard between a claim for maintenance and any other claim which gives rise to the question of the validity of the marriage. A distinction such as this creates the impression that there is some distinction between a marriage "de jure" and a marriage "de facto". In my opinion, the public interest demands that we give a clear reply to the question of the validity of the marriage, nor may we leave the parties in a state of doubt as to whether they are married one to the other, or not.

 

            As I have said, my reply to this question is based upon Polish law, which operates in this case by virtue of the principles of private international law, and, as was held by the learned judge, I too answer this question in the affirmative.

           

            Appeal dismissed.

            Judgment given on February 19, 1954.

C.A. 525/63

 

           

REUVEN and ZILPAH SHMUEL

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court Of Civil Appeal

[June 30, 1964]

Before Agranat D.P., Landau J., Berinson J., Witkon J. and Cohn J.

 

           

Judges - disqualification - religious bias - Courts law, 1957, secs. 7(a), 7(b)(2), (3) and 36.

 

 

The Attorney-General applied for an order against the applicants to remove their children from a Christian missionary school where they had placed them and to arrange for the children's education in a Jewish school. In those proceedings in the Tel Aviv District Court, the applicants requested that the sitting judge should disqualify himself because he was an orthodox Jew and people might gain the impression that he would therefore not deal with the matter impartially. The judge refused to do so and the applicants moved the Supreme Court to have the hearings transferred to another judge of the Tel Aviv District Court.

 

Held  (1) The statutory provisions regarding transfer of cases go only to change of venue in the strict sense of place of trial and not the personality of the judge, and then only when the judge concerned consents thereto.

 

(2) A judge may certainly possess personal views and beliefs but he must not allow these to pervert his allegiance to the law either in letter and spirit. Judges are presumed to be conscious of and to abide by this obligation.

 

(3) Whilst there is no dispute that a judge's decision not to disqualify himself should be subject to judicial review, there is no room for the notion that a litigant should be able to choose to be tried by a judge whose views please him.

 

(4) The decision of a judge not to disqualify himself may be an administrative and not a judicial act, and as such open to review like any other administrative act by the High Court of Justice especially when no right of appeal against the act exists. As a judicial act, the decision is not reviewable under the High Court's statutory powers. In the absence, however, of any remedy, the decision may be challenged indirectly or incidentally by way of an ordinary appeal against the judge's final judgment in the case.  A decision on a challenge to the composition of a court before it has been constituted is an administrative act.  A like decision after the proceedings have commenced isa judicial act which can only be contested by ordinary appeal.

 

(5) The High Court of Justice will not order prohibition either against a court or a particular judge where the remedy of appeal is available.

 

(6) Interlocutory appeal against a judge's decision not to disqualify himself is in any event only possible under the law in respect of civil and not criminal matters. The legislature might well consider a reform of the law in this regard.

 

Israel cases referred to:

 

(1)   H.C. 295/59 - Moshe Goldenberg v. President of Tel Aviv-Yaffo District Court and others (1959) 13 P.D. 2207.

(2)   Misc. App. 3/50 - Yosef Weinberg v. Attorney-General and another (1950) 3 P.D. 592.

(3)   H.C. 174/54 - Yisrael Shimel v. Competent Authority and Appeal Committee for the purpose of the Law regulating Seizure of Land in an Emergency (1955) 9 P.D. 459.

(4)   H.C. 279/60 - Ulame Gil Ltd. v. Moshe Yaari and another (1961) 15 P.D. 673; VI S.J. 1.

(5)   H.C. 203/57 - Eliezer Rubinski v. Competent Officer under Cooperative Houses Law (1958) 12 P.D. 1668.

(6)   H.C. 23/50 - Yosef Weinberg v. Attorney-General and another (1950) 10 P.M. 85.

(7)   Cr.A. 239/54 - Bess Perah v. Attorney-General (1955) 9 P.D. 397.

(8)   H.C. 49/62 - Aharon Kluger and others v. Inspector General of Police and others (1962) 16 P.D. 1267.

(9)   H.C. 206/59 - Shlomo Gilah v. Jerusalem Magistrate and others (1960) 14 P.D. 1709.

(10) F.H.15/62 - Societe des Ateliers Pinguely Ville Gozet S.A. v. Aharon Kluger and others (1962) 16 P.D. 1539.

(11) H. C. 125-127/50 - Kvutzat HaHugim Bet HaShitah and others v. Haifa Committee for Prevention of Profiteering and others (1951) 5 P.D. 113.

(12) H.C. 91/61 - Israel Film Studios Ltd. v.Jerusalem District Court (1961) 15 P.D. 782.

(13) H.C. 326/61 - Natan Kravchik v. Attorney-General and others (1961) 15 P.D. 2389.

(14) H.C. 142/64 - Carmel Mahviti v. Attorney-General and others (1964) 18 P.D. 449.

(15) H.C. 250/61 - Moshe Dvik v. President of Supreme Court and others (1961) 15 P.D. 2529.

(16) H.C. 66/63 - Attorney-General v. Beersheba Traffic Judge (1963) 17 P.D. 1056.

(17) H.C. 307/51 - Y. Lalo v- Tel Aviv District Court Judge (1952) 6 P.D. 1062.

 

English cases referred to:

 

(18) Dimes v. Proprietors of Grand Junction Canal 10 E.R. 301 (1852).

(19) R. v..Camborne Justices and another (1955) 1 Q.B. 41; (1954) 2 All E.R. 850.

(20) Eckersley and others v. Mersey Docks and Harbour Board (1894) 2 Q.B. 667.

(21) R. v. Rand and others (1865-66) L.R. 1 Q.B. 230.

(22) Colonial Bank of Australasia and another v. Willan (1873-74) L.R. 5 P.C. 417.

(23) R. v. Cheltenham Paving Commissioners 113 E.R. 1211 (1841)

(24) R. v. Recorder of Cambridge 120 E.R. 238 (1857).

 

American cases referred to:

 

(25) No. 721 Jewel Ridge Coal Corp. v. Local No- 6167, United Mine Workers of America and others 89 L.Ed. 2007 (1945).

(26)      Korer v- Hoffman 212 F (2d) 211 (1954).

(27)      Gulf Research & Development Co.v. Leahy and others 193 F(2d) 302 (1951).

(28)      Roche and others v. Evaporated Milk Ass. 319 U.S. 21 (1943).

(29)      Minnesota & Ontario Paper Co. and others v. Molyneaux 70 F (2d)545 (1934).

           

Y. Ben-Menashe for the applicants.

Z. Bar-Niv, State Attorney, and P. Albek for the respondent.

 

LANDAU J. This is an application for leave to appeal against the decision of His Honour Judge Kisser dismissing the applicants' application for consent to transfer to another judge the hearing of a guardianship claim pending before him as a sole judge of the Tel Aviv-Jaffo District Court.

 

            In those proceedings the Attorney-General had sought an order against the applicants to remove their three children from a Christian missionary institution where they were and to arrange for their admission to a Jewish school. The application to transfer the hearing was based on section 36 of the Courts Law, 1957. At the beginning of his decision in question Judge Kister said

           

"Section 36 deals with a transfer from the court of one locality to the court of another locality, and since Mr. Ben-Menashe does not ask for the matter to be transferred to the District Court of another locality, for that reason alone the application is to be dismissed."

 

Nevertheless the judge went on to deal with the application on its merits and found no cause for disqualifying himself from sitting and hearing the action.

 

            On the application for leave to appeal Mr. Bar-Niv, the State Attorney, raised the fundamental question of the correct interpretation of section 36 and the remedy of a party who contends that a judge is disqualified from sitting.

           

            Section 36 provides:

           

"Where a matter has been or is to be brought before a District Court or Magistrate's Court in one locality, the President of the Supreme Court or his Permanent Deputy may direct that it be dealt with by a court of the same level in another locality; but a direction under this section shall not be issued after the commencement of proceedings in the matter save with the consent of the Judge who has begun to deal with it."

 

The learned State Attorney submits that the section is to be read literally: it speaks of the transfer of a matter from the court of one locality to the court of another locality and does not deal with the transfer of a matter from one judge to another in the same court. In this connection he asks us to demur from previous decisions of this Court expressing a view contrary to his. The first of these decisions was given in Goldenberg v. President of Tel Aviv-Yaffo District Court (1) which involved an order nisi to transfer the hearing of a civil action from the judge dealing with it to another in the same court. It was said there by Olshan P. (at p. 2208) that

 

"We are of the opinion that in making the present application the

petitioner erred as regards jurisdiction.

 

The petitioner argues that an application to transfer a hearing fromone judge to another has actually the character of an application for prohibition and for that, he urges, one must apply to the High Court of Justice.

Even if the petitioner is right in assimilating an application under section 36 of the Courts Law, 1957 to an application for prohibition, the answer is that if a given matter for which prohibition is desired is regulated by the legislature in a particular manner, it must be determined in accordance with the manner laid down by the legislature. Clearly, according to the rule found by the President (Zmoira) in Weinberg v. Attorney-General (2) the transfer of a hearing to another locality includes its transfer to another judge. It is therefore obvious that under the legislature's regulation of the matter in section 36 of the Courts Law, 1957, the petitioner's application falls within the section. Hence the course pursued by the petitioner in this instance is not well-founded."

 

In H.C. 282/63 Rehana v. Atory (unreported) this Court followed Goldenberg(1) and held that where the judge who is sitting in a case refuses to disqualify himself and for that reason the applicant cannot obtain a transfer of the proceedings under section 36 of the Courts Law, no jurisdiction is conferred on the High Court of Justice to transfer them to another judge.

 

            Weinberg (2) was decided before adoption of the Courts Law and Goldenberg (1) and the unreported case after its adoption. In both of the latter two this Court accepted the rule in Weinberg as binding without especially examining the effect of section 36 and without argument on the question, both being heard in the presence of the applicant alone. Here Mr. Bar-Niv has argued that section 36 has made a basic change and therefore the rule in Weinberg (2) no longer applies Moreover, he has cast doubt upon the correctness of the Weinberg rule itself at the date when it was given. I accept his argument and also concur in his doubt.

           

            In Weinberg (2) Zmoira P. explained the English concept of "change of venue", found in section 21 of the Courts Ordinance, 1940, and held that it also bears the broad meaning of the transfer of a matter from one judge to another. May I be permitted to say that it bears this meaning with great difficulty. In any event, there is no dispute that the common meaning of "change of venue" refers to the locality of a trial, and historically the particular place to which the jury has been summoned. A change of venue is called for when fear exists that because of conditions prevailing in a given locality, such as inflamed public feeling, a jury cannot be mustered which will be able to deal with the matter impartially (Blackstone's Commentaries, vol. 3, p. 383).

           

            Why, nevertheless, did the Court in Weinberg (2) adopt the forced meaning of "change of venue"? Because "without such meaning it would be impossible for a defendant to apply for disqualification of a judge" (at p. 597), the Court pointing out that section 62 of the Ottoman Civil Procedure Law had been repealed without replacement. It appears to me that even failing express provision of enacted law a source can be found for the rules regarding the disqualification of judges. I shall return to this question later.

           

            Even if it is possible to rely on Weinberg (2) for the meaning to be given to the English concept of change of venue, it cannot be treated as a precedent for the construction of section 36 of the Courts Law which, written in Hebrew, speaks of the transfer from one locality to another. In the course of the enactment of the section both aspects - transfer from locality to locality and transfer from judge to judge - were in the contemplation of the legislature. Clear evidence of that is to be found in the bill of the Courts Law published in Reshumot. Section 46 of the bill contained the substance of section 36 of the Law as finally adopted and section 39 covered "the circumstances in which a judge shall not sit". The latter is omitted from the Law in its final text and we do not know who or what brought about its omission... .

           

            The phrase "a District Court or Magistrate's Court in one locality" is quite clear in its literal sense. It deals with the court as an institution and not with the judge as a person. A "personal" meaning cannot be forced into the word "locality" which it does not possess. From the fact that in Weinberg (2) "change of venue" was held to mean both a transfer of locality and a transfer of judge, one may not deduce that in Hebrew the former means also the latter.

 

            Moreover, section 36 refers to a matter which has been "or is to be brought" before a particular court. The locality of the court before which a matter is to be brought is fixed by law but there is no provision of law which from the outset compels a particular matter to be brought precisely before a particular judge. That is left to the discretion of the President of the court under sections 4(b) and 16(b) of the Courts Law or the Chief Magistrate in consultation with the judges of the Magistrate's Court under section 26. as the case may be.

           

            The latter part of section 36, regarding transfer of a matter after proceedings have commenced, was added (in the Knesset) to safeguard the independence of the judges, so that no matter which they had already commenced to hear should be withdrawn from them against their wishes. That does not go at all to the question of the personal disqualification of the judge dealing with a matter. Furthermore, had section 36 also dealt with a judge's personal disqualification, why distinguish between a trial which has not yet begun and one which has, and only in the latter event require consent of the judge concerned?

           

            Accordingly, I maintain that section 36 of the Courts Law merely prescribes the mode of transferring a matter from one court to another in point of locality, like the classic change of venue, and it has nothing to do with the disqualification of the individual judge. Hence the learned judge was right in the point he made at the beginning of his decision on the subject of the present application, which is enough for dismissing it.

           

            Since, however, the basic question has been raised as to the remedies available to a party seeking to disqualify a judge for reasons of bias, I shall add a number of observations to elucidate this important subject.

           

            The learned State Attorney submits that in Israeli law there is no disqualification of judges at all and the only remedy of a party who feels aggrieved by a judge's bias is to appeal for annulment of his judgment. Mr. Bar-Niv sought to deduce this from the omission of section 39 of the bill, as above, from the final text of the Law, as well as from the judgment of the House of Lords in Dimes v. Grand Junction Canal (18).

           

            I cannot go along entirely with the State Attorney in his submission. We can only deduce from the omission of section 39 of the bill that the Israeli legislature abandoned the attempt of defining in enacted law the grounds for the disqualification of judges, but its silence does not prevent us from referring to the sources of English Common law to fill the gap in our legal system. It is necessary, in my opinion, to have recourse to these sources in this regard since it is unthinkable that a party in this country should be powerless before a biased judge. We may indeed find in Blackstone (vol. 3, p. 361) an extreme view similar to that of Mr. Bar-Niv.

           

"By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now it is otherwise, and it is held that judges and justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such behaviour would draw down a heavy censure from those, to whom the judge is accountable for his conduct."

 

Blackstone's teaching that disciplinary sanction against the biased judge is sufficient did not, however, find favour with the English courts, witness the judgment in Dimes (18). There the Lord Chancellor himself had decided a matter affecting a company in which he was shareholder but the House of Lords did not hold back from setting aside the judgment. In doing so, it adopted the opinion of Parke B. (at p. 312), who said

 

"We think that the order of the Chancellor is not void; but we are of opinion that as he had such an interest which would have disqualified a witness under the old law, he was disqualified as a Judge; that it was a voidable judgment...."

 

            This court has followed English case law when the bias of persons possessing judicial powers was in question (Shimel v. Competent Authority etc. (3); Ulame Gil Ltd. v. Yaari (4)]. Examination of the precedents cited in Shimel, and particularly R. v. Camborne Justices (19) also cited to us by Mr. Bar-Niv, shows that as regards the substantive rules of disqualification by reason of bias no difference exists between judges and other persons possessing judicial powers.

           

            The main question is not as to the substantive rules but the procedural means by which these rules can be effectuated, and more precisely a party's remedy against a judge who refuses to disqualify himself. If the decision on disqualification is left solely to the judge himself, acting in accordance with his conscience, the inevitable consequence will be that if he does not find himself disqualified, he is not to be disqualified subsequently in an appeal against his judgment in the dispute between the parties. We have already seen that this is not the Common law rule and Mr. Bar-Niv also did not suggest that. Of possible solutions of the problem, the extreme one is that a judge must withdraw immediately upon a party raising the question of disqualification. Only in such a case can we speak of the actual disqualification of a judge by a party. That is the position in England with regard to county court judges (see County Court Rules, O.16, r. 2, in County Court Practice, 1963, p. 389). An intermediate solution is that the decision rests initially with some other authority, under the French Criminal Procedure Code (articles 668 ff.) the senior presiding judge of the Court of Appeals (see also articles 378 ff. of the French Civil Procedure Code, which inspired section 62 of the Ottoman Civil Procedure Law) or the court of which the judge whose disqualification is sought is a member (that seems to be the statutory arrangement in the Military Jurisdiction Law, 1955, sections 310-15, 343 ff.). Under Common law the disqualification of a judge is clearly a cause for annulling his judgment after close of the trial. But it is undesirable that a party should be without remedy to effectuate a substantive right of his until that late stage. If the judge is really disqualified, it is a waste of the time and effort fruitlessly invested in proceedings which will ultimately be set aside. In England indeed prohibition may lie against a judge of an "inferior" court which will bar him from continuing to hear a case (Halsbury Laws of England, 3rd ed., vol. 11, p. 114), and this Court so proceeded in Ulame Gil Ltd. (4). As regards courts which are not "inferior" I have not come across any English decision to the effect that the only remedy is appeal at the end of the case. Dimes (18) did not so hold but left the question open. As Parke B. said (at p. 312)

           

"If this had been a proceeding in an inferior court, one to which a prohibition might go from a court in Westminster Hall, such a prohibition would be granted, pending the proceedings, upon an allegation that the presiding Judge of the court was interested in the suit; whether a prohibition could go to the Court of Chancery, it is unnecessary to consider" (emphasis added).

 

 (The necessity for that did not arise because the proceedings before the Lord Chancellor had already terminated when the House of Lords dealt with his disqualification.)

 

            Since the enactment of the Courts Law, 1957, we are no longer bound, in my opinion, to the rules relating to prohibition in England, and the distinction between the Magistrate's Court as an "inferior court" and the other courts with which the Law deals has ceased to exist. Henceforth we must find the answer to the question before us - whether in fact appeal after close of proceedings is the only remedy available to a party who alleges that the judge is disqualified - within the frame of the Courts Law itself. Prima facie matters of this kind come under section 7(b)(3) dealing with the jurisdiction of the High Court of Justice to order that individuals having judicial powers refrain from dealing or from continuing to deal with a particular matter. But what of the proviso which excludes from the application of the Law "courts dealt with by this Law"? I do not find this proviso an obstacle to the exercise of the jurisdiction of the High Court of Justice. A judge who rejects the submission of a party that he is personally disqualified from dealing with a matter brought before him does not thereby exercise the jurisdiction of a court but expresses his opinion on the preliminary question of his personal qualification to sit in trial; and no question arises here of the jurisdiction of the court as such. In other words, the decision of a judge not to disqualify himself (as well as his decision to disqualify himself) is not a judicial decision in the full sense of the word but pertains to "the border country" of judicial administration, similar to the decision of the President of a court that a particular judge should hear a given case. This is patent when a court sits, for example, in a bench of three and a plea of disqualification is raised against one of the three judges. If he does not think himself disqualified and his two colleagues disagree with him, the latter, in my view, cannot force him by a majority decision to withdraw (in the absence of express statutory authority as in the Military Justice Law). The decision to continue dealing with the matter is therefore his personal decision and not the decision of the court. And it makes no difference if the court consists of a single judge since we must still distinguish the court as an institution having jurisdiction and the judge who serves on it. Moreover, a judge's decision not to withdraw is taken by him on the basis of facts relating to him personally and known to him more than to others. Such a decision is accordingly the complete opposite from a judicial decision on the basis of facts proved before the court in the customary manner. It should be noted that in French civil procedure enacted law accords an express right of appeal against a decision regarding the disqualification of a judge (article 391). In discussing the question whether this right of appeal is also available to the side opposing disqualification, Glasson and Tissier, Procedure Civile, (1925) vol. 1, p. 155, say

 

"Il ne s'agit pas ici d'un litige a juger, mais plutot d'une question d'administration judiciaire, de la composition du tribunal qui doit statuer sur un litige."

 

I should add that even if I thought that the matter did not come under section 7(b)(3) I would find occasion in this context to exercise the general powers of the High Court of Justice under the first part of section 7(a), as this Court suggested in Rubinski v. Competent Officer etc. (5) regarding a decision of a District Court which was void ab initio.

 

            In the United States the dominant rule is that a judge can be compelled by mandamus or prohibition not to deal with a matter which he is disqualified to hear (45 A.L.R. 2nd, pp. 938 ff.) and this rule obtains even without express statutory provision (8 A.L.R. pp. 128, 1240).

           

            As will be recalled, it was said in Goldenberg (l) that the High Court of Justice has no power to deal with an application for transfer of proceedings from one judge to another. This view is based on the ground that another remedy exists in section 36 of the Courts Law. I have tried to show above that section 36 does not apply to such an application, and if I am correct, the ground of alternative remedy falls away. It should also be remembered that Weinberg (2) decided in 1950 that no order is to be made against a District Court judge to refrain from sitting in a particular matter because that court is not an inferior court. As I have explained, this decision is not to be followed after the enactment of the Courts Law.

           

            Since the decision of a judge not to disqualify himself is not the judicial decision of a court, no interlocutory appeal lies against it. Apart from that, this remedy creates unjustified discrimination between civil proceedings in which interlocutory appeals are possible and criminal proceedings in which they are not. What is the difference between an interlocutory and a final appeal, for we have already said that the question of the judge's disqualification can be raised in an appeal against his judgment? The answer is that at the end of the trial the submission is not that the judge was disqualified from the outset but that the judgment of the court is defective as a result of his disqualification.

 

            Consequently the correct way to plead disqualification of a judge about to sit is, in my opinion, to apply to the judge to disqualify himself, and if he is not prepared to do so, the remedy is an application to the High Court of Justice.

           

            Nevertheless I wish to observe that the Court will certainly attach great weight to the position taken by the judge concerned and will interfere only in an extreme case with his opinion that he may sit. The court will so act with regard to the facts of the case, as to which the judge is deemed to be trustworthy, as well as with regard to the conclusions stemming from them, since the presumption is that a judge has properly searched himself, remembering his declaration of allegiance "to dispense justice fairly, not to pervert the law and to show no favour". In order, however, to preserve the confidence of the public in its judges of all ranks the possibility of reviewing a judge's decision must not be yielded entirely. I have expressed my view about lex lata as I see it. Possibly, de lege ferenda a more convenient solution may be found, perhaps along the line of the President of the Supreme Court reviewing the judge's decision (without the necessity of the judge concerned giving his consent) or of laying down special procedural provisions for the hearing of petitions of this kind by the High Court of Justice.

           

            Finally, I wish to consider briefly two matters connected with the contents of the application before us, which relate to the substantive law on the disqualification of judges. I do so in order to save the parties from further litigation over the question. The application to his Honour Judge Kister contained six grounds. Among them the following observation occurs six times as a refrain: "Your Honour is known to have no predilection but many persons, not necessarily reasonable people, will draw the conclusion" etc. This very repetition gives the application a vexatious character. The phrase "not necessarily reasonable people" is taken from the judgment of Lord Esher in Eckersley v. Mersey Docks (20) (at p. 671). Later cases have criticized it not once as being too wide. If indeed the court were to take heed of the views of unreasonable people there would be no end to the matter. The criticism is collected in R. v. Camborne Justices (19) where the court preferred the formula of Blackburn J. in R. v. Rand (21) that the applicant must show "a real

possibility of bias", a test which this court adopted in Shimel (3) (at p. 462).

 

The sixth ground of applicant's counsel was as follows:

 

"Your Honour is known to have no predilection but it is also known that your Honour is a judge with orthodox religious views and must decide in this case whether in your opinion being educated in another religion is not detrimental to the children. Apparently many persons, not necessarily reasonable, would conclude that it is not proper for a Jewish orthodox judge to act in a matter involving the school of another religion and requiring him to decide whether being eucated in another religion might be detrimental to a Jewish child."

 

Any one reading these words literally cannot but understand that an attempt is being made here to disqualify a judge from sitting because of his personal outlook - in the instant case his orthodox religious outlook. Mr. Ben-Menashe made a great effort to persuade us that this was not the intention and finally waived this ground in its entirety. He would have done better had he not indited these tasteless words. I would have thought it unnecessary to explain that a judge may have his own personal outlook. Certainly he must guard against his beliefs and opinion about the condition of society under which he lives distorting his fidelity to the letter and spirit of the law. The judges of Israel are presumed to know how to fulfil this obligation of theirs. In no manner is room to be given to the notion that a litigant is only to be tried by a judge whose personal outlook meets with his approval. No legal system could operate on such terms.

 

            Among the five other grounds for disqualifying His Honour Judge Kister, Mr. Ben-Menashe mentions the judge's observations in an interlocutory decision, which according to counsel display preconceptions about the question the judge was to deal with. An interlocutory decision of 26 March 1963 refers to a submission by counsel for the children's parents, that the Attorney-General has no power to intervene with regard to the children's custody and therefore his application should be struck out. Counsel for the parents appeared only after the judge had already heard some of the witnesses. In the said decision the judge dealt at length with some of the general problems involved in the education of children in a religion not their parents' and with the operation of Christian missionary institutions in this country. In this regard he mentions also evidence previously given. The learned judge expressed inter alia a negative view on the free education given to children by missionary institutions. The judge treated as discreditable such material benefits to parents, and he also suggested - basing himself on the evidence of the welfare officer that the father had requested a sum of money for his consent to the children being withdrawn from the missionary institution- that the father might have received from that institution consideration in addition to being relieved of financial expenses. He also expressed his opinion that a religious community seeking to save the souls of members of another community must desist from all illegitimate means "such as deception and bribery and generally to avoid any suspicion of reprehensible activity". Of the father, the judge said that "if a person suggests bribery and is dazzled by it, he can slander all the education provided by the State".

 

            I do not think that all these remarks were necessary for the interlocutory decision on the submission in law of want of jurisdiction. I also doubt greatly whether there was even occasion in response to Mr. Ben-Menashe's concrete request for the observation that "indeed we perceive the corrupt source of the idea of disqualifying an orthodox Jewish judge in this country, the sullied well from which people who so desire draw their views". (What is meant here is Nazi thinking.) So general an observation, written it seems in an angry moment does not, however, give ground for any real fear that the learned judge would not know how to decide impartially between the parties in accordance with the law and the evidence adduced. As for the father "suggesting bribery", I understand that to refer to the benefit which the father obtained from the free education the children received in missionary institution. Although not happily phrased, these words are merely interpretative of what had been said in court down to that point. The judge observes a number of times in his decision that he was for the moment dealing with prima facie evidence and at p. 6 he says:

           

"After going into the question - of education in institutions where there are parents alive and of education in another religion and the influence on the child - in general and without making any finding of the facts in the present case at this stage so long as I have not heard all the evidence and the parties have not made their submissions regarding the circumstances of the case, I must turn to the legal aspect...."

 

These explicit remarks take the sting out of a number of the judge's observations and demonstrate that he approached the matter before him with the required caution and without preconceptions, as a judge should. There is accordingly no ground for Mr. Ben-Menashe's fear that his client will not enjoy a fair trial.

 

            In sum, the application before us was not properly made and for that reason must be dismissed. I would add that it also has no foundation on the merits.

           

WITKON J. With respect I agree to all that my honourable friend, Landau J., has said regarding the non-applicability of section 36 of the Courts Law, 1957, to a case such as the present but I disagree with his proposal to open the High Court of Justice to litigants who are dissatisfied with the refusal of a judge to disqualify himself.

 

            I do not dispute that the decision of a judge not to disqualify himself (and perhaps even his decision to disqualify himself) should properly be subject to review by another judicial body. Such review might well be left to a different court or to a different judge of the same court. What is important is that a judge should not be the final arbiter regarding his disqualification. But to bring the matter within section 7 of the Courts Law we must first determine that a judge's decision regarding his disqualification is an administrative and not a judicial decision. That is not free from doubt. The difference between a judicial and an administrative act is not firmly based and the boundary is a shifting one. In point of classification no absolute difference exists between an administrative act (when imposed on a judge) and a judicial act. We were exercised with this problem, inter alia, in Perah v. Attorney-General (7). There, a Magistrate decided that gold, in respect of which an offence was committed entailing expropriation, should be returned by the police to the true owner who was guiltless of the offence. The question was whether the decision made under section 388 of the Criminal Code Ordinance, 1936, was part of the sentence against which the Attorney-General might appeal or whether it was an administrative act in which only the High Court of Justice could intervene. The question was left open but I wish to say at once that there was no reason to have raised the problem had it not been clear that no appeal lies against a purely administrative decision.

 

            Deeper research was devoted by Berinson J. to the distinction between judicial and administrative acts in Kluger v. Inspector General of the Police (8). That case involved a search and seizure warrant issued in the course of criminal proceedings. The element common to this and the previous case is that in both the order affected a third person not party to the proceedings. Here the High Court of Justice intervened on the application of the third party. Berinson J. had the following to say about its power to do so:

           

"The question arises whether in issuing the search and seizure warrant the judge acted as a court or merely performed an administrative act even though it involved judicial discretion. It seems to me that basically the function was administrative, although not ... a function of executing a judgment like activating conditional imprisonment for instance. Here the judge is not activating another's decision but is deciding in his discretion and on the basis of prima facie evidence adduced to him that the statutory conditions for issuing a search and seizure warrant have been fulfilled. For all that, the issue of such a warrant is unlike a pure judicial act of a court. It can be issued before trial and even before any one is charged and there is no procedure for joining persons concerned in the matter or liable to be prejudiced by the warrant in the proceedings before the judge. Such a warrant may affect the interests of a bystander not directly connected with the matter itself in respect of which the search warrant is claimed and issued. Even when it is issued in the course and for the purpose of a criminal trial, it is still not an integral part of the trial but a side issue secondary thereto. A person prejudiced by it has no way to test its lawfulness or correctness in any court other than this Court which is thus competent to deal with the matter under section 7(a) of the Courts Law, 1957. The present case is closely, if not entirely, similar to Gilah v. Jerusalem Magistrate (9). Here as there the sitting judge held that the matter was within his competence whilst hearing another trial. Here as there the judge's decision was not open to appeal or other judicial review. Here as there the person who felt himself aggrieved by the decision was not a party to the trial within which it was given. Accordingly, here as there the applicants can ask for relief from this Court in pursuance of section 7(a) of the Courts Law" (at p. 1271).

 

In that case application was made for a Further Hearing - Societe des Ateliers etc. v. Kluger (10). Cohn J. summed up the law as follows:

 

"Within the framework of the relief mentioned in paragraph (3) of section 7(b) of the Courts Law, 1957, the High Court of Justice will not take cognizance of judicial decisions of District Courts or Magistrate's Courts, whether or not appeal against them is possible. It is otherwise within the framework of the relief mentioned in paragraph (1) or (2) of section 7(b) or within the wider framework of the relief under section 7(a). When performing an administrative act, a judge is also a state organ and in doing so exercises a lawful function. The rule that the High Court of Justice is competent to interfere with administrative acts even if done by a judge is nothing novel" (at p. 1540).

 

            There is no doubt that in the course of his ordinary work the judge makes decisions having an administrative character, the remedy against them lying with the High Court of Justice. But, as I have already said, a decision may frequently be of a mixed nature with features of both kinds. It can then be said that if the person aggrieved has a clear right of appeal, the indication is that the judicial aspect is decisive. On the other hand, lack of a right of appeal opens the path to the High Court of Justice for the aggrieved person. And where a right of appeal is available against a decision which as such and in what it involves is an administrative decision, the matter can only be resolved by converting the decision into a judicial one. Thus no clear distinction exists between the two.

           

            A judge's decision not to disqualify himself may, no one disputes, be challenged by the aggrieved person by appeal against the decision of the judge on its merits. I am alive to the fact (pointed out by my friend, Landau J.) that disqualification is only incidental to such an appeal and not in itself the subject of appeal. Nonetheless, in my opinion, it is sufficient that a judge's decision not to disqualify himself can be tested in the course of the appeal, even if only in this manner. The decision thus assumes the form of a judicial decision, and once again cannot be contested in the High Court of Justice. Obviously, I can also reach the same conclusion under the express rule in section 7(a) of the Courts Law that the High Court of Justice will not intervene in matters which are within the jurisdiction of any other court. I think that the existence of another remedy in the present case closes the path to the High Court of Justice completely.

 

            The rule is that the High Court of Justice does not order prohibition where the aggrieved person has a right of appeal against the decision likely to affect him. In my opinion, it is immaterial to the application of this rule whether the order is sought simply against a court or a particular judge of a court. As far as I know, prohibition has never issued in this country simply against a court when a right of appeal exists. An attempt at that in Kvutzat HaHugim Bet HaShitah v. Haifa Committee etc. (11) was unsuccessful. Although the Court did not utterly deny the "co­existence" of prohibition and appeal, it should be remembered (a) that a special tribunal was involved in that case, (b) that appeal against the tribunal's decision went only to the District Court and (c) that the Court considered the possibility of ordering prohibition in cases only of manifest want of jurisdiction. (See the precedents cited at pp. 125-28.) It is in this spirit - delimiting the ambit of the applicability of prohibition - that I understand the remarks of Agranat J. in Rubinski (5).

           

            Another attempt to obtain a High Court order against a District Court this time by mandamus requested by a third party in an "administrative" matter - failed in Israel Film Studios Ltd. v. Jerusalem District Court (12). Moreover in Kravchik v. Attorney-General (13) the High Court of Justice dismissed an application for an order against the Attorney-General to discontinue a criminal action (on the ground of autrefois acquit) on the ground that the applicant first had to address himself to the Attorney-General. Although the Court pointed out that because of that its intervention was premature, in a later case, Mahviti v. Attorney-General (14), it refused to intervene in a trial pending in the Magistrate's Court. The question whether prohibition can issue against the President of the Supreme Court was left open in Dvik v. President of the Supreme Court (15). Finally, I should mention Attorney-General v. Beersheba Traffic Judge (16) where the High Court of Justice made an order against a Traffic Judge to refrain from continuing to hear a case after the Attorney-General had ordered a stay; this case is different from the one before us since after a stay order the competence of a magistrate ceases entirely.

 

            Should it be urged that appeal is not a sufficiently effective remedy and therefore the matter merits the attention of the High Court of Justice, I would answer by way of preliminary that cases may occur where a party raises the question of the court's composition even before it has been determined by its President under sections 4(b) or 16(b) or by the Chief Magistrate under section 26 of the Courts Law: and it appears to me that the determination is an administrative act which the aggrieved party might well ask the High Court of Justice to review. After commencement of trial, however, a party unsuccessfully seeking the disqualification of a judge can only seek his remedy on appeal. I would say that on a balance of the instances and convenience that this is more effective and seemly than application to the High Court of Justice, even if in the meantime the party must bear with the judgment and wait for his remedy until the appeal reaches its turn. In practice, however, I see no reason for preventing an interim appeal (after leave) against a judge's decision not to disqualify himself. It is very true that this possibility exists only in civil cases as distinct from criminal. But this difference between the two kinds of trial obtains in any event and the discrimination affects every accused person raising a preliminary issue regarding the charge sheet or the jurisdiction of the court, since he cannot appeal against the decision of the court which dismisses his plea and must stand perhaps lengthy trial with all the distress and hardship that entails.

           

            Perhaps the most important consideration against transferring this jurisdiction to the High Court of Justice is that it is not at all a convenient forum for going into the problem. In this Court the judge becomes the respondent and if the petitioner has levelled against him an empty charge, is it not unbecoming for the judge to enter an affidavit in reply on which he may be examined? And what will happen if the other party concerned is not ready to support the judge's decision not to disqualify himself? Such problems and the like do not arise when the remedy is by way of appeal for then the judge has the opportunity to explain in his decision the position he has taken and the party may contest it and even contradict it by affidavit but cannot compel the judge to debate it with him. I therefore believe that to open the High Court of Justice to a party dissatisfied with a judge's decision not to disqualify himself is not only unnecessary for justice to be done but is also inconvenient and undesirable.

 

            Like my friend Landau J., I also wish to add a few observations on the merits of the case. I join in the view that there was no room for Judge Kister to disqualify himself from sitting in the case or even to ask him to disqualify himself. And I also find that the very request was in bad taste. Nevertheless I would like to explain why I think that the honourable judge was not disqualified. He himself reacted to the applicants' request in an exaggerated fashion and among his reasons for not disqualifying himself there were some that were irrelevant. Nobody argued that a Jewish judge, even an orthodox Jew, is incapable of dealing without preconceptions with matters affecting members of another religion. The argument was confined to the concrete case before the judge of a Jewish child whose parents had sent her to a Christian missionary school. In such a case, the applicants urged, an orthodox Jew has firm views of a wholly negative nature. Is that a reason for disqualifying an orthodox Jewish judge?

           

            In my opinion, it is not. The question whether the State should rightly and properly interfere with the decisions of parents to send their children to mission schools is debatable. On the one hand one need not be an orthodox Jew to regard such action with profound concern. Educationally it is certainly undersirable to create conflict in the minds of very young children and bring them up in a manner which ultimately will erect a barrier between them and the large public among whom they will be living. On the other hand one recoils from any interference in the freedom of parents to educate their children as they think fit; equally one must be careful not to prejudice freedom of religion and to avoid excessive interference by the state in the free competition of opinions and views in the religious and other spiritual fields. It is precisely the Jewish people largely living in the Diaspora which is sensitive to such interference. For the purpose of the present application we do not have to decide which of these two considerations (and perhaps others of the same kind) we should prefer. That is the task of the judge dealing with the case on its merits. Here we are only concerned with the question whether the judge is disqualified. To this end we must emphasise with the utmost clarity that a judge - be his personal outlook what it may - is presumed to know how to give all important considerations their full weight and importance. Such moderation is a characteristic of a judge qua judge. Hence it is wrong and truly prejudicial to the judiciary itself to request a judge to disqualify himself because of his "religious" or "non-religious" views (to use these unhappy terms) or because of his views in other areas. I am sorry that the present applicants could not understand that.

 

BERINSON J. I concur in the judgment of Witkon J. and have nothing to add.

 

AGRANAT D.P. I agree with the conclusions of my honourable friend, Landau J., that section 36 of the Courts Law does not bear the meaning that it is designed to accord a remedy to a party claiming the disqualification of a judge but only prescribes the manner of transferring a matter from one court to another in point of locality. Such conclusion is sufficient to defeat the application before us, but I must add that I also join in the view of my friend, denying the very argument of disqualification raised by applicants' counsel.

 

            On the important basic question over which my friends, Landau J. and Witkon J., are divided - whether the High Court of Justice should be open to a person who quarrels with a judge's decision regarding his personal disqualification to deal with a case - I side with Witkon J., that it is impossible to grant such person the relief provided for in section 7(b)(3) of the Courts Law. My reason for that is that such a decision - and here with all respect I disagree with the view of Landau J. - is of the kind that goes to the Court's jurisdiction to hear and decide a matter, civil or criminal, before it. I shall explain myself.

           

            "Jurisdiction" means the power of a tribunal to conduct a judicial hearing and to decide a matter pending before it; if conditions are set for the exercise of this power, then every decision as to whether these conditions have been met is a decision concerning the tribunal's jurisdiction to try the matter. In this regard, it is clear to me, there is no place for distinguishing between conditions precedent that affect the material and local jurisdiction of the tribunal asked to try a particular matter and conditions that affect the qualifications of the judge about to do so. If the judge concedes the argument of his disqualification, the decision means that the tribunal in the given composition is not competent to hear and decide the matter. If the argument is rejected, itmeans that the tribunal in the given composition is fully competent. Support for this view may be found in the observations of the Privy Council in Colonial Bank of Australasia v. Willan (22) at pp. 442-42:

 

"It is necessary to have a clear apprehension of what is meant by the term 'want of jurisdiction'. There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry... Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which ... are extrinsic to the adjudication impeached."

 

And at pp. 443-44:

 

            "In Reg. v. Cheltenham (23) ... the objection was that the Court which passed the order was improperly constituted, inasmuch as three of the magistrates who were interested took part in the decision. And Reg. v. Recorder (24) proceeds on the same ground... In cases which fall within the principles of the last-mentioned decisions the question is, whether the inferior Court had jurisdiction to enter upon the inquiry, and not whether there has been miscarriage in the course of the inquiry."

           

See to the same effect de Smith, Principles and Scope of Judicial Review, p. 67; Street and Griffith, Principles of Administrative Law (1952) p. 205; and D.M. Gordon in (1931) 47 L.Q.R. 407: "Jurisdiction must be complete before a tribunal can make any move at all... . It is simply a right to take cognizance."

 

            It follows that I am wholly at one with my friend when he says that a judge who rejects a plea that he is disqualified to try a matter "is (merely) expressing an opinion on the preliminary question of his personal qualification to sit in judgment" and therefore "no question arises here of the jurisdiction of the court as such." In my judgment when a judge dismisses such a plea it means that the court in its given composition is competent to deal with the case in hand just as in the reverse it is not. The legal position will not change if the judge against whom the plea of disqualification is directed is sitting in the company of other judges. I would agree with my friend that in this last event the responsibility of deciding on the plea of disqualification rests on the judge alone who is concerned and the others cannot participate therein or force upon him their view of the plea (see the remarks to this effect of Justice Jackson with regard to the practice in the Supreme Court of the U.S., with which Justice Frankfurter agreed, in Jewel Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America (25)). But the decision of the judge to dismiss the plea will bind the entire court and by virtue thereof it will in its given constitution hold the trial; in the same way his decision to withdraw from the case will bind the entire court and it will be unable to sit until it is properly constituted in accordance with the law. In both instances the decision is determinative of the question about jurisdiction to hear and decide the particular matter. Moreover, if appeal is lodged against judgment as a result of one of the judges deciding to dismiss the plea of disqualification against him and the plea is accepted on appeal, the judgment will be set aside because it was given by a court not having jurisdiction by reason of its defective consititution.

 

            It follows from the foregoing that in view of the proviso in section 7(b)(3) - "other than courts dealt with by this Law" - the High Court of Justice cannot possibly intervene with a decision concerning the qualification of a judge to deal with a particular matter in reliance on the first part of the paragraph.

           

            Can the High Court of Justice interfere with such a decision in reliance on section 7(a) of the Law? A condition precedent to such interference is that the matter in which relief is sought does not lie in the jurisdiction of any other court or tribunal. Hence our general approach must be not to open the doors of the High Court of Justice to any one contesting a decision dismissing a plea of disqualification. In contemplation of the view that a plea of this kind is akin to a plea going to a court's jurisdiction to hear and decide a matter before it, the decision may be upset by appeal against the judgment given at the end of the trial. Furthermore, in a civil case, there is the remedy of asking for leave to appeal against the decision forthwith upon its being given, just as it is available against a decision rejecting a plea regarding want of jurisdiction as to subject matter or place. It can therefore be said that in civil matters the necessity will in general not arise of applying to the High Court of Justice, for no one disputes that the remedy of appeal against an interlocutory decision is speedy and effective.

 

            The remedy last-mentioned does not exist in criminal proceedings and I was therefore exercised by the question whether in respect of such proceedings an appeal against judgment should not be treated as an effective means for the accused who protests against rejection of a plea of disqualification he has raised. This plea is different from a plea of want of jurisdiction in that it concerns the judge personally and thus protest against its rejection should be better reviewed immediately by another judicial body totally unconnected with the plea, a course which would help to "clear the air" at the very outset of the criminal proceedings and strengthen the accused's and the public's feeling that the plea has been objectively treated in a manner befitting it. I am, however, of the opinion that this is the ideal situation and so long as the legislature has not prescribed such special procedure we must act on the presumption that it is satisfied with the remedy of appealing against the outcome of the criminal trial, just as it is satisfied with the same remedy with regard to other pleas of want of jurisdiction in criminal matters, in view of the policy of the legislature to avoid interlocutory appeals in such matters. That was the view of the Federal Court of Appeals in Korer v. Hoffman (26) where it refused an application for mandamus against a judge who refused to disqualify himself in a criminal trial before him.

           

"Counsel for petitioner urges that denial of the writ means that petitioner will be forced to continue under the stigma, stress and strain of an indictment, and subject to restriction under bail, until a later day when his case may be reached and tried. Meanwhile, he must pay heavily in time, effort and expense to prepare his case for trial and suffer the ignominies of a trial. This is an appealing argument to which I know of no good answer other than that it is made in the wrong forum."

 

To emphasize all this the court mentioned the following precedents:

 

            "In response to a similar contention, the Court in Gulf Research and Development Co. v. Leahy...(27] stated: 'The mere fact that the petitioners will be put to the inconvenience and expense of what may prove to be a wholly abortive trial is an argument which might be addressed to Congress in support of legislation authorizing interlocutory appeals but does not constitute ground for invoking mandamous power'... . In Roche v. Evaporated Milk Ass. (28) ... the Court stated: 'Where the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases.' "

 

            Although this approach in general should also guide us in matters of the last kind, I must add that I do not exclude the possibility that in rare and exceptional circumstances - as where strong evidence is produced regarding the material interest of a judge in the outcome of a trial - the High Court of Justice will interfere at an early stage so as to grant relief against a decision rejecting a disqualification plea. (See the remarks of the court in Minnesota and Ontario Paper Co. v. Molyneaux (29) and the judgment in Lalo v. Sussman (17).)

           

            Such are my observations on the broad problem dealt with by my two friends, a problem which, as I have indicated, calls for legislative amendment as soon as may be. As regards the application before us I am of the opinion that it should be rejected.

           

COHN J. I am also at one with the view of my honourable friend, Landau J., that section 36 of the Courts Law does not apply to a transfer from one judge to another, as distinct from one court to another. For this reason alone the present application must be dismissed. I myself see no need to enter into the question of the right path a litigant should pursue when he wishes to disqualify a judge in a particular case. It seems to me that the matter is for the legislature to decide, and perhaps one may regret that it missed the opportunity to do so when dealing with the bill of the Courts Law.

 

            Since, however, my learned friends also saw fit to address themselves to the question of what is the proper procedure for disqualifying a judge, I will only say that my view is like that of Witkon J. and Agranat D.P. and for the reasons they have given, that the High Court of Justice is generally not competent in such matters.

 

 

            Application dismissed.

            Judgment given on June 30, 1964.