Crim.A. 118/53

ZALMAN MANDELBROT

 v.

THE ATTORNEY-GENERAL

 

In the Supreme Court sitting as a Court of Criminal Appeal

[February 24, 1956]

Before Agranat J., Silberg J., and Goitein J.

 

Criminal Law - Criminal Code Ordinance, 1936, sections 11, 14, 214(b), 216 (c), - Murder - M'Naghten Rules - Paranoiac - State of trance - Manslaughter.

 

                The appellant was charged under section 214(b) of the Criminal Code Ordinance, 1936, with the murder of one Meir Shifman. He was employed at the Ata textile works in the north of Israel in the year 1951. On December 26, 1951, he went to work taking a loaded revolver with him. At 9.30 a.m. he went towards a fellow employee, with whom he had at one time been friendly, one Luba Kreiner, and fired two shots at her which struck her in the right arm. She tried to run away from the appellant, but tripped up and fell. Shifman, a member of the workers' committee, seeing what had happened threw himself face down on the floor of the works but the appellant came up to him, fired two shots into his head, and killed him. After firing these two shots, he reloaded his revolver, fired further shots at Kreiner and at other persons and then left the place where he had been working.

           

            The appellant was arrested on the following day and charged with the murder of Shifman and with the attempted murder of Kreiner and another. After the charge had been read to him and he had been warned that he need not say anything but what he did say might be used at his trial, he admitted that he was the man who had done the acts that had occurred at the Ata works, one day previously.

           

            At the trial his defence was that he was not of sound mind when he fired the shots at Shifman and he relied upon the M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance, 1936.

               

            The appellant was examined by a number of medical experts who came to the conclusion that he was a paranoiac, that he knew what he was doing and knew that what he was doing was wrong, but after he had fired the first shots he was in a state of trance and that at the moment when he fired at Shifman and thereafter he acted in a trance.

           

            The District Court held that the defence set up under the M'Naghten Rules must, in the light of the medical expert evidence, fail and was further of the opinion, in the light of the statements made by the appellant the day following the killing, that he was not in a state of trance at the time he fired at Shifman. As, however, the element of preparation had not been established he was convicted of manslaughter and sentenced to life imprisonment.

 

                The appellant appealed against the conviction and sentence. The Attorney-General cross-appealed.

               

                Held: by a majority that the appeal be allowed and that the cross-appeal be dismissed.

               

                Per Agranat J., the M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance did not provide a defence in the present case but that section 14 did not exhaust the rights of a paranoiac. Such a person may also rely on section 11 of the Ordinance which lays down that a person shall not be criminally liable for any act or omission which occurred without the exercise of his will. As in the present case the appellant was not capable of exercising any will, he had a good defence to the charge of murder.

               

                Per Silberg J., the court below was wrong in refusing to accept the unanimous and uncontradicted evidence of all the medical experts that at the time of the shooting at and killing of Shifman, the appellant was in a state of trance. The court of first instance was not entitled to refuse to accept this evidence merely on its own belief that certain actions of the appellant at the time of the shooting, of which the experts were aware, seemed to negative their conclusion. Accordingly, as the only evidence before the court was that the appellant was in a state of trance at the time when he fired the fatal shots at Shifman, it could not be said that he knew what he was doing or knew that what he was doing was wrong. The M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance therefore applied, and the appellant had a good defence to the charge of murder.

               

                Per Goitein J., on the medical evidence the M'Naghten Rules did not apply and the court below was entitled to rely upon the statements made one day after the killing by the appellant himself, from which it might be inferred, and the court of first instance was entitled to infer, that the appellant was not in a state of trance when he fired the shots which killed Shifman. It was not for the appellate court to find facts different from those found by the court of first instance when the findings of the judges of that court were based on an appreciation of the evidence. Accordingly the appellant knew what he was doing at the time he fired the shots and knew that it was wrong to fire them. As, at the time, he was not in a state of trance, section 14 of the Criminal Code Ordinance offered him no defence and since, however, the element of preparation had not been proved, the court below was right in finding him guilty of manslaughter.

           

Palestine case referred to: -

 

(1)        Cr. A. 6/42 - Asa'ad Ibn Haj Said el Khalil v. Attorney-General, (1942) 2 S.C.J. 88.

 

Israel cases referred to: -

 

(2)        Cr. A. 125/50 - David Ya'acobovitz v. Attorney-General, (1952), 6 P.D. 514.

(3)        C.A. 150/50 - Aryeh Kaufman v. Binyamin Margines, (1952), 6 P.D. 1005.

(4)        Cr. A. 46/54 - Attorney-General v. Segal, (1955), 9 P.D. 393.

 

English cases referred to: -

 

(5)        Sodeman v. R., (1936) 2 All E.R. 1138.

(6)        R. v. James Jefferson, (1908), 1 Cr. App. R. 95.

(7)        R. v. Ronald True, (1921-22), 16 Cr. App. R. 164; (1922) 127 L.T. 561.

(8)        R. v. James Frank Rivett, (1949-50), 34 Cr. App. R. 87.

(9)        Daniel M'Naghten's Case, (1843), 8 E.R. 718.

(10)      R. v. Georges Codere, (1916-17), 12 Cr. App. R. 21.

(11)      Hadfield, (1800), 27 St. Tr. 1281.

(12)      Reg. v. Edward Oxford, (1840), 173 E.R. 941.

(13)      R. v. Hay, (1911), 22 Cox C.C. 268.

(14)      R. v. Fryer, (1915), 24 Cox C.C. 403.

(15)      R. v. Frederick Rothwell Holt, (1920-21), 15 Cr. App. R. 10.

(16)      R. v. Joseph Edward Flavell, (1925-26), 19 Cr. App. R. 141.

(17)      R. v. Alfred Arthur Kopsch, (1925-26), 19 Cr. App. R. 50.

(18)      R. v. Davis, (1881), 14 Cox C.C. 563.

(19)      R. v. Haynes, (1859), 175 E.R. 898.

(20)      Felstead v. R., (1914) A.C. 534.

(21)      Reg. v. Pitts, (1842) 174 E.R. 509.

(22)      Reniger v. Fogossa (1550) 1 Plowd. 1.

(23)      Reg. v. Charlson, (1955) 1 All E.R. 859.

(24)      R. v. Arnold, (1724) 16 St. Tr. 695.

(25)      R. v. Bellingham, (1812), 1 Collinson on Lunatics, 636.

(26       )R. v. Charles Aughet, (1917-18), 13 Cr. App. R. 101.

(27)      R. v. Frederick Henry Thomas, (1911-12), 7 Cr. App. R. 36.

 

American cases referred to: -

 

28. Parsons v. State, (1886) 81 Ala. 577; cited in 70 A.L.R. 663.
29. Smith v. United States, (1929) 36 F. 2d. 548.

(30) State v. Nixon, (1884) 32 Kan. 205; 4 Pac. 159; 5 Am. Crim. Rep. 307; cited in 70 A.L.R. 677.

(31) Monte W. Durham v. United States of America, (1954) United States Court of Appeals for the District of Columbia Circuit, No. 11859, 16.

 

 Levitsky for the appellant.

Rabinowitz, District Attorney, Haifa, for the respondent.

 

AGRANAT J: Zalman Mandelbrot (hereinafter called "the appellant") was charged in the Haifa District Court with murder under section 214(b) of the Criminal Code Ordinance, 1936, in that on December 26, 1951, at the Ata factory in Ata Village, with premeditation, he caused the death of Meir Shifman. The appellant's defence at the trial was based mainly on a plea of insanity. The learned judges who tried the case rejected the plea, but on the other hand decided to convict the appellant of manslaughter only, under s. 212, after finding that the element of "preparation" had not been proved. In the event, they sentenced him to life imprisonment. Both the appellant and the Attorney-General (hereinafter called "the respondent") have appealed against the judgment.

 

            At the hearings that took place before us the appellant's arguments revolved first and foremost around the finding of the judges of first instance that the plea of insanity had not been proved. I think it right to deal first with that part of the appeal, seeing that if I find that the appellant ought not to be held liable from the point of view of criminal law by reason of the mental disease from which he was suffering at the time of the act, I shall not have to deal with his other submission concerning the severity of the sentence, nor with the respondent's appeal against the appellant's conviction of manslaughter only, and not of murder.

           

            There being no dispute that the appellant committed the act of homicide which is the subject of the charge I shall, for the purpose of describing the circumstances surrounding that act, content myself with quoting the following passage from the judgment of the District Court:

           

"The accused and the deceased were both employed as workers in the spool department of the Ata factory at Kfar Ata. A girl by the name of Luba Kreiner also worked in that department. The department is housed in the large hall measuring 30 by 30 meters, and in the hall are machines for winding the thread on the reels and other machines, in two groups separated by an aisle. The main entrance to the hall is from the south side and along the south wall are a number of tables at which workers are engaged in marking the reels of thread that have been wound in the department, and in packing them in cases. Another aisle separates these tables, from the group of machines on the south side of the hall, and in the aisle the cases, into which the finished reels of thread are packed, usually stand. The incident took place on December 26, 1951, during the morning shift which commences at 5.30 a.m. According to the ordinary work arrangement the deceased Shifman did not have to work in that shift, but on the previous day he had agreed with another workman by the name of Mizrachi to change over with him, at the latter's request. The deceased worked at one of the tables on the south side of the hall, and at the time of the incident was engaged in closing a case and was holding a hammer in his hand. Two other workmen, prosecution witnesses Besser and Appelstein, were working next to him. It was their task to collect the finished reels from the spooling machines and to arrange them inside the cases. Besser was working at some distance from the deceased on the east side, and Appelstein at a distance of several meters from the deceased on the west side. The length of each of the spooling machines in the hall is approximately ten meters, and at each machine there work four female hands, two on each side, each one attending to half the length of the machine. Luba Kreiner worked that morning next to the spooling machine which was then known as machine no. 6, …facing the machine and the east wall of the hall. Her section was the left-hand (northern) side of that machine. The accused was working that morning in transporting cases containing the unwound thread reels to the spooling machine, and in transporting the finished reels from the machines to the south side of the hall, where they were packed. At approximately 9.30 a.m., he went up to Luba Kreiner, who was standing by her spooling machine, and from a "Tuppee" revolver fired two shots which hit her right arm. At the sound of these shots panic broke out in the factory, and male and female workers began running in every direction. Luba Kreiner herself tried to get away to the south side along machine number 6, but next to the aisle where the cases were it appears that she tripped over some boards that were lying on the floor and fell down. The accused went or ran after her up to that spot. The deceased Shifman, whose place of work next to the cases was only a few meters, diagonally, from the place where Luba Kreiner fell, threw himself flat on the floor, face down. The accused approached him with the revolver drawn in his hand and from a short distance of about half a meter, fired two shots into the deceased's head. The bullets penetrated the skull at two places close to each other, and the deceased died on the spot from a cerebral haemmorrhage. After shooting Shifman, the accused withdrew several paces backwards and reloaded his revolver. In the meantime, Luba Kreiner had managed to rise and was continuing to make good her escape by retracing her steps along machine number 6 until she reached the wide aisle between the two groups of machines, and from there she turned left (westwards). The accused continued to chase after her, and while so doing hit her in the back with four more shots. From those shots she at length fell in the wide aisle, and the accused stood close to her and once more loaded his revolver. At the same time Dr. Otto Weinrib, the department manager, appeared opposite the accused. When the accused saw Dr. Weinrib, he fired one shot at him which hit Weinrib's leg. Thereafter, the accused left the hall and continued to walk at an ordinary pace along the internal road of the works to the west side. On his way, he encountered a worker by the name of Zalts, who works in the stitching department, and he turned to him with the question: 'Zalman, what's happened?' Instead of answering him, the accused turned to Zalts and fired one shot at him which missed its mark; he continued walking along the road and entered the offices that are in a hut at the side of that road, opened the doors of the hut as if he were looking for somebody, but did not find what he was looking for, went back once more, continued on his way along the road and disappeared on the west side."

 

            The facts found by the court in connection with the manner of the appellant's arrest after the incident and his being brought to the police station are also of importance, because of the contents of the statements that he then made to the police. These are the judges' findings in that connection:

           

            "The police began to search for the accused, but he was not found until the next day, December 27, at 12.30 p.m., when he entered the offices of the Kiryat Binyamin quarter, which borders on Kfar Ata. The offices are in the water-tower of Kiryat Binyamin. The accused announced to those sitting in the office that he was the one that had committed the deed in the Ata factory. Mr. Nehemia Rosenberg, an official of the Kiryat Binyamin Committee, got in touch with the police, and a patrol-squad of policemen appeared under the command of Sergeant Patievsky, who charged the accused with the murder of the deceased Shifman and with attempting to murder Luba Kreiner and Dr. Weinrib. The accused briefly replied to the charge: 'I intended to kill Luba and Shifman, but not Otto Weinrib' (see exhibit P/3). He was brought to the police station at Shfar'am and was there charged a second time on the same day, at 4. p.m., by Assistant District Inspector Movshovits. and made a further statement".

           

The contents of that statement ought to be quoted in full: -

 

            "I understand the charge and the warning and I want to say that what led me to this affair is that the late Mr. Shifman ever since I have worked in that department, was all the time making trouble for me, like when I asked for a rise and he said I was not entitled to it. Two months ago they took me off to paint in the housing estate and they promised to take me back to my department where I had been working. I applied to the late Shifman and he answered me that that is impossible. So I argued if my department is working three days a week and for the other three days they are getting fifty per cent, so I am also entitled just like the other workers. After that, things turned out that for a week and a half I wandered around without work. Now, for the business of Luba. I have been working in that department for about two years, that girl started what you might call 'making up to me', and all the time I put her off. And after that I was in the army and I invited her to a date in Kiryat Motskin and after that we used to meet almost every evening and once I also invited her to my home and she came. And slowly I got what you call mixed up with her. During the time that I went out to the estate to the painting job, we lost touch with one another. Once I turned up at her place of work, and I asked her once more for a date. She did not want to. A couple of days later I turned up once again and she also refused. Once I waited for her at two o'clock when she returned from work and I said to her if she would not meet me then I would do for her and myself together. She agreed to meet me and I had my revolver with me. She begged me not to kill her and for my part I did not have any intention at all of killing her, only of threatening her. And she agreed to meet me a second time. Two months later, when I came back from the estate, I went back to our department, that is to say my department, the spooling department. That business started again, me asking her to have pity on me and to meet me a second time because I was already what you call not all right, at home I had no rest, I did not sleep nights. My wife shouted at me that I was useless, whatever I do is no good, and I was already under the influence of Luba's love, and once more I turned to her to have pity on me and on herself and once more she refused and laughed at me. On the 26th in the morning, I took the revolver with me to work and I decided to do what I did. As far as Dr. Weinrib is concerned, I had no intentions. It seems I was a little sort of what you call sort of foggy and all mixed up at the time I fired, then he went by and I had no intention of hitting him at all. About the tall chap who I think works in the stitchery it is also not right like it looked as if I wanted to plug him with a bullet, fact is that there is in our department a chap by the name of Besser who I like just as I liked the late Shifman and he stood in front of me and I did not do anything to him either. That is all."

 

            The main defence at the trial was that the effect upon the appellant of his attack upon Luba Kreiner was to be taken into account in addition to the mental disease from which he was suffering prior to the commission of the criminal acts mentioned. The consequence of both these factors was that he was no longer conscious of what he was doing, or his mind became blurred immediately after he had fired at the woman, so that when he aimed his revolver at the victim Shifman and pressed the trigger, he was in fact acting as an automaton. This version of the facts was supported by the evidence of the appellant himself in court, in which he testified (and once more, we may rely on the judges' summary of his evidence) that, after the first shot at Luba Kreiner, he became completely confused by the shouts that broke out all around him and by the noise of the machines, so that he does not at all remember what he did and what happened to him from that moment until the evening of the same day, at nightfall, when he awoke and found himself on the water-tower at Kiryat Binyamin. Of what happened before he has but a very vague picture in his memory, in which he sees himself standing in front of the water-tower. The appellant went on to describe in his evidence the various attempts that he made at that stage to commit suicide until eventually he lost his nerve and decided to surrender to the police.

 

            The version of the defence is supported principally by the expert opinion of each of the three doctors who gave evidence in the case. The first of them is Dr. Vinik, Superintendent of the Mental Hospital of the Kupat Holim 1⁾ in Talbieh, Jerusalem, who appeared in the case as a witness for the defence. At the close of all the evidence the court decided, on the suggestion of counsel for the parties, to adjourn the trial in order to enable the appellant to undergo a further examination by two other doctors: Dr. Mengel, Superintendent of the Government Mental Hospital at Bat-Yam, and Dr. Feldman, Deputy Director of the Mental Hygiene Department of the Ministry of Health. After these examinations had taken place, the opinions of the latter two doctors were produced to the court, and the doctors were also examined in court on the contents of their reports. In their judgment, the judges noted that, from the formal point of view, Dr. Mengel appeared as an additional witness for the prosecution, whilst Dr. Feldman was summoned to give evidence as a witness called by the court.

 

            The unanimous opinion of all those doctors was that, at the time of the attack on Luba Kreiner, the appellant had been suffering from the disease of paranoia in a very advanced stage, and that immediately after he had fired at her the first or second shot, he had entered into a state of "trance" such that when he fired at the deceased Shifman, he was acting subconsciously, as stated.

 

            The learned judges accepted the first part of that opinion, namely, the part touching upon the nature of the disease of the mind from which the accused was suffering at the time he carried out the attack on Luba Kreiner, but they were not convinced that, after he had shot her, there was suddenly added to this disease the mental situation of a state of "trance". Counsel for the appellant argued before us that the judges erred in rejecting this latter version.

           

            According to the law of Israel (section 13 of the Criminal Code Ordinance. 1936) every man is presumed, until the contrary is proved, to be of sound mind at all times relevant to the matter in question. It follows that the burden of proof lies on the accused if he pleads that at the time of the criminal act with which he is charged, he was suffering from such disease of the mind that he ought not to be regarded as liable for that act. However, the burden of proof lying on him is no heavier than that imposed on a party in a civil case; in other words, he is not bound to prove more than that his version is the likely one (Sodeman v. R. (5); Khalil v. Attorney-General (1), at p. 33).

           

            In their judgment, the judges emphasized that they had considered those principles and had acted in accordance with them, and that nevertheless they had come to their conclusion in spite of the consensus of opinion prevailing among the expert witnesses. From a theoretical point of view there is indeed nothing in the law to prevent the court from arriving at such a result. In every criminal case in which the accused relies on a plea of insanity, two questions fall to be considered: -

           

(a) Was the accused at the time of the act suffering from a disease of the mind, and what was that disease ?

 

(b) Is it right to absolve him from criminal responsibility in consequence of his suffering from the mental disease at the time of the act ?

 

            The determination of each of those two questions is within the sole jurisdiction of the judges hearing the case (I am not dealing here with the power of the court of appeal to interfere with the findings of those judges). It is true that whenever the opinions of the expert doctors who have given evidence are identical as regards the factual questions concerning the defence of insanity, such as whether the accused was suffering from a mental disease, the kind of disease, whether he knew the nature of the act and that the act is prohibited, the court will be disposed to hold, generally speaking, in accordance with those opinions (see Khalil's case (l), and the case of R. v. Jefferson (6)). But there is no compulsion to do (see R. v. True (7), in which the jury brought in a verdict against the opinion of the four expert doctors who testified as to the nature of the mental disease from which the accused was suffering, and whose evidence was not contradicted). For example, if the court is convinced that the doctors have given their opinion on the basis of a mistaken appreciation of the facts surrounding the accused's act, or have disregarded certain factual details relevant to the case in question, it may be right in such cases not to take their opinion into account (see the observations of Goddard L.C.J., in R. v. Rivett (8)).

 

            Again I must emphasize that the fact of the accused's labouring under a grave mental defect at the time when the event, the subject of the charge, took place, so that "from the medical point of view" he is not to be regarded as responsible for his actions, does not always constitute a sufficient answer to the further question that the court must put to itself, namely, whether, by reason of that defect, one of the criteria laid down by law exempts the accused from punishment. This particular approach of the local law which is, in this respect, identical with that of the English law, is aptly demonstrated in the extreme language once used by McCardie J. in his charge to the jury in the above mentioned case of True (7):

           

            "Insanity from the medical point of view is one thing; insanity from the point of view of the criminal law is something different. Doctors exist for the purpose of healing physical and mental ills. Judges... exist for the purpose of protecting the life, property and peace of the community."

           

            This approach to the problem is of considerable importance in this case, for even if, as is admitted, the attack on Luba Kreiner, which also led eventually to the killing of Shifman, originated in the disease of paranoia from which the appellant suffered at the time and from which he is suffering to this day, nevertheless, if the judges were right in rejecting the doctors' version that he passed into a state of "trance" before he shot the deceased, neither of the criteria laid down by the legislator in section 14 of the Ordinance as being essential to the upholding of a plea of insanity is, as we shall see later, applicable to the appellant.

 

            In order properly to examine the grounds which led the judges to reject the version of a state of "trance" that the doctors had adopted, it is desirable that we should clarify for ourselves the nature of the disease of paranoia from which the accused suffered. For the sake of convenience only, I quote here the passage in which Dr. Angus MacNiven, a recognised British expert in this field, described the features of this disease in his article, Psychosis and Criminal Responsibility, published in the collection of essays, Mental Abnormality in Crime (edited by Radzinowicz and Turner, p. 8 et seq.). At p. 26, he writes:

           

            "Paranoia is a chronic mental illness which develops gradually over a long period. The delusions which are a characteristic symptom are well systematised. It is an essential characteristic of the illness that the memory and intellectual process are well preserved. The essential core of the personality is preserved. In many cases a study of the patient's life shows that his general attitude to others has been one of suspicion, and that he has always been ready to attribute enmity and hostility to those with whom he has been associated. Persons of this type often appear shy, timid and sensitive, but these outward characteristics often conceal an underlying feeling of self-importance and a desire to lead and to dominate. Sometimes one finds that the patient has an exaggerated idea of his own abilities, and that his failure through incompetence to realize his ambition appears to be the starting point of a delusional system, the purpose of which seems to be to explain and excuse his failure in life.

 

            Not infrequently a painful experience over which the patient has brooded until its true significance has been completely distorted, appears to have been the focus round which his morbid thoughts had developed... a failure...in business may initiate, in a predisposed person, a searching ruminative state of mind which gradually develops into a chronic delusional state.

 

            Although many paranoiacs are querulous, suspicious and aggressive, many maintain friendly relations with those with whom they are in contact, and even with persons whom they believe are taking part in their persecution...

           

            In these cases which form a majority, the illness is of gradual development, and there is usually a prodromal period during which the patient is uncertain about the truth of the delusional ideas which are slowly taking form in his mind. He is alert and suspicious. He feels that his suspicions are well founded, but he is willing to agree that the incidents which have aroused them, may be capable of an innocent interpretation.

           

            This ebb and flow process may last a long time, and even when the illness is fully developed, periods of acute mental tension during which the patient is entirely dominated by his delusions may alternate with periods in which the morbid ideas appear to be in abeyance. When conviction has replaced suspicion, the patient may be forced to act in accordance with his delusional ideas, what action he will take will depend upon the nature of his delusions and upon his general character...

           

            If he is by nature aggressive, his first protest may be an attack upon his aggressor. If he is timid he may decide to flee from his imaginary persecution, or he may, in a state of despair, commit suicide...

           

            For them (paranoiacs) the whole world is hostile and menacing, and every one is an active agent in their persecution. Everything they hear has a double meaning. Every action done by anyone in their presence is misinterpreted as an insult, or a symbolic assault. They are mocked and humiliated. Their characters are besmirched, and life for them is a continuous battle against tyranny and persecution.

           

            The paranoiac's persecutors may be a single individual but usually it is a body of persons...

           

            Offences against the person may arise from different motives. They may be the result of the patient's natural impulse to retaliate upon his persecutors and mete out to them the punishment he believes they deserve, or he may resort to crime from altruistic motives. He may believe he is benefiting his country or the world by killing a tyrant. He may commit his offence not out of ill-will towards the victim, but because he has failed to obtain redress for his injuries by constitutional means, and at last he comes to the conclusion that by committing a crime which will lead to his arrest or trial, he will have an opportunity of ventilating his grievances in Court. The offence may be premeditated and carefully planned, or it may arise out of the impulse of the moment.

           

            A man who believes that his wife is unfaithful to him, and outraged by her denials of his accusation, may strike her impulsively, or he may lie in wait for her paramour and kill him..."

           

            Another expert, who investigated 66 paranoiac cases (see the book, Forensic Psychiatry, by W.N. East, at p. 194), writes:

           

            "In these forms of insanity crimes of violence may be postponed for many years, in spite of the provocation to which the patients are subject as a result of their imaginary persecutions, if they retain their auto-critical faculty. These, however, may become so dominating that volition is ultimately dethroned. And the subjects of delusional insanity, particularly the persecutory and jealous cases, should be regarded as potential homicides always, and the more dangerous if they have tried legitimate means of defeating their enemies and rivals, believe their threats are unheeded, consider they are above the law and indicate by their words and actions that they are losing self control."

 

            In the light of those descriptions, which correspond precisely with what was contained in the opinions of the doctors who gave evidence in our case, I can summarise the principal features of the said disease as follows:

           

(a) This is a chronic disease that develops gradually and over a long period of time;

 

(b) The characteristic symptom of the disease is the existence of a series of delusions, concentrated on an erroneous central assumption;

 

(c) Subject thereto, the memory and reasoning faculties are preserved;

 

(d) The paranoiac develops within himself feelings of suspiciousness, persecution and enmity, towards those with whom he comes in contact, but that does not prevent friendly relations being maintained with his imaginary persecutors outwardly and over a long period of time;

 

(e) An exaggerated estimation of his capabilities on the one hand, and the lack of success in realising his ambitions or in becoming satisfactorily adjusted to life on the other, are likely to serve as the primary basis for the establishing of feelings of discrimination and persecution by others in the mind of a mentally deranged person of this kind;

 

(f) In the further development of the disease, the feeling is aroused within him that his whole universe is full of enemies and detractors, and so he is likely to interpret every action done by others as an attack on his interests. For him, his life takes on the nature of a lengthy and continuous struggle in relation to his persecutors, and even against tyranny and for the cause of justice in general;

 

(g) When the development of the illness reaches the "difficult" degree or "advanced stage", the paranoiac is likely to commit a serious crime, including homicide, because of the feeling that he is forced to act in accordance with his delusions;

 

(h) The crime may he committed according to a programme planned in advance, or it is possible that it will originate in a sudden, internal impulse, in both of which cases the criminal outburst will derive from the loss of control over the will or its weakening to a considerable extent (I shall return to this subject later).

 

            Anyone reviewing the appellant's life-story, and observing his reactions to the various events that have occurred therein, will become aware of the fact that those reactions coincide with the phenomena symptomatic of a paranoiac whose derangement has reached the stage of serious development. A precise analysis of the various stages in that development, based on the evidence of the appellant, of his relatives and workmates, as well as upon the many examinations of the appellant conducted by Dr. Mengel out of court, may be found in the written opinion presented by that doctor (exhibit P/15); but for the purpose of our discussion, I shall again content myself with the summary of these matters found in the judgment of the learned judges who write as follows:

           

            "The source of the accused's mental disorder appears to be an inheritance from his father, and his mode of life which was inducive to the development of the disease; the hard childhood of an orphan who grew up in the Diskin Orphanage in Jerusalem, and after that many years of military service as a supernumerary policeman and a soldier under difficult external conditions which prevented him from achieving rest and reward. From this soil sprouted psychopathic symptoms in the accused, nourished by inferiority complexes and expressing themselves in suspiciousness and feelings of deprivation in his relations with the world around him. Those feelings increased with the passage of time and turned into illusions of wrongdoing and persecution, in his private life, in his work relations in the Kordana plant where the accused worked from 1949, and afterwards in the Ata factory. The accused began to fight against his surroundings.

 

            While he was at the Kordana plant, the accused lost his temper, shouting and threatening the manager of the plant, Dr. Rakoshi, without any objective justification for his behaviour. The accused was then dismissed from his work, and only after great endeavours was returned to work in another place, in the spooling department in Kfar Ata. Here, too, he continued to have a constant feeling of being frustrated and persecuted, and lived in a world of his own which he filled with delusions and in accordance with which he interpreted whatever took place around him. To that must be added the fact of his relationship with Luba Kreiner. On this subject, there is a profound contradiction between the description given by the accused and the version of Luba Kreiner. She does not deny that friendly relations existed between her and the accused, whereas the accused attributes to those relations a much greater importance and contends that, at first, Luba Kreiner attracted him towards her, and afterwards, when he had already surrendered to her influence, threw him over and left him. It is impossible to decide whose description is the more correct, but there is no doubt that from the subjective point of view and in the structure of morbid thoughts in which the accused lived, this affair had a decisive effect on the development of his disease and upon the final outburst, on the day the tragedy took place. Even before that day, the accused's disorder had developed from a psychopathic condition into genuine paranoia and, as the accused's actions that very day testify, he must now be regarded as a danger to his surroundings."

 

            That description of the systematic delusions that have developed in the appellant's mind in the course of his life and which are characteristic of the disease of paranoia in the serious form in which he was suffering prior to carrying out the attack on Luba Kreiner proves, as everyone admits, that that illness ought to be regarded as the principal cause of the attack. However, it is no less certain that those same paranoiac disorders serve equally as an element in the further attack that he made on the deceased Shifman who, as a member of the workers' committee at the Ata factory, belonged to that same group of people which constituted the object of the delusions of frustration and persecution which took control of the appellant. If so, why were the abovementioned doctors unable to rest content with that explanation, and why did they find it necessary to explain the outburst against the deceased Shifman by the fact that the accused suddenly passed into a state of "trance" which means that the appellant was at that moment acting under a clouding of his consciousness, in fact, like an automaton ? There are, indeed, three grounds for this diagnosis of the doctors:

           

            First, they considered that the deceased Shifman - by reason of his being a member of the workers' committee at the factory - ought in particular to have been regarded by the appellant as his good and devoted friend, seeing that it was Shifman who had helped to have him taken back to work after the dismissal resulting from the quarrel that had broken out between him and the plant manager at Kordana; it was he who had assisted the appellant to obtain housing on easy terms and had even signed promissory notes for him in order to make the deal possible; it was he who had seen to it that the appellant would not be out of work when there was a shortage of raw materials at the factory.

 

            That ground did not recommend itself to the judges, in the light of the phenomenon, characteristic of a paranoiac, that in his mind even his best friends often become his enemies and detractors; and on the other hand, Shifman belonged to that same group of persons, the workers' committee, in whom the appellant saw his persecutors.

           

            That view of the judges is supported by the description of the disease of paranoia above quoted, but even Dr. Vinik testified that "a person may also concentrate his hatred on a person who takes an interest in him and assists him, such as a doctor, friend and so on" (p. 171 of the record). Dr. Feldman (p. 216) and Dr. Mengel (in his written opinion, p. 3), too, gave evidence in a similar vein. Moreover, a passage in the statement (P/8), which he made to the police the day after the event, in which he said, "Shifman ever since I have worked in that department, was all the time making trouble for me...", provides additional proof of the negative attitude of the appellant towards the deceased.

           

             Secondly, the doctors considered that the passages in the appellant's evidence (pp. 81, 110, 130), where he states that after he had fired the first shot at Luba Kreiner he became so confused that he did not know at the time what he was doing and after that did not remember how he behaved, ought to be believed. In this connection, they relied on their evaluation of what the appellant said to them when he was examined by them. Dr. Mengel, for example, said in his evidence:

           

            "As a psychiatrist, I believe in the facts he described to me and that he acted in an obvious state of clouding of the consciousness and did not know what he was doing" (pp. 213-214).

 

            Neither did this basis for the doctors' conclusion convince the judges, in the light of what the appellant said in his two statements to the police. In the first statement (P/3), he distinguished between Luba Kreiner and Shifman on the one hand (viz., those whom, according to him, he wanted to kill), and Dr. Weinrib, whom he did not intend to kill, on the other. In his second statement (P/8), he mentioned the worker Besser as one whom he also liked "just as I liked the late Shifman and he stood in front of me and I didn't do anything to him either".

 

            Regarding what the appellant said in his first statement, the judges note that, even assuming that he had heard from Nehemia Rosenberg, the official who was present when the appellant appeared at the office in the water-tower at Kiryat Binyamin and who said to him, "A pity about Shifman", and perhaps also from the other officials in the same office, that he had attacked the deceased and Dr. Weinrib, "it is odd that the accused showed no signs of surprise or agitation when he was suddenly informed that he had hit two more people". As for the remarks of the appellant in the second statement, the judges had difficulty in understanding how the appellant knew, the day after the event, about the fact (which was proved in the case) that when he fired at the deceased, the worker Besser was standing in front of him, if in fact the appellant was acting in a state of "trance" and under a clouding of the consciousness. After all, that is a state of mind which would make him particularly unlikely to remember what he did after he had fired at Luba Kreiner.

           

            That reason of the judges is strengthened by Dr. Vinik's statement (at p. 151) that a person who has fallen into a state of "trance" remembers, after he awakens, only "a few stray details of what he has done" during that time (see, too, the similar evidence of Dr. Mengel at p. 211). In his book, "Criminal Law" (p. 345), the learned Professor Glanville Williams goes further, remarking that only if "the accused has totally forgotten the mischievous act, there will be a tendency to say it was committed in a dream state".

           

            When the doctors were examined in court on the contents of their opinions, they discounted the appellant's remarks in his statements to the police, and counsel for the appellant has followed in their footsteps in his submissions to us. But it seems to me that there is considerable justification in the judges' approach when they say that the words spoken by the appellant the day after the event have a value that cannot be overlooked, to the extent that they provide us with evidence as to his memory of what happened after he had fired the first shots at Luba Kreiner, and therefore also evidence that, at that period of time, he had not fallen into a state of trance at all. In his profound research in the field with which we are concerned here, Mental Disorder and the Criminal Law, Professor Sheldon Glueck writes (at pp. 367, 368), that when one comes to apply, in relation to a paranoiac defendant pleading insanity in a criminal case, the tests whether he knew at the time of the act what he was doing or that his act is forbidden, then:

 

            "If a narrow interpretation of these tests is taken, then language or actions on the part of the defendant, prior to, during, or after the offence, which, to the layman, and considered apart from the whole medical and social history of the defendant, would indicate the existence of such knowledge, may be regarded as conclusive proof that normal knowledge actually existed at the time of the offence."

           

True, he adds that:

 

            "If the precaution is taken to explain to the jury that the knowledge of the paranoiac is necessarily colored by the patient's entire warped judgment and his intellectual and emotional absorption in his delusional beliefs, it is less likely that miscarriages of justice will occur."

           

            Admittedly, this addition is of no importance in relation to the question of the value of the statements of the accused after the criminal act as proof that he committed it at a time when he was fully conscious. It should also be noted that the judges' approach in this matter does not differ from that of the Court of Criminal Appeal in England in the case of Rivett (8), in which it relied on the remarks of the accused to his friend after the commission of the crime as proof that he knew, when committing it, what he was doing and that the act was forbidden (loc. cit. (8), pp. 94, 95).

           

            On the other hand, the statements made by the appellant to the doctors a long time after the incident in question, and on the basis of which they drew their inference that at the time he was in the grip of a state of "trance", requires cautious evaluation, in the light of the well-known phenomenon that people claiming that they cannot remember the wrongful act that they have committed, as it were, during a clouding of the consciousness, are often no more than pretending (see Dr. Vinik's evidence at p. 165). Also from this point of view, therefore, the judges' attitude in rejecting the second ground that served as a foundation for the doctors' conclusion receives cogent support.

 

            The third ground was that, at the time of the incident, the appellant fired, as Dr. Feldman says in his opinion (p. 3), "without rhyme or reason at whoever crossed his path". The judges countered that argument, at least insofar as the moment when the shots were fired at the deceased Shifman is concerned, by relying on the evidence of the worker Besser (at p. 79), that:

           

            "The accused ran in the direction of Shifman. His object was Shifman. The accused deliberately went over to Shifman, and Shifman did not happen to be in front of him."

           

            They also referred to the evidence that the accused did not continue to march like an automaton, but "turned round and continued to chase after Luba Kreiner while she was escaping and to fire at her in particular out of all the male and female workers that were still in the hall of the spooling department". That, continue the judges, "indicates the opposite of just running amok". They explain the shot fired at Weinrib by saying that that man, as distinct from Shifman, who threw himself flat on the floor when he heard the first shots fired at Miss Kreiner, appeared in the direction of the appellant "as an interrupting factor", indeed, they do not completely reject the possibility that at that stage the appellant's mind had already become a little clouded from the shots he had fired up to then and from the panic that had broken out around him. But the essence of the judges' reasoning is based, equally in relation to the third ground of the doctors' version, on the contents of the statements that the appellant made to the police, contradicting as they do the existence of a state of "trance" and complete loss of memory, as has been stated.

           

            The judges' reasons, here set out, seem to me to be sufficiently logical in themselves as to justify our refusing to interfere, as judges sitting in an appellate capacity, in their finding on this point. But even aside from that, I think that that finding may be supported on two additional grounds. First, the trance version hardly seems con­sistent with the disease of paranoia one of the characteristic symptoms of which is. as we have observed. that the power of the person Iabouring under it is generally preserved, and that. subject to his systematic delusions, his powers of reasoning are equally preserved. Whereas the state of trance is, according to Dr. Feldman (on p. 217), tantamount to "a collapse of the ego", in the case of the paranoiac (as Dr. MacNiven emphasizes), 'the essential core of the personality is preserved."

 

            Dr. Feldman admitted this obstacle to the trance version, when he says (ibid.):

           

"In this case, there is a certain difficulty, and that is that on the one hand you have a paranoiac, process, a thing that develops very slowly and is unlikely to affect the clarity of the consciousness, and on other hand, a state of trance, that is, a loss of consciousness for the limited time in which something happened that cannot be understood in the light of the assumption of a paranoiac set-up".

           

            Secondly - and this is the main point - the appellant's attack on the deceased Shifman can be explained by the disease of paranoia alone, not only because of the inclusion of that victim in the class of the appellant's imaginary persecutors, but also, following upon this phenomenon, because of the disease dominating him to the extent of depriving him of his will-power or of weakening it in considerable measure. We shall return later to that explanation, which was put forward by Dr. Mengel as a possible alternative.

           

            It follows, therefore, that neither of the two tests mentioned in sections 14 of the Ordinance, the existence of each of which suffices to absolve from criminal responsibility, existed here. Those two tests, as is well known, originate in the replies of the English judges in 1843 to some of the questions put to them by the House of Lords, in consequence of the case of Daniel M'Naghten (9), for the purpose of clarifying the rules in force in relation to the defence of insanity. It would be right, therefore, to interpret those tests in the light of the English judgments that expound the "M'Naghten Rules".

           

            The first test is whether, at the time of the doing of the act, the accused was incapable, by reason of the disease of the mind under which he was labouring at the time, of understanding what he was doing. The meaning of that test is that, if the accused did not know, at the time of the criminal act, the physical nature (as distinct from the moral nature) of that act - that is to say, in our case, that he is using a fatal instrument in such a way as to be likely, by that act, to kill someone - he is absolved from responsibility (see the case of Codere (10); see also Glanville Williams' above-mentioned book, at pp. 318-319).

 

            Having rejected the trance version, and taking into account the phenomenon that the paranoiac's reasoning faculties are unaffected (apart from the influence of his delusions), I must clearly hold that the appellant knew at the time of the act that he was firing at Shifman and that by means of that shot he was likely to cause his death.

           

            The second test is whether, at the time of the doing of the act, the accused was incapable, by reason of the mental disease, of knowing that he ought not to do the act. "Ought not", means ought not from the moral point of view. The standard of morality is not measured according to the peculiar outlook of the accused but according to the outlook of reasonable men. In other words, the standard in question is an objective one. If, for example, the accused knew at the time of the act that he was carrying out on action in contravention of the law, then he knew that he ought not and should not, from the moral point of view, carry it out (the Codere case (10)).

           

            Here, too, it is clear that once the trance version is rejected, the evidence does not show that at the time that he killed Shifman, the appellant did not know that his act was one that he ought not to do. The fact that he gave himself up to the police indicates the very opposite. Neither does the evidence of the appellant assist him. He testified (on p. 142) that, after he had given evidence to the police, he met Dr. Kelly, and in response to the latter's question, "If I were in your place, what would I deserve?", said to him: "Death". Again taking into account the symptom of the disease of paranoia that was mentioned last, it must be inferred from that answer that also at the time of committing the fatal act in question he knew of its improper nature from the moral point of view. As East said (at p. 204): The offender suffering from systematic delusions "often knows what he is doing and also that he is doing something that the law punishes". Dr. Vinik, too, testified (on p. 154) that when a paranoiac offender carries out a dangerous action "he may know that what he is doing is contrary to the laws of society".

 

                Counsel for the appellant submitted in the alternative that, if the trance version is not accepted, then the cause of the attack on Shifman ought to be found in the loss of control over his will-power, which in its turn originates in the paranoiac disorder. The judges rejected that argument, both from the factual and from the legal point of view.

           

            I shall deal first of all with the question of fact. I am of the opinion that in their attitude to this question, the learned judges were mistaken. Having discounted the explanation regarding the addition of the state of trance to the appellant's mental condition, they had no choice but to accept the same alternative explanation that Dr. Mengel regarded as a possible explanation of the appellant's outburst against the deceased, namely, that his paranoiac disorder dominated him to the extent of depriving him of his will-power or of weakening it to a considerable extent.

           

            (a) In this connection, Dr. Mengel wrote in his opinion (see p. 7 thereof ):

           

            "Another pathological situation was also within the realm of possibility, namely, that the deceased Shifman...could have provided the accused with an object for the expression of his paranoia, and fallen victim as one of his imagined foes; and also in the face of such an account ofthe circumstances, it would be clear that if so, the accused would have been acting not of his own free will, but underthe constraint of overpowering motives of disease over which he had lost his control".

 

And in his evidence in court, he said (on p. 212):

 

            "At times, the psychopath knows what he is doing, but he is powerless to gain control over the pressures of his sick impulses, because they are stronger than the forces of control. I cannot dismiss the possibility that that is what happened".

 

 

            Dr. Vinik also testifies (on p. 154):

 

            "A paranoiac gives expression to his illness at the same moment as the feeling of frustration and the fight for justice dominates him to the extent of depriving him of the will to wage open war against his consciousness...He can give effect to that by the most difficult acts and by the most dangerous means even to the extent of killing men".

 

            b) The remarks of MacNiven have already been quoted above to the effect that when the disease of paranoia has developed to the stage where conviction replaces suspiciousness, "the patient may be forced to act in accordance with his delusional ideas"; so also the remarks of East, that "the imaginary persecution... may become so dominating that volition is ultimately dethroned".

           

            To those two views must be added the remarks of Professor E.R. Keedy, in his article, "Insanity and Criminal Responsibility" (published in the Harvard Law Review, Vol. 30, p. 535, at 559), that:

           

            "In the persecutory stage of paranoia where the patient has a delusion that persons are trying to injure or annoy him, a homicidal impulse frequently develops".

           

            In order to illustrate his remarks, the learned Professor quotes the case of Daniel M'Naghten (9), a paranoiac who suffered from imaginary persecutions and was acquitted of the charge of murder on account of a plea of insanity, seeing that the medical evidence, as Keedy emphasizes, "was to the effect that at the time of the shooting he had no self-control" (ibid.).

           

            (c) The learned judges identified the plea of loss of self control with the plea of "irresistible impulse", and rejected it, from the point of view of fact, on the strength of one solitary reason, namely, that, when "Dr. Vinik was asked, in accordance with the well-known English test, whether in his opinion the accused would have acted the way he did even if a policeman were at his elbow... the answer was that it was difficult to determine that". Admittedly, the judges also bore in mind Dr. Vinik's reservation, that in his answer he was referring only to the first shot fired at Luba Kreiner, whereas as far as the shooting at the deceased Shifman was concerned, "the presence of a policeman would not have made any difference". However, they did not take that reservation into account, since it was based on the version of the "trance" and "amok" theory, and they had already rejected that version.

 

            In my opinion, that reason of the judges is not based on firm ground, since Dr. Vinik was not required to express an opinion, so far as the stage prior to the shooting of the deceased Shifman is concerned, whether that reservation still held good on the assumption that the trance version is untenable. If the question had been posed to him in the light of that assumption, I have no doubt that he would not have altered the content of his qualified reply. I infer that from the statement in his evidence, that:

           

"It may happen that such a patient might, at the time of an outburst, recognise, feel the domination of the destructive forces within him and feel that he is powerless to withstand them, and will warn the others not to come into contact with him and leave him alone and keep away from him. On the one hand, he is in control of himself when he warns and admonishes others, and on the other hand, he is not in control of himself as regards the action itself. Until the action, he can control himself, but at the time of the action he has already lost his balance and the power of control over his will" (p. 155).

 

            It follows from this evidence that that doctor would distinguish between the stage prior to the first shot at Luba Kreiner and the stage that preceded the shooting of the deceased Shifman, and would hold, even without any connection with the trance version, that immediately after he began to fire at the woman, and as a result of that action, the appellant lost his self-control.

           

            (d) The judges' decision on the facts on this point is mistaken from another point of view also. We saw earlier, when the features of paranoia were described, that a paranoiac may commit a criminal act as the result of a sudden internal impulse that he is powerless to resist, but that he may also carry it out with premeditation and in accordance with a programme worked out in advance. Now in the latter case, too, the paranoiac offender should be regarded as having acted the way he did for lack of choice; because the delusions so dominated him, that he could see no way out other than to act according to them. From that point of view, he committed the crime when in fact he was not master of his own free will.

 

            The matters that were noted in the Report of the English Royal Commission on Capital Punishment (1949-1953) may serve to clarify that approach. After criticising (at p. 110, paragraph 314) the use of the term "irresistible impulse" as "too narrow" and "misleading", in that it seems to refer only to cases where the commission of the crime by the person suffering from a mental disease originated in a sudden impulse that moved him to act thus, the Commission draws attention to types of mentally sick persons, among them paranoiacs, that did the wrongful act in accordance with a programme worked out by them in advance, "coolly and carefully". Now the Commission regards such types of patients, too, as persons whose mental disease has affected their will-power (paragraph 315), and it formulates a test the use of which is likely to result in the absolving of those "offenders" from criminal liability. The test is whether (paragraph 317):

           

            "at the time of committing the act, the accused as a result of disease of the mind... was incapable of preventing himself from committing it."

           

            Finally, the Commission quotes the case of an act of one Ley, whose behaviour testified to his being "a typical case of paranoia" and who, as a result of that disease, killed a man after he had planned the execution of the fatal plot for some considerable time. That man, it held, knew indeed the nature of the act and that it was forbidden, but it may nevertheless be argued that he was not capable of avoiding the realization of his criminal programme since he was incapable, on account of his delusions and the world of other false values in which he lived, of desiring, or of making an attempt, to avoid committing the crime - he was not capable of evaluating properly those moral considerations that have the effect of restraining a sane man (p. 111, paragraphs 319-320). Had he, accordingly, set up the defence of insanity, there would have been room, according to the said test, for absolving him from criminal liability. The Commission emphasises, however, that they might perhaps have come to the opposite conclusion by applying the well-known test of Lord Bramwell (which the judges in our case favoured), that if the insane person (who knew in fact what he was doing and that his act was forbidden) would not have "yielded to his insanity if a policeman had been at his elbow", he cannot be relieved of responsibility. According to that test, it held, only those defendants that have acted in a state of semi-consciousness, automatism and frenzy, will escape conviction. (In another part of the Report, note is made of the fact that in England, the latter test has in practice been abandoned for some time. p. 103; see also the criticism levelled at it by MacNiven, from a different point of view, in the above mentioned article, p. 53; and the disapproving remarks of Guttmacher and Weihofen on the same matter, in their book Psychiatry and the Law, p. 411).

 

            (e) The remarks of Dr. Mengel (on p. 213) may be understood in the light of this approach when he states that even if the appellant had contented himself with shooting Luba Kreiner in order to kill her, "then, too. he would have done what he did in consequence of a psychiatric condition, and would not have been in a condition to be able to control what he was doing". He arrived at the conclusion notwithstanding his assumption that the appellant "had determined to put an end to that woman" (loc. cit.). We know from the evidence of the appellant, that he had brought the revolver that he used on the day of the incident from his home - a fact indicating a prior planning of the fatal programme against Miss Kreiner - and we know also that Dr. Mengel had before him a copy of his evidence on which he based his conclusions (p. 209). This version of the doctor, namely, that in planning the attack on Miss Kreiner, the appellant was acting in a state of lack of self-control, can only be understood in the light of the explanation that his disease had brought him to the stage where he was incapable of acting otherwise than in accordance with the dictates of his sick delusions and the world of "justice" in which he lived, that he was incapable, even at the time of committing that act, of being influenced by ethical considerations that are calculated to restrain a sane man from committing it. By which I mean that he could not control himself even in the primary stage of the attacks that he made on the day of the incident.

           

            (f) The last quoted approach, too, is calculated to rebut the judges' attitude in relation to the question of fact that was argued. But in our case, I see no reason for calling that approach in aid. When one reads together the observations of Dr. Mengel and Dr. Vinik, which I considered in paragraphs (a) and (c) above, then there is only one conclusion to be drawn from them: that in any event, at the stage when the first shots were fired at Luba Kreiner, the effect of this act upon the appellant was added to his paranoiac state, so that at the same time, there were liberated "the pressures and the sick impulses that are stronger than the powers of control". as Dr. Mengel says, and he lost ''his balance and the power of control over his will", as Dr. Vinik words it (the third doctor, Dr. Feldman, confined himself to the trance version). The necessary conclusion is, therefore, that when he attacked the deceased Shifman and killed him, the appellant did so while in a state of lack of self-control, lack of ability to act according to his free will.

 

            So much for the question of fact. Were the judges right in the attitude they adopted as regards the question of law? If we consider this question from the point of view of the "M'Naghten Rules", and therefore from the point of view of the tests laid down in section 14 of the local Ordinance, we shall have no alternative but to accept their decision.

           

            1. Those who, in the countries in which the "M'Naghten Rules" apply, favour the view that in insanity cases it is proper to recognise the plea of "irresistible impulse", do so from three different points of departure. One school of thought holds that the common law includes a third test additional to those laid down by the rules, namely, that the accused will not be liable if it appears that in consequence of the disease of the mind under which he laboured, he was not in a position to control his behaviour. The reasoning behind this view is threefold. First, in their replies to the questions of the House of Lords, the judges did not intend at the time to present an exhaustive account of the law applying to the problem of insanity, and did not intend to exclude the possibility of the effect that the mental disease is liable to have on the volitional and emotional systems. For in the proviso to their statements in reply to the second and third questions - the reply containing the tests whether the accused of unsound mind knew what he was doing and that he ought not to do it - they added an important reservation, being that, when directing the jury to decide according to the above stated tests, the direction ought rightly to be accompanied with such observations and corrections as the circumstances of each case may require" (Stephen, "History of Criminal Law", Volume 2, p. 159; also Glueck, p. 180). Secondly, one of the fundamental elements of criminal law is that no accused person may be judged guilty unless the act, the subject of the offence with which he is charged, was specifically "voluntary", and so if he was labouring under a disease of the mind which prevented the existence of that element, then he is not liable (see Kenny, "Elements of Criminal Law", edited by Turner, at pp. 24, 80; also Keedy, in the aforementioned article, at p. 548). Thirdly, the common law does not constitute a system of law frozen in its tracks; rather it continues to develop in accordance with the experience of life and the teachings of medical science in general. Now that science teaches us that the "mind" of man is not divided into individual compartments unconnected one with the other, but is a singe unit, that is, a combination of reason with the systems of will and emotion, between which there is constant, mutual activity. Therefore, what appears on the surface as a partial impairment of the reason (as in the case of systematic delusions), is nothing but a symptom of the mental disease affecting the "mind" as a whole, including the will and the emotions. This phenomenon, whenever it exists, must be taken into consideration, and by reason thereof, the accused person of unsound mind is to be regarded as not responsible for his acts (see Glueck pp. 172-173, 265-266).

 

            As authority for the view that the common law embraces the above stated test, in addition to the M'Naghten tests, those in favour of this approach usually point to the judgments given: -

           

            (a) Before the giving of the judges' replies, in the cases of Hadfield (11), (Russell, Vol. 1, p. 49); Daniel M'Naghten (9), above referred to ; R. v. Oxford (12), (Glueck, p. 153) ;

           

            (b) Afterwards - in the cases of R. v. Hay (13); R. v. Fryer (14), and R. v. Holt (15). Counsel for the appellant relied on these last three judgments in the present case. In the case of Hay (13), Darling J. directed the jury to bring in a verdict of "guilty but insane" if they believed the medical evidence, which had established that the accused knew "he was firing a revolver, and that it was wrong to do so, but that owing to disease of the mind he was unable to control the homicidal impulse which dominated him".

           

            (c) The same test has been accepted by courts in some of the States of the United States (see A.L.R., Vol. 70, p. 663 et seq.). The leading judgment is that in Parsons v. State (28); see also Smith v. U.S. (29).

           

            (d) And in South Africa also (see South African Criminal Law and Procedure, by Gardiner and Landsdown, 5th ed., Vol. 1, p. 67).

           

            To my mind, it is quite clear that, within the framework of the local section 14, at all events, there is no room for adding as a third and independent test, the test of inability to control the will-power as a consequence of the disease of the mind. The reason is that, in laying down the rules mentioned in that section (and from the medical point of view, that indeed is the weak spot in them), the legislator put the emphasis on the impairment of the system of reasoning faculties, as distinct from the volitional and emotional systems. The test, as has been stated, is whether the accused by reason of his mental disorders, did not "understand" what he was doing or, alteratively, did not "know" that his act was forbidden. In criticising the "judges' replies" from the scientific point of view, Glueck writes (loc. cit., p. 172) that they do not take into consideration the fact that:

 

            "The cognitive mode of mental life can hardly be said to be disturbed without this also being an indication of the disturbed condition of the inseparable emotional-volitional life of the accused."

           

            That applies equally to the identical tests laid down in our section 14, and it follows therefrom that its language leaves no room, ex vi termini, for the addition of another test, namely, that which absolves from criminal liability on account of the injury inflicted by the mental disease on the will-power.

           

            In fact in the courts in England, the view has recently become crystallised that the "M'Naghten Rules" are exhaustive on the question of insanity, and it has accordingly been held in a number of cases there, that the law is not to be extended by the addition of a rule providing that the accused will be absolved from liability if driven to committing the offending act by an impulse originating in a disease of the mind (see, in this connection, R. v. Flavell (16);R. v. Kopsch (17); Sodeman v. R. (5); R. v. True (7), obiter).

 

            The judges in our case indeed placed their reliance on those English precedents. I shall return later to deal with the question whether in section 14 the local legislator intended to include provisions of an "exhaustive" character. What I mean to establish at this stage is only that, within the framework of those provisions, at all events, no room is left for applying any additional tests.

           

            2. The second school of thought that urges the taking into account of a mental disease affecting the accused's will-power, claims to remain within the limits of the M'Naghten Rules. Its point of departure is that, so long as the medical evidence points in that direction, it is proper to absolve a man from liability if the interval impulse that drove him to commit the crime and which originates in a disease of the mind was sufficiently powerful so as completely to destroy the ability to distinguish between right and wrong. In his book, Glueck writes (at p. 239):

 

            "In some of the States where the irresistible impulse rule does not obtain, some courts make a rather questionable concession to the principle, by saying that if the irresistible impulse is the result of mental disease sufficient to override reason and judgment, and to obliterate the sense of right and wrong, it will excuse from criminal responsibility. This doctrine seems to be the expression of a transition stage between the exclusive right-and-wrong rule rigidly applied, and the judicial recognition of the fact that there is more to mental activity than its cognitive mode, and that the law itself, when treating of criminal intent, considers volitional capacity as necessary as cognitive capacity."

           

            The American court established a rule in accordance with this "compromise" approach in State v. Nixon (30); and in the light thereof, Greer J. explained the purport of his remarks when, in his direction to the jury in the above mentioned case of Holt (15), he lent his authority to the test of "irresistible impulse". He meant (so he said afterwards in the case of True (7)), that "if a man's will power was destroyed by mental disease it might well be that the disease would so affect his mental powers as to destroy his power of knowing what he was doing, or of knowing that it was 'wrong'. In this event, 'uncontrollable impulse' would bring the case within the rule laid down in the M'Naghten case" (see R. v. True (7), at p. 167).

           

            Finally, it is possible to explain away the verdict of acquittal brought in by the jury in the case of Daniel M'Naghten (9), according to the same approach. It will be recalled that the learned Professor Keedy regarded that decision as authority for the existence of the test of "lack of self-control" as an independent test, in that - as he explained in his article (pp. 558, 559) - on the one hand there was no evidence that the accused could not distinguish between right and wrong and, on the other hand, it was proved that at the time of the criminal act, he was deprived of all self-control. If that view is right, there is indeed an inconsistency between the verdict of acquittal and the direction of Tindal C.J. who presided over that case, and who confined himself to the test of the ability to distinguish between right and wrong. In fact, if we closely examine the medical evidence, as summarised in the English Reports, at p. 718 (9), we find that it established no more than that a man labouring under a sick delusion might succeed in appreciating right and wrong, but that in the case of the accused M'Naghten, "it was a delusion which carried him away beyond the power of his own control, and left him no such perception". Such a finding, therefore, enables the inconsistency existing between the verdict of acquittal and the judge's direction to be cleared up, in that it connects the fact of the destruction of the will-power (by the mental disease) with the test of loss of ability to distinguish between right and wrong. That is the true meaning of the verdict of acquittal in that case, and it is perfectly consistent with the outlook of the second school of thought.

 

            This school of thought would take into consideration, therefore, the effect of the mental disease on the accused's will-power, but only to the extent that that influence has in itself resulted in the utter destruction of his ability to distinguish between right and wrong; and in that special way, claims to remain faithful to the M'Naghten Rules and not to exceed their limits. Indeed, whatever the value of that approach may be, in our case I find it impossible to draw any assistance from it, having upheld, on the facts, the judges' conclusion that the appellant knew, when he fired at Shifman, that his act was morally wrong.

           

            3. The third school of thought, too, is in favour of the general aim of remaining loyal to the M'Naghten Rules, but demands the granting of a "wide" or "liberal" interpretation to those rules. The doctrine is that a man, whose mental disease has impaired his willpower, is likely to be in a state of inability to weigh, in a rational manner, the significance of the act that he is about to do, whether it be a physical significance or a moral significance. It may be that in the "narrow" sense, he knows that the act will result in the killing of a man and that a prohibition of the law applies to it; yet nevertheless, because of the weakening of his volitional powers and the injury to his emotions, his reasoning faculties also fail him (in that state of "momentary anger"), to the extent that he is unable to appreciate properly the true nature of his criminal action or that it is prohibited. From the broad point of view, it cannot be said of such a man that he "understood" what he was doing or that he "knew" that his act was improper in the moral sense, and for that reason he does not bear responsibility according to the M'Naghten Rules either. The foundation-stone of that approach is once more the modern medical theory regarding the insoluble connection between the reasoning, volitional and emotional faculties of man, so that if one kind of faculty is impaired, it means that the other kinds are impaired also.

 

            Stephen, who favoured the test of lack of self-control originating in a mental disease as an independent test (the first school of thought), but was not certain whether it was included in the existing law (see History of the Criminal Law in England, Vol. II, p. 149, note l), also belongs to the third school of thought. He expounded his doctrine in these words (ibid., at p. 170):

           

            "The power of self-control must mean a power to attend to distant motives and general principles of conduct, and to connect them rationally with the particular act under consideration, and a disease of the brain which so weakens the sufferer's powers as to prevent him from attending or referring to such considerations, or from connecting the general theory with the particular fact, deprives him of the power of self-control.

           

            Can it be said that a person so situated knows that his act is wrong. I think not, for how does anyone know that any act is wrong except by comparing it with general rules of conduct which forbid it, and if he is unable to appreciate such rules, or to apply them to the particular case, how is he to know that what he proposes to do is wrong ?"

           

Again, at p. 171:

 

            "If the words 'know' and 'wrong' are construed as I should construe them . . . . . the absence of the power of self-control would involve an incapacity of knowing right from wrong."

 

Finally (ibid.):

 

            "Knowledge and power are the constituent elements of all voluntary action, and if either is seriously impaired the other is disabled. It is as true that a man who cannot control himself does not know the nature of his acts as that a man who does not know the nature of his acts is incapable of self-control."

           

            Stephen J. put this theory into practice in the spirit of that approach - a kind of "practise what you preach" - in his direction to the jury in the case of Reg. v. Davis (18); and many instances of its application may be observed today, too, particularly with regard to cases of paranoiacs and their systematic delusions (see "Criminal Law", Part 2, by P. Dickstein, at pp. 399, 400; also Glueck, at pp.366-367). Stephens explains the verdict of acquittal in Hadfield's case (11), mentioned above, in the light of that approach. The facts were: Hadfield Iaboured under a fancied notion that he had received an order from Heaven to sacrifice his life in order to save the world. Accordingly, he decided to shoot King George III during the latter's visit to the theatre, in order that he might afterwards be prosecuted in a criminal court for that act, convicted and sentenced to death. In the event he missed the target and was arrested. At the trial, he was defended by the famous lawyer Erskine, whose attractive arguments (which at the time marked an important turning-point in the rule of insanity in England) moved Kenyon C.J. to direct the jury to absolve the accused from responsibilty (see "History of the Criminal Law", etc., p. 59). Hadfield, says Stephen, did in fact know the nature of the act - that he was firing a loaded revolver at the King. Moreover he knew of the prohibition imposed by the law; in fact it was that very knowledge that led him to effect his plan of which - or so he anticipated and even desired - the immediate result would be his conviction under the law of treason and his execution. But, Stephen goes on to hold, "I could not say that such a person knew that such an act was wrong. His delusion would prevent anything like an act of calm judgment in the character of the act" (ibid., p. 167).

           

            The fact is that many of those who are opposed to an amendment of the M'Naghten Rules by adding the test of "irresistible impulse" place their reliance on the same view, that the existing tests can take the "wide or liberal" interpretation of Stephen. For example, in the debate that took place in the House of Lords on a Bill drafted in the spirit of such amendment (following on the recommendation of the Committee of Experts presided over by Lord Atkin), Lord Haldane explained his opposition to the Bill in these words:

 

            "I have never heard of these rules embarrassing any judge who really had a case before him in which justice required an acquittal or prevented him from giving such direction to a jury as would enable them to apply these rules in cases.... when the impulse was so dominant as to deprive a person of freedom or of any realisation of what he was doing."

                        (This is quoted from East's book, at pp. 67-68,)

           

            Can this somewhat attractive view afford us any assistance when we come to interpret the language of the legislator in section 14 of the local Ordinance ? I have given serious consideration to this possibility, for applying such a free interpretation of the rules provided in that section would certainly deliver us from the network of difficulty in which the present appeal has enmeshed us. I say "network of difficulty" since, on the one hand, there can be no doubt that the appellant, at the time when he shot the deceased, was suffering from a mental disorder which had already reached very serious proportions, to the point of depriving him of his will-power; it was that disorder which provided the cause and the reason for that act; and justice and common sense would require that we relieve him of responsibility for it. On the other hand, it has been found that he understood what he was doing and he knew the prohibition of the law. The approach last mentioned is attractive because by bestowing a "wide" or "liberal" interpretation on the words "to understand" and "to know" in section 14, we could relieve the appellant from punishment within the framework of the tests laid down in that section.

           

            However, I cannot see that the way is open to us to call that particular solution in aid. For if we interpret the terms "to understand" and "to know" in section 14 in the sense of "properly appreciating" or "weighing quietly and in a rational manner", we shall only confer on them a far-fetched and artificial interpretation, in place of the simple meaning that the words convey. If the appellant knew at the time of the act that he was aiming a loaded revolver at the deceased and that by pressing on the trigger a bullet would escape which was likely to hit the victim and to kill him, then he "understood", in the language of ordinary man, the physical nature of his act. If he knew at the same time that he deserved punishment for his behaviour, then he "knew" - again, in the language of ordinary men - that it is improper from the general moral point of view. It is a different matter altogether to say that, in consequence of the impairing of the volitional and emotional system, by the disease of the mind, the appellant passed into a state of "momentary anger" in which he was deprived of the ability to appreciate properly or to weigh in a quiet and rational manner the extreme significance of his lethal behaviour or its far-reaching effects. And it is a different thing entirely to hold, as the Royal Commission held in relation to the case of Ley, that the systematic delusions of a paranoiac are so likely to dominate him as to render his mind no longer open to counter-persuasion and he will, for that reason, lose the capacity to refrain from carrying out the criminal plan dictated to him by the delusions. But, neither of these constitutes the tests that the legislator provided in section 14, in which the emphasis was placed on the element of absence of "knowledge" in its ordinary meaning. From that "narrow" point of view, the disease of paranoia, as we have seen, does not produce an absence of knowledge in the man who is suffering from it.

 

            I have analysed at some length each of the three opinions referred to in order to answer the question whether, in our case, the argument of lack of self-control caused by a disease of the mind can be included within the framework of the rules laid down in section 14. The upshot of this analysis is that, from the point of view of those rules the negative answer of the learned judges to the question is well-founded.

           

            But, having reached that last conclusion, the complex matter in which we are engaged has not, to my mind, been solved. The question still remains at the forefront of our attention: whether the tests stated in section 14 in fact serve as complete and exhaustive tests, or whether there is room in our criminal law for applying the principle, of which the foundation is laid in section 11 subsection (1) of the Ordinance, which provides as follows:

           

            "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

 

            I emphasise the words "act or omission which occurs independently of the exercise of his will", and the question I pose is this: whether, in the light of the requirement proceeding therefrom – "the requirement of the exercise of the will in committing the criminal action" - it would not be right to assert that the local law envisages the use, as regards the defence of insanity, of a test distinct and separate from those provided in section 14, namely, the test of inability to control the will-power originating in the mental disease of the accused.

 

            Now, this question renders it necessary to return first of all to another, similar question, one we have already hinted at, namely, whether there is not in first something in the assertion of the "first school of thought", that we can scarcely suppose that on the problem of insanity, the common law would not also recognise the last mentioned test, and not give it the authority of an independent, self-supporting test and, that being so, the M'Naghten Rules cannot be regarded, on any account, as being complete and exhaustive in this field? It seems to me that, in this instance, we would be best advised to act as we have acted in the past whenever we have sought to solve other problems concerning criminal law, namely, by having recourse first of all to the fundamental approach of the common law to the problem with which we are engaged, seeing that that law, as this court has declared from time to time, constitutes the source from which the legislator drew in enacting the provisions of the local Ordinance.

           

            It will surely be asked : how is a fresh examination possible, in this country, of the question whether the common law regards with favour the plea of "irresistible impulse", where the accused is relying on the defence of insanity, when that question has already been given an authoritative answer in the negative by the English courts in judgments in which it has recently been considered - judgments such as Flavell (16), Kopsch (17), and Sodeman (5) (vide supra). I am not of that opinion, if only for the reason (and at this stage, I confine myself to that reason alone) that in England today, in life and in first, that negative answer does not correspond to actual practice, in the vast majority of cases. By that I mean that there exists ample evidence that in recent years English courts of first instance have succeeded in giving effect to the argument, so long as there is sufficient ground for doing so in the body of evidence. Even in those few exceptional cases where the plea had been proved, yet for all that rejected, the court occasionally drops a hint as to the possibility of commuting the sentence of the convicted man (see, for example, True's case (7), at p. 170). Even without such a suggestion, the Home Secretary in England in cases of that kind and after all the trials at the various instances have been completed, would usually carry out a fresh medical examination (something that the law empowers him to do), and if the results of that examination were to justify it, would also recommend that the extreme penalty be not exacted. So, for example, Lord Atkin asserted in a lecture that he gave in 1925 to the Medico-Legal Society:

 

            "The illustration of the law is very much more generally liberal than would be the case if it were carried out in strict accordance with the letter. In practice, the judge, the counsel, the jury, the witnesses and all concerned are desirous, in case of uncontrollable impulse, to acquit the accused on the ground of insanity." (Quoted from "The Modern Approach, etc.", at p. 416.)

           

            Moreover, in 1953, the Royal Commission, in the Report mentioned above, after reviewing the evidence placed before it on the question of the actual application of the M'Naghten Rules as exhaustive rules, held that:

           

"The broad conclusion... from this evidence is that,...in cases where their strict application would result in a manifestly unjust verdict they may be 'stretched' or even ignored, and that nevertheless cases do occur – though no doubt rarely - in which the effect of applying the Rules is that sentence of death has to be pronounced on a prisoner whom it would be clearly wrong to regard as responsible for his act. This does not mean that anyone who is certifiable as insane would ever be executed. It was generally accepted by our witnesses that the safeguard of the statutory medical inquiry after conviction ensured that no one who was definitely insane would now be executed."

(p. 85.)

 

            Having regard to that shaky and not very firm standing enjoyed today in England by the aforementioned "negative" rule -a kind of "rule that nobody teaches"1⁾ or at all events, that "nobody observes" - I am of opinion that those judgments in which that rule was laid down need not prevent us from investigating afresh, as if it were a prima impressionis, whether the fundamental approach of the common law to the defence of insanity requires us to turn a favourable ear to the plea of irresistible impulse above referred to.

 

            Accordingly, let us open that investigation.

           

            A. The common law looks at the problem of insanity in two ways: it is basically an ethical-legal approach. Its ethical assumption, and that even in days gone by, is that if, when he committed a wrongful act, a man was labouring under disorders of the mind in such a way as to make it unreasonable to hold him responsible, it would not be right to convict him, still less to inflict punishment on him. Thus, as early as the reign of King Edward I (1272-1307), this approach could be perceived in the repeated recommendation of the jury, when they were satisfied that the accused was mad when committing the act, that he be pardoned; and at the beginning of the fourteenth century, after the granting of a pardon, as a consequence of recommendation on that ground, had become a matter of course, the plea of "lunacy" in murder cases acquired the status of a defence as of right, absolving the accused altogether from criminal liability (see Holdsworth, "History of English Law”, Vol. 3, pp. 312-316; also, Stephen, Vol. 2, p. 151). At the beginning of the seventeenth century, Coke gave pungent expression to that ethical notion, when he wrote (Institutes, Part III): "Furiosus solo furore punitur". That that was not a mere notion, detached from the outlook of his generation, appears from the words that Shakespeare put into the mouth of the hero of his play:

           

"... Hamlet is of the faction that is wronged; his madness is poor Hamlet's enemy".

           

            That special approach, originating in a sense of justice and fairness, has remained applicable in England, so far as the question of insanity in criminal law is concerned to this day; and a straight line may be drawn between Coke's epigram I have cited and the account of the same principle by the Royal Commission in 1953. So, the assumption of the Commission as to "the continuance of the [said] ancient and humane principle that has long formed part of our common law" is of importance (Report, p. 98).

           

            If we pause here for a moment and examine the question before us from the standpoint of that fundamental principle, namely that it is a problem of justice and morality which accounts for the person of unsound mind being absolved from responsibility, for otherwise punishing him for his criminal act is like punishing him for his madness, against which our sense of justice revolts, then it would be difficult, if not impossible, to reject the defence of inability to control the will-power and to withstand an internal impulse, when it has been proved that the existence of that mental state is accounted for by a disorder from which the accused was suffering at the time of the act. In his article, "The Royal Commission and the Defence of Insanity" (Current Legal Problems, 1954, p. 18), Glanville Williams writes :

           

            "...it is generally felt to be unjust (or inhumane) to punish one whose powers of control are seriously weakened by mental disease. An insane person, said Maudsley, has the right to claim the privilege of his disease, and the compassion which attaches to affliction in civilised lands."

           

            Guttmacher and Weihofen also note (in their above-mentioned book, p. 412), that:

           

            "Justice does not call for retribution from one who did not act from choice. On this premise, irresistible im­pulse should be accepted as a defense, for there is no justice in punishing a person for what he could not help."

           

            True it is that, while it was concentrating on the ethical aspect of the problem, the common law directed its attention (and in the time of Coke and his predecessors, it was natural that it should so do) only to the object of "retribution", and, as it were, ignored another penal object, deterrence. The first object - that the sense of justice should be satisfied - excludes the approach that the sinner shall not profit thereby" 1) from application to the insane offender; on the contrary, the sense of justice demands, as we have seen, that the insane offender in particular should not be punished. But, does a result such as that coincide with the social aim of the protection of life and property through the threat of the law to punish all who break it? Does not the object of "that others may hear and fear", therefore, require that we should reject the defence of "irresistible impulse" no less in the case where it originates in a disease of the mind? This argument indeed, being bound up with the principle of deterrence as a fundamental aim of the criminal law, served as a guide, in the second half of the previous century, to certain individual English judges in their rejection of that defence. So, for instance, in the case of Reg. v. Haynes (19), Bramwell B. said, in his direction to the jury:

 

            "But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it... But if the influence itself be held a legal excuse rendering the crime dispunishable, you at once withdraw a most powerful restraint - that, forbidding and punishing its perpetration." (Quoted from the collection "Cases on Criminal Law", edited by Turner and Armitage, pp. 64, 65.)

           

            I do not think that argument can survive examination. The principle of "deterrence" or "restraint of the law", when serving as an end of the criminal law, has two sides to it. One is that the man about to carry out some vile crime is likely to hold back on recalling to mind the threat of the law to punish him heavily if he puts his plan into action. The other side of it is that the fact of the offender's being punished is liable to serve as an example and a warning to others. These two aspects together are no more than two sides of the same coin: the desire to restrain the committing of offences. Those who criticise the aforementioned argument for rejecting the plea of "sick impulse" must take into account both those aspects of the principle of deterrence, and their reply to those protagonists of the admonitory character of the criminal law as a foundation for that negative approach must, therefore, be a double one. Indeed, such a reply, that knocks the ground from under the "objectors", was once more given by Guttmacher and Weihofen, when they said (ibid.):

           

            "An individual who labors under irresistible impulse cannot be deterred and so there is no purpose in holding him criminally responsible."

           

            And at p. 413:

           

            "Nor is the punishment of such a person very valuable as an example to others. The average man is not exposed to increased inner temptation at seeing a person go unpunished who could not... avoid his act. On the contrary, punishing such a person is likely to be repugnant to the average man's sense of fairness and justice."

           

            These last words restore us to the healthy approach of the common law, which, in its relation to the insane offender, prefers the human aspect to the object of deterrence. Indeed, the fact that the convict Haynes (19) was in the end pardoned by the king (see Turner and Armitage's Collection, at p. 65), rather weakens, from the functional point of view of the criminal law, the argument about "the restraint of the law", used by Bramwell B. in the above mentioned case. Finally, even if we assume (I, for one, do not share that view) that one cannot be entirely certain that the threat of the criminal law might not succeed, in a certain case of "sick impulse", in influencing behaviour, even then the conclusive consideration is bound to be the one tied up with the sense of justice which all feel, and not in the consideration that perhaps the fear of punishment may, for all that, have the effect of turning the scales, in the thoughts of the person labouring under such an impulse, in favour of deterrence and restraint. Even Glanville Williams, who is party to the view concerning the possible influence of the criminal law even in the case of ''sick impulse", agrees that that should not constitute a decisive consideration. "In practice", he writes in his above mentioned article (ibid.),

           

"criminal punishment is not governed exclusively by the deterrent theory; the deterrent theory is modified by a notion of justice; some value is attached to the personality of the killer... Even those lawyers who think that insane impulse should not be a legal defence now generally concede the propriety of executive intervention to avert punishment."

 

            B. So much for any answer to the present question, in the light of the ethical side to the approach of the common law to the defence of insanity. The other aspect - the legal one - is: the accused, who was suffering from a disease of the mind at the time of committing the criminal act, will not be punishable simply because his disorder had the effect of negativing the existence of a criminal mind or "mens rea", the element that the criminal law has postulated in regard to the vast majority of serious offences. This way of dealing with the problem - which is bound up with positive criminal law - was once more indicated at the time by Coke, when he laid down (vide his Institutes, supra, ibid.):

 

            "...For in criminal causes, as felonie, etc., the act and wrong of a madman shall not be imputed to him, for that in those causes, actus non facit reum, nisi mens sit rea, and he is amens... sine menti, without his mind or discretion."

           

            This view, too, that exemption from liability on account of a mental disorder is like exemption by reason of the absence of a criminal mind, has remained to this day in England a corner-stone of the institution of insanity on the criminal side, as the judgment in the case of Felstead v. R. (20) testifies. Explaining there the true meaning of the verdict "guilty but insane", Lord Reading states, at p. 542:

           

            "That is not a verdict (holding) that the accused was guilty of the offence charged, but that he was guilty of the act charged as an offence... this verdict means that, upon the facts proved, the jury would have found him guilty of the offence had it not been established to their satisfaction that he was at the time not responsible for his actions, and therefore could not have acted with a 'felonious' or 'malicious' mind, which is an essential element of the crime charged against him."

 

He adds:

 

            "The indictment of the appellant was for 'feloniously' and 'maliciously' wounding (the victim) with intent to do some grievous bodily harm. It is obvious that if he was insane at the time of committing the act he could not have had a mens rea, and his state of mind could not then have been that which is involved in the use of the term 'feloniously' or 'maliciously', for 'crimen non contrahitur, nisi voluntas nocendi intercedat'."

           

            We learn there from that the common law, on the strength of the principle of "mens rea" which it championed, made the accused's conviction dependent upon the fact that his mental faculties were working properly at the time of the act; accordingly, whenever a mental disease has impaired those faculties to the extent that one of the elements of that principle is absent, the upshot ought to be exemption from criminal liability. Indeed, in the case of Ya'acobovitz v. Attorney-General (1), at p. 545, I noted that:

           

            "The concept of "mens rea" as an element required in every offence originating in the common law, demands that the prosecution prove at least these two things : (1) that the accused voluntarily carried out the action which is the subject of the charge; (2) that at the time of the act, he foresaw the possibility that the result which the law prohibits might spring from that conduct of his."

 

            In that case, indeed, much was said concerning the second element - foreseeing the forbidden result - whereas here, the case calls for the placing of emphasis on the first element, volition.

           

            (1) In my judgment (ibid (1), at p. 545), I added these words:

           

"Intention' means that at the time of the act, a person not only foresaw what was to come but also desired it... It is necessary to prove criminal intent as regards most offences, that is to say, in addition to a voluntary action, anticipation accompanied also by a desire to cause the outcome which is forbidden."

           

            "Criminal intent", therefore, constitutes a more complex notion than "criminal mind" in its aforementioned meaning, in that "volition" plays a part in it (the criminal intent) even as regards the injurious result and not only as regards the immediate action that served as the means for causing that result. We are accustomed to saying that A '"intended" to do a certain act, whereas, assuming that that act does not constitute by itself the object of the legal prohibition with which we are concerned, we will not attribute to that man a "criminal intent", if he did not have in mind, as the final aim "desired" by him, the injury that will flow from his act and which the criminal law is designed to prevent. If A, holding a loaded revolver in his hand, waves it in the direction of B only in order to frighten him, and a bullet happens to fly out and causes the latter's death, we will not attribute to A a "lethal intent". in that he did not "intend" such a result, that is to say, did not wish it. But on the other hand, it is true that where a volition exists regarding the injurious outcome, there in any event exists a volition in respect of the means by which it is obtained ( Salmond, Jurisprudence, tenth edition, p. 380) - whence the saying: "He who wills the end wills the means".

 

            In our case, in order to commit the felony of murder, of which we are asked by counsel for the respondent to convict the appellant, there is required, inter alia, a "lethal intent" (see section 216(a) of the Ordinance), that is to say, a volition regarding the fatal result, and of necessity also a volition regarding the action likely to lead of itself to the same result; in other words, a "criminal intent". The lighter offence of manslaughter, however, of which the appellant was convicted by the District Court, is satisfied, in addition to the foreseeing of the anticipated danger to the life of the victim or to the soundness of his body, by the existence of a volition only as regards the criminal action. Accordingly, "volition" relating to the criminal action constitutes an element common to both those offences. But for the purposes of the trial of the restricted question before us at this stage, there is no point in separating the two aspects of volition. It will be recalled that the question is whether the defence of insanity is available to a person criminally charged either with murder or with manslaughter, where it has been proved that in fact, on the one hand, he was aware of the fatal result likely to flow from the act that he was about to do, whereas, on the other hand, he lacks volition, in that the mental disease that afflicted him has released powerful forces lying dormant within him and has forced him to act in the way he has acted. The facts hypothesised in order to establish that question mean, therefore, that the element of volition is absent "all along the line", both as regards the result and as regards the action, in that in consequence of the mental disorder, the accused has been deprived of the capacity of avoiding the act that was to enable the realisation of that aim. Thus, as we established earlier, those facts are identical with facts in our case. It follows that hereafter we shall concentrate on the "voluntary element" of mens rea, without separating the two aspects of this element, as stated.

 

            (2) Even if the phrase "the foreseeing of the prohibited outcome", in place of the expressions "knowledge", "understanding","capacity to understand", and the like, is a relatively modern phrase in use for describing the intellectual element that the notion "mens rea" entails, the fact is that the need for the presence of the "voluntary" element, in its plain meaning, has been referred to over and over again in English legal literature throughout many generations. In the middle of the seventeenth century, Hale wrote ("Pleas of the Crown", Vol. 1, pp. 13-15):

 

            "Man is naturally endowed with these two faculties, understanding and liberty of will... The consent of the will is that which renders human actions either commendable or culpable... Where there is no will to commit an offense, there can be no transgression, or just reason to incur the penalty or sanction of that law instituted for the punishment of crimes or offenses."

 

            Blackstone, who wrote in the latter half of the eighteenth century, also referred to the same principle of volition ("Commentaries", Vol. 4, Chapter 2); so, too, Stephen, more than a hundred years later ("History of the Criminal Law of England", Vol. 2, p. 97), and even Holmes, at about the same time (in his book "The Common Law", p. 54). In our times, Turner stated it (see Kenny, "Elements of Criminal Law" edited by him, p. 24) in these words:

           

            "In cases in which a man is able to show that his conduct, whether in the form of action or of inaction, was involuntary, he must not be held liable for any harmful result produced by it."

           

            Those authorities suffice to show that we are not speaking of a single or chance ruling, but of a principle that has become a firm foundation of the common law and which started back in early days (the idea of voluntas nocendi is mentioned as early as the writings of Bracton, who wrote in the thirteenth century; vide Keedy's above mentioned article, at p. 548, note 43). If in England, therefore, the rule of insanity on the criminal side has become crystallised through a neglect of the voluntary element, that phenomenon should be regarded as a serious departure from the system that struck roots in that branch of the law a long time ago and which has continued in it till this day.

           

            (3) What is meant by "the voluntary element"? First of all, it is important to note that when they talked of "volition", common lawyers were referring, in the main, to the process in which a person exercises a "choice" between alternative objectives. and therefore also a "choice" between alternative lines of conduct. Their basic approach, again a completely ethical approach, apparent also from the remarks of Hale which I have mentioned, was that every normal man is endowed with a "free will", and is able, therefore, to choose between right and wrong, between conduct that is proper from the moral point of view and conduct that the criminal law (giving expression to the rules of morality) looks upon with disfavour. So they called an offender the man who was faced with the choice of doing "as one should", and yet went and misbehaved and did wrong; in the language of Maimonides (Hilchot Teshuva, Chapter 5, Halacha "A"):

 

            "The right is given to every man: if he wishes to follow the good path and to be righteous, he is free to do so; and if he desires to follow the path of evil, and to be wicked, he is free to do so".

 

Professor Roscoe Pound once wrote (quoted by Glueck, p. 111):

 

            "Our traditional criminal law thinks of the offender as a free moral agent who, having before him the choice whether to do right or wrong, intentionally chose to do wrong”

           

            According to that viewpoint, "will" means, not just will, but free will, and "volition" means, not only a muscular movement, but an action preceded by free choice. "Willed movement", comments Perkins (in his article, "Rationale of Mens Rea", 52 H.L.R., on p. 912), "always has a voluntary element and hence the phrase voluntary act' is merely tautological as so applied." There is perhaps no need to state, that experts in psychology also recognise today the function fulfilled by "choice" as regards the process of volition (see the book "Psychology", by Harvey A. Carr, at p. 314). But, while English lawyers in the past placed the emphasis on that factor, those engaged in research in the above-mentioned field today also take into account the "striving or conative tendency" working in any case within every person and frequently aiming at giving relief to the emotions. In his book, Glueck writes (p. 114):

           

"The striving or conation... is of the very essence of mental life, and continues constantly. The volition is merely a more strongly felt striving, as the result of judgment or choice between alternatives; in other words, the volition necessarily implies the entering of conscious intelligence into the compound mental experience.”

 

            Thus, that mode of thought of giving preference to the action of an utterly intellectual faculty, or "choice", in the process of volition, is what led astray the shapers of the rule of insanity on the criminal side in England, as will become clear later in this judgment.

           

            Secondly, a distinction should be drawn between an "unwilled" action and an action carried out as the consequence of compulsion, that is to say, between the contention that mens rea is lacking by reason of the absence of volition, and the defence of constraint or duress. When a particular person threatens to injure the life or property of another if the latter does not commit a criminal act, the possibility of "choosing" is indeed restricted, but it does exist within certain limits. If the man to whom the threat is directed yields and commits the act demanded of him, it means that he has acted "of his own free will", since even if that criminal act is not "desired" by him, even less desirable to him - at least so he considered - is the loss of his life or property; so he chose to follow a line of conduct that led to the outcome less objectionable to him (see Stephen, pp. 101-102). Accordingly, it is understandable why the defence of necessity was limited in its application to a limited number of cases - those where the threat is of injury to life or limb, as distinct, for example, from the threat of injury to property (see section 17 of the Criminal Code Ordinance). On the other hand, however, it is equally clear that nothing in that same restricted approach adopted by criminal law to the problem of necessity, hints at a narrowing of the principle of mens rea in the sense of the voluntary element therein, a principle that logically requires exemption from liability in every case that is unaccompanied by the element of ''choice" or "free volition" of the act, the subject of the offence charged.

           

Thirdly, the fact is that in the past, in order to illustrate an action that was "not voluntary" and was for that reason bereft of any criminal character, some of the English authors and judges were content to quote an example of the kind where the hand, arm or body of another person is used as the instrument by means of which the injurious result was caused. Take for example, Hale, who wrote in his work (Vol. 1, p. 343):

 

"If A by force takes arm of B and the weapon in his hand, and therewith stabs C, whereof he dies, this is murder in A, but B is not guilty."

           

            As early as 1842, in the case of Reg. v. Pitts (21), the English judge explains to the jury that "A man may throw himself into a river under such circumstances as to render it not a voluntary act; by reason of force, applied... to the body..."

           

            It is in fact very doubtful whether it is possible in cases of that kind to attribute even the criminal act to a person whose body, or part thereof, has served as an instrument in the hands of another, and whether the question of volition arises there at all. But it is very likely that the start of the "voluntary element" is to be found in a case concerned with facts of that kind (an example similar to that quoted by Hale was cited as early as 1550 in the case of Reniger v. Fogossa (22); see Keedy's article (loc. cit.), and vide Russell on Crime, tenth edition, p. 29). Nevertheless, such words of illustration ought not to be regarded as indicating a tendency to restrict the rule of exemption from liability by reason of the absence of volition only to that class of cases in which physical force exerted by another constituted the cause of the criminal act; for a person will equally be exempt if his criminal action was not accompanied by will as a consequence of his being stricken with a particular mental condition that is quite unrelated to external physical influence. In other words. there is no justification (and this equally applies to the provision to be found in section 11 of the local Ordinance) for limiting the generality of the "voluntary" principle, as it has developed in England in the course of time and the meaning of which, as Stephen stated, is that "no involuntary action . . . amounts to crime" (Vol. 2, p. 100). "I do not know indeed", he goes on to comment, "that it has ever been suggested that a person who in his sleep sets fire to a house or caused the death of another would be guilty of arson or murder".

           

            Only a few months ago, in the case of Reg. v. Charlson (23), a man was acquitted in England of a charge of causing grievous bodily harm to his son and maliciously wounding him, in view of the medical evidence which raised the possibility that he was suffering from a cerebral tumour, and as consequence of that condition was acting, at the time of the deed, as an automaton without self-control, even though he did not raise the defence of insanity at his trial. After dealing with the standard of mens rea required for each of the offences contained in the indictment, Barry J., in his address to the jury, cited the example of the man who, while in the throes of an epileptic fit causes another's death. That man, as he said, would not be punishable since he was acting as an automaton without any control or knowledge of the act which he was committing" (ibid., at p. 862). In likening such a case to the matter being tried before him, the judge arrived at the following summary:

 

            "The question is whether the accused knew what he was doing when he struck the blows. If he did not know...if his actions were purely automatic and his mind had no control over the movement of his limbs, if he was in the same position as a person in an epileptic fit then no responsibility rests on him at all..." (Ibid. p. 864 (23).)

 

            See also the remarks of Professor Jerome Hall in his book, "General Principles of Criminal Law", p. 388:

           

"...movements in the course of an epileptic seizure no more constitute volitional conduct than does slipping on an icy walk..."

           

            Fourthly, the cases last mentioned, namely, where a person commits a criminal act in his sleep or during an epileptic fit, are truly cases in which that person was acting without cognisance or consciousness. That indeed is the fact that determines that there is a lack of self-control, seeing that volition involves the presence of cognisance or consciousness. A person who extends his hand without sensing that he is doing so is not making a voluntary movement-he lacks consciousness. All criminal behaviour, according to Glueck (p. 98), entails:

           

            "...the exercise of the capacity for conscious, purposive, and therefore voluntary action."

           

                        "Free volition", he says (pp. 104-5), means:

           

            "The capacity to express, partially inhibit and consciously guide the innate tendencies to purposive action."

           

            Again (at p. 107):

 

            "The state of mind includes the consciously controlled striving tendency which we call volition."

           

            However, the opposite is not true, that is to say: the absence of volition does not necessarily involve the non-presence of cognisance or consciousness. Those who claim that the defence of insanity extends to "a sick impulse that is irresistible", wholly assume, as we have seen, that the accused was fully conscious, and even aware of the injurious result liable to flow from his future conduct, yet nevertheless was unable to avoid it because, at the time of the act, he was not in control of his will-power. "Where there is consciousness”, notes Glanville Williams (in his book, p. 13), "a party is capable of 'acting' even though he is subject to an uncontrollable impulse. An act presupposes will, but not 'free' will." As stated, the body of evidence in our case indicated an identical factual situation. Accordingly, from the stand-point of the principle of mens rea, in the sense of the voluntary element involved therein - from the standpoint of the system of the common law on the criminal side - there exists no logical reason, as distinct from practical considerations that perhaps demand a different conclusion, for not absolving from responsibility even in cases of that kind. That, too, was propounded by Professor Glueck when he stated (p. 117):

           

            "...According to the theory of criminal law, an impulse shown to have been irresistible is just as destructive of the intention and volition necessary to constitute the mental element of a criminal act, as unconsciousness of the act, or mistake of fact."

 

            That indeed is the consistent approach of Somerville J., in the case of Parsons v. State (28), which is, as stated, the leading case in the United States, and in which the argument of "sick impulse" was accepted. After noting that there are two basic elements necessary before there can be legal liability for any offence: (a) the ability of the mind to draw distinctions and (b) freedom of the will, the judge added :

 

            "If, therefore, it be true, as matter of fact, that the disease of insanity, can, in its action on the human brain through a shattered nervous organization, or in any other mode, so affect the mind as to subvert the freedom of the will and thereby destroy the power of the victim to choose between the right and wrong, although he perceive it – by which we mean the power of volition to adhere in action to the right and abstain from the wrong - is such a one criminally responsible for an act done under the influence of such controlling disease? We clearly think not..."

           

            Fifthly, I do not overlook the fact that, among those engaged in research in jurisprudence, there exist two views regarding the place to be allotted to the voluntary element in criminal conduct. One view says that "volition" constitutes an element belonging to the "act", or, as Salmond says, act means "any event which is subject to the control of the human will"; accordingy "volition" constitutes one of the basic elements of the actus reus - meaning that, without volition, we will not attribute even the offending act to the accused (see Professor Jackson's article in the book, "The Modern Approach etc.", at p. 270 et seq.). On the other hand, the other view says that volition, being a mental element, belongs to the principle of mens rea, for otherwise, as Glanville Williams states (vide his book, p. 14), we should render the legal distinction between "act" and "state of mind" empty of all content. Wigmore, too, is party to this view (Evidence, second edition, Vol. 1, section 242), when he holds that "the specific will to act, i.e. the volition exer­cised with conscious reference to whatever knowledge the actor has on the subject of the act" constitutes "the distinct element in criminal intent".

           

            Although I am inclined to the latter view, I do not attribute great importance for the purposes of the present case to this difference of opinion.

           

            (1) Even the protagonists of the "act theory" - the first view - do not deny that, as regards volition, we are referring to an obvious mental element the existence of which is requisite for the completion of the offence, and so if the finding of that element is negatived by a mental disease, there can be no justification for regarding the person possessed of such a disease as punishable.

           

            (2) This requirement of the criminal law has been specifically laid down following on the development of the doctrine of mens rea and under its influence.

            In that matter, Turner commented (in Russell, pp. 29-30):

           

"This requirement (that his actions must have been voluntary) was a natural development from the original conception of mens rea, for it is not easy to detect wickedness where ...a man's mind and will are not directed to what he is doing; it would therefore not seem improper to employ the expression 'mens rea' to describe the particular element in criminal liability which must be proved against the accused person."

           

            And the question of insanity, with which we are dealing, also fits in with the traditional approach of the common law towards "mens rea".

           

            I am in a position, therefore, to sum up my remarks at this stage in this way: From the standpoint of the legal aspect by which the common law observed the defence of insanity, this matter is to be regarded as pertaining to the question of the existence of "mens rea"; that fundamental principle has always necessitated the presence of volition in the accused at the time of the criminal act; the fact that this element was, through the influence of serious mental disorders to which he was at the time subjected, absent, suffices logically to justify his relief from punishment.

           

            C. As stated, the English rule of insanity did not succeed in developing in the spirit of the previous conclusion. The lawyers who had a hand in the shaping of it, would lay down from time to time, as the test by which to determine the existence of a mental disturbance sufficient to absolve from responsibility, only formulate expressly referring to an impairment of the reason and the understanding, as distinct from an impairment of the will and the emotions. Take each of the tests prevailing at any given time on this problem and you will find that this and no other was the way the question was treated. This applies, for example, to the distinction once made by Hale between "utter" madness, which relieves from punishment, and "partial" madness, which does not so relieve, and to the essence of the test which provided for the discovery of madness of the first kind, namely, a standard of understanding below that of a healthy youth of the age of 14. The same emphasis on defect of the reason characterises that test that Bracton mentioned long before, and which was adopted in 1724 by Tracy J., in the case of R. v. Arnold (24), namely, that a person will not be regarded as punishable who "do not know what he is doing, no more than... a brute, or a wild beast"

           

 (quoted in the collection of judgments, "Criminal Law Cases", by Michael and Wechsler, p. 809). It applies to the well-known formula of Hawkins, who wrote at the end of the eighteenth century - the formula of "a natural disability of distinguishing between good and evil" (Pleas of the Crown, sixth edition, Vol. 1, section l), which in 1812, became, in Lord Mansfield C. J.'s direction to the jury in the case of Bellingham (25), a test of the absence of ability to distinguish between right and wrong. "If a man were deprived", he says :

 

"of all power of reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law. Such a man, so destitute of all power of judgment, could have no intention at all" (quoted in the above mentioned collection, p. 808).

           

            Erskine, too, who in securing the acquittal of his client Hadfield, succeeded in disproving Hale's distinction and saw in a sick delusion "the true character of insanity", took pains to point out in particular the impairment of the reasoning system. Even the conclusions of persons suffering from delusions are sometimes "sound and reasonable", he said, but "the premises from which they reason, when within the range of malady, are... false" (Russell, Vol. 1, p. 49).

           

            Such is the kernel (I have no intention of making an exhaustive historical analysis) of the idea along the lines of which the rule of insanity ultimately took shape in the form of the famous M'Naghten Rules, in which, too, the emphasis was placed, as stated, on the disturbance of the system of cognitive senses, as distinct from the disturbance to the volitional and emotional systems.

           

            It is very evident that those rules, like the tests and formulas that preceded them, contain one weak point important to our case, namely, the formulists' assumption that man lives in fact by his reason alone, that is to say, that that element in his personality alone guides his behaviour and directs it; whereas we know today, insofar as the psychological theory of our times teaches us so, that man's 'ego' constitutes a unit combining the systems of the reason, the will and the emotions, without any possibility of separating them, and that in the mental process, both the systems last mentioned accordingly fulfil functions no less - and perhaps even more – important and powerful than those that the cognitive senses fulfil. However, in order to elucidate my remarks, it seems advisable, at this juncture, to quote a little of the criticism that has been levelled at the M'Naghten tests, in the light of the findings of the psychological-psychiatric science of modern times.

 

            In a highly significant judgment delivered about a year and a half ago by the Federal Court of Appeals in the District of Columbia of the United States, in the case of Durham v. U.S.A. (31), Bazelon J. said, at pp. 16-17:

           

            "The science of psychiatry now recognises that a man is an integrated personality and that reason, which is only one element in that personality, is not the sole determinant of his conduct. The right-wrong test, which considers knowledge or reason alone, is therefore an inadequate guide to mental responsibility for criminal behaviour...

 

            Nine years ago we said: 'The modern science of psychology ...does not conceive that there is a separate little man in the top of one's head called reason whose function it is to guide another unruly little man called instinct, emotion, or impulse in the way he should go'."

           

            In that decision, a passage was quoted from the strong language employed by Professor Glueck in reference to the same matter, and in which he gave the M'Naghten tests the name of "knowledge tests". These are his words:

           

      "It is evident that the knowledge tests unscientifically abstract out of the mental makeup but one phase or element of mental life, the cognitive, which, in this era of dynamic psychology, is beginning to be regarded as not the most important factor in conduct and its disorders. In brief, these tests proceed upon the following questionable assumption of an outworn era in psychiatry; (1) that lack of knowledge of the 'nature or quality' of an act (assuming the meaning of such terms to be clear), or incapacity to know right from wrong, is the sole or even the most important symptom of mental disorder; (2) that such knowledge is the sole instigator and guide of conduct, or at least the most important element therein, and consequently should be the sole criterion of responsibility when insanity is involved..."

 

            Finally, in the Report of the Royal Commission which I have already mentioned, it is noted (p. 113, s. 324):

           

            "The gravamen of the charge against the M'Naghten Rules is that they are not in harmony with modern medical science, which is reluctant to divide the mind into separate compartments - the intellect, the emotions and the will - but looks at it as a whole and considers that insanity distorts and impairs the actions of the mind as a whole. The existing Rules, which so patently divorce the reason from other mental functions, are peculiarly open to this objection, and it would manifestly be lessened by the addition we have suggested."

 

            That criticism suffices to reveal to us the real reason why in their endeavour to define the rules touching the question of insanity, common lawyers ignored the voluntary element implied in "mens rea" - an oversight that is almost without precedent in the other problems of the English criminal law. The truth is that they did not pretend in any way whatsoever to disown the actual need for this element in the body of the offence, but under the influence of the misleading notions prevalent in the world of medical science of their time, they were possessed of the idea that, in the realm in which the mental process in a man exists, the government is entirely in the hands of the reason, and that the will and the emotions serve only as "satellites" of the former, and are subordinate to its rule. Nowadays, as stated, there is a disposition to think otherwise, namely, that those three systems, between which a constant mutual activity is going on, constitute a combined unit that is not capable (save for purposes of analysis and explanation) of separation or division, and that it is very likely that it is just the will and the emotions that occupy the important place in the mental side of life, whilst the "ability to understand", "consciousness", "knowledge" and the like are no more than auxiliary instruments made available to the other systems (Glueck, p. 251).

           

            So we have seen that when the consciousness is impaired to such an extent that a person does not know (or only half-knows) what he is doing, and also when his ability to distinguish right from wrong is impaired, the power of free will is in any event weakened to a considerable extent if not extinguished entirely; and so, insofar as the various formulators of the tests regarded one of these conditions as justifying exemption from criminal liability, then by the same token they were in fact taking into consideration the requirement that the criminal action be accompanied by the voluntary element, Wherefore there is no cause for quarrelling with the words of Hale when he says:

 

"And because the liberty of choice of the will presupposed an act of understanding to know the thing or action chosen by the will, it follows that where there is a total defect of the understanding, there is no free act of the will in the choice of things or actions."

 

            However, when he concluded that only the negativing of the totality of the power of reason justifies the removal of liability, in that only in the existence of a situation of that sort is there evidence of the absence of volition, he was mistaken, just as afterwards the judges in the replies in the case of M'Naghten (9) were mistaken when they contended that only the lack of ability to understand what is going on or the incapacity for knowing that the conduct is prohibited suffices to negative the presence of volition and by reason thereof to relieve from punishment. It follows that the formulists necessarily ignored the voluntary element in "mens rea" in relation to the case where volition is absent, despite the non-impairment of the systems of reason and understanding in one of the meanings formerly mentioned. This, then, is the explanation for what is lacking both in the M'Naghten tests and in those that preceded them and paved the way for the crystallizing of the English rule of insanity in its present form. (For the view that the methods known as faculty psychology and phrenology, which are nowadays out-dated and outmoded, were observable at the time in the drafting of the M'Naghten Rules, see Guttmacher and Weihofen, p. 418).

           

            So now that the ground has been removed from under the medical findings that served as the assumption and the foundation on which the settling of the present rules was based, and the weakness which we have pointed out in them has been made apparent, there remains no logical reason to prevent us from turning to the traditional method of the common law in the matter of insanity, from either of its points of view; that is to say, there exists today no logical reason restraining us from recognising the test that enables exemption from criminal liability in circumstances where the accused performed his deed in a state of lack of self-control in consequence of the mental disease that afflicted him at the time. For it is on this that the common law "prides itself" (so it is repeatedly declared in every generation), that it never rests on its laurels, but knows in every age how to take into account the ever-developing and everchanging facts of life, and the development of science in general (see Kaufman v. Marginess (2), at pp. 1032-1033).

 

            D. Do there exist any other considerations calling for a different conclusion. This is the occasion for reconsidering the judgments that were delivered in the cases of Kopsch (17), FIavelI (16), and Sodeman (5), and to which reference was made in an earlier part of this judgment; perhaps the judges in those cases had in mind considerations such as these when they rejected the defence of "sick impulse". In point of fact in the actual words employed in setting out the reasons for their negative conclusion, nothing is mentioned in express or specific language, not by so much as a word, that might suggest a consideration of the kind stated. In the case of Kopsch (17), Hewart L.C.J. contented himself with expressing his disapproval of "the fantastic theory of uncontrollable impulse which, if it were to become part of our criminal law, would be merely subversive". As to why in fact things would so turn out, the learned Chief Justice was silent and gave no explanation. In FlaveII's case (16), Sankey J. refused to adopt the argument that the M'Naghten Rules were alterable "in the light of modern medical opinion", only because it had been dearly laid down that those Rules are exhaustive of the law applicable on this question. Finally, in the case of Sodeman (5), an appeal to the Privy Council on a judgment given by the Supreme Court of Australia, Lord Hailsham was unwilling to depart from the rulings laid down in Kopsch (17) and FIavelI (16), for otherwise "the effect will be that different standards of law will prevail in England and in the Dominions."

           

            Nevertheless, it is quite certain that the negative approach on the part of the judges in England to the plea of "sick impulse" was nourished in the past on the consideration that it is impossible, or at least exceedingly difficult, to distinguish between an impulse that a person labouring under a disease of the mind is incapable of resisting (an irresistible impulse) and one that he simply avoids resisting (an unresisted impulse). That consideration was also bound up with the fear lest the "judges of fact", being laymen, might easily be led astray by a defence camouflaged under the name of "sick impulse", instead of appreciating that the real motive for the criminal outburst is referable to anger, a will to revenge, enhanced sexual lust and such-like distractions. Outward evidence of the great weight attributed to these latter considerations may be found in the remarks of Lord Hewart made in the House of Lords some year-and-a-half before he delivered the judgment in the case of Kopsch (17), and in which he gave his reasons for opposing the aforementioned recommendation of the Atkin Committee. The following are his observations, presumably reflecting, in equal measure, the ground of objection of the ten judges, of whom he declared on that occasion that they partook of the same view:

 

            "In practice if this new limb were to be added to the alternatives in the rules in McNaghten's case it would be impossible to distinguish between the impulse of the person said to be suffering from mental disease, and the impulse of the ordinary offender who is moved to commit a crime for the desire for gain or revenge" (quoted in East's book, p. 67).

 

In a similar spirit Lord Cave voiced his objection to that recommendation:

 

"I am seriously afraid that the last result may be that in many cases crimes caused either by sexual passion or by anger and vengeance which today meet with just punishment, may escape punishment altogether" (ibid., p. 68).

 

            I think that those considerations, today and in the State of Israel, are of little or no value whatsoever.

           

            (l) An impulse that cannot be overcome, and caused by a disease of the mind, constitutes a phenomenon the existence of which is undoubted by the professional psychiatrists of our time (vide Glanville Williams' book, p. 342; also Keedy's article, p. 550); the present case (along with other cases) proves that. For that reason, no court of any kind can with impunity adopt an attitude of refusing to distinguish between conduct, the cause of which lies in an impulse of this sort, and a plain angry, vengeful or sexual outburst.

           

            (2) Neither should it on any account be thought to be beyond the capacity of a court properly to distinguish between the two, in view of the progress of medical science in this field, and the existing facility with which its knowledge and assistance in this connection may be made available, by means of expert and experienced psychiatrists, to the professional judges, to whom in Israel the task of investigating the genuiness of a plea of sick impulse is entrusted. The judges in our case, for example, were so assisted, and in the course of the trial, sufficient opportunity was given for the carrying out of a satisfactory examination of the appellant (Dr. Mengel examined him no less than 28 times), and for the presentation of an expert opinion, the contents of which were, as has already been stated, most thorough and comprehensive. Moreover, if it is contended that the present case is exceptional, an account of its obvious circumstances, whereas in the majority of cases, the court is likely to encounter diagnostic difficulties liable to confound every endeavour an its part to appreciate the true nature of the impulse in question, then I must, in reply, refer to the considered opinion of the Royal Commission (Report, p. 109, section 313), that:

           

"We do not think it would be impossible, though no doubt it might often be very difficult. Nor do we believe that recognition of the irresistible impulse would be likely to lead to unjustifiable verdicts of insanity in cases of crimes prompted by anger… or sexual passion, provided that it was always made clear to the jury that they must be satisfied not only that there was an irresistible impulse but that the impulse was due to disease of the mind."

           

            (3) Experience abroad teaches us that in the past, the plea of sick impulse has provided an accused, who had "nothing more concrete to rely on", with an excuse or pretence only in cases where the offence with which he is charged involves the death penalty (Guttmacher and Weihofen, p. 414). Now that that punishment has been abolished in Israel in regard to the offense of murder, it seems reasonable to assume that the danger of "camouflaging" has decreased to a considerable extent. Furthermore, I attach great importance to the conclusion once expressed by Cardozo J. as to the fruits of the experience of several of the States of the United States in which the test of sick impulse has been adopted, namely:

           

            "I am not aware that the administration of their criminal law has suffered as a consequence" (Selected Writings, p. 387).

 

            (4) I do not deny that from time to time, "border-line" cases are liable to come before the court, and that in such cases, it may well have difficulty in arriving at the true nature of the impulse or motive occasioning the criminal outburst; indeed, in such cases, it is bound to tread most warily before deciding on its final diagnosis. However, this difficulty involved in the task of judging does not justify (as a local authoress recently commented) "the application of the same, harsh law" to the offender "who deliberately chose to follow the pursuits of his heart", and the sick person, who perpetrated his offence "on account of an impulse that gained complete control over him" ("The Criminal of Unsound Mind", by M. Ben-Porat, "Law and Cases" for 1955, No. 17, p. 7). In other words, the admission of the possible existence of complications and stumbling-blocks in the path of making the factual diagnosis is one thing; the recognition of the existence of a legal rule exempting from criminal responsibility by reason of "sick impulse" is another.

           

            Nor should it be forgotten that the phenomenon of "borderline" cases is not a special feature of the present problem of the criminal law, for it has forever been the habit of that law to draw lines, every one of which is indeed clear and definite by itself, whilst the question whether certain conduct falls on one side or other of the line is not always amenable to easy solution.

           

            (5) I have not overlooked the observations of my learned col­league, Goitein J., when he stated in his judgment in Attorney-General v. Sepal (4), at p. 414, as follows:

           

"By concealing the unconquerable urge under cover of the subjective test, we are injecting the doctrine of the irresistible impulse into the law... If that doctrine is suitable for us, it is for the Israel legislator to enact an express law in connection therewith."

           

            However, I think that my colleague was not referring to the impulse of which the cause of its gaining control lies in a disease of the mind, for in the remarks following thereon, he does not deal with that kind of impulse (see for example, paragraphs 10-11 of his judgment), and that kind, moreover, was not under consideration in that appeal. Indeed, in that connection, I need do no more than draw attention to the words of the Royal Commission, that:

 

"No responsible person has ever proposed the recognition of irresistible impulse except in conjunction with insanity or mental disease. The general consensus of psychiatric opinion does not regard an aggressive psychopath or a sadist - and still less a person who is merely hot-tempered or sexually unrestrained - as suffering from insanity or mental disease.... ." (ibid. pp. 109-10).

 

            The subjection of the aforementioned test to that reservation, namely, that it only concerns the impulse flowing from a disease of the mind, must of necessity, therefore, result in the removal (or in the considerable reduction) of the fears of abuse of the plea of "irresistible impulse", and as stated, there is no connection between that test, as subject to the said reservation, and the observations of Goitein J. in the Segal appeal (4).

           

            (6) Finally, it would be convenient to mention also at this juncture the words of the Supreme Court in the time of the Mandate, that "the defence of 'uncontrollable impulse' in insanity cases is one not known to English law, and the only test is that as stated and laid down in M'Naghten's case" (Khalil v. Attorney-General (1)). Now, even if I assume, as I am inclined to think, that by those remarks the court was intending to suggest that the local law followed English law, nevertheless, it is quite evident to me that no greater weight ought to be attached to those remarks than to an obiter dictum not necessary to the actual decision. For in the event, the court decided in that appeal to recognise the defence of insanity on which the appellant had relied, for the appellate court found on the basis of the medical evidence, that in the case of that appellant the test of "inability to distinguish between right and wrong" had been satisfied. (ibid., p. 92).

           

            So we perceive that even the "practical" approach to the problem before us does not suffice to justify, in a suitable case, not using the "volitional' test in regard to a defence of the kind in question. On that ground, in addition to the ground concerning its lack of consistency in the day-to-day life of the law, the rule laid down in English case law cannot serve as a guide for us; whilst the "opposite" view expressed, in the wake of that ruling, in the local judgment remains as I have said, an obiter dictum.

 

            E. So ends the investigation I have conducted into the English rule applying to the problem in question. In the course of that inquiry, we have given our attention to: (l) the ethical-moral aspect of the common law on the defence of insanity; (2) the principle of "mens rea", in use in that legal system in this field also, while at the same time emphasising the voluntary element contained therein; (3) the findings of modern medical science relative to our case; (4) the "practical' considerations on which those who reject the plea relating to sick impulse have placed their reliance. We undertook that inquiry with but one object in view: in order that we may be able to answer the question whether the provision in Section 11(1) of the Criminal Code Ordinance justifies, and even requires, the employment in a suitable case, as regards the said defence, of the volitional test, or whether the use of that test is impermissible because the test embodied in section 14 are the only ones applicable. The conclusion which necessarily follows from the analysis that we have made in each of the four stages of our investigation is, that the local criminal law does indeed justify and require, by virtue of the said provision in section 11(1), the removal of the criminal liability from an accused in relation to whom it has been proved that, at the time of the act, he was prevented from controlling his will-power by reason of the disease of the mind under which he was labouring at the time.

           

            But that conclusion cannot yet be final, and our labours will not be complete, unless we call attention to certain provisions in the local legislation, which may possibly reveal signs or hints pointing in the direction of a different, opposite conclusion. I have in mind the first provision in section 4 of the Criminal Code Ordinance; the one contained in the proviso to section 14; and the text of section 54(1) of the Criminal Procedure (Trial upon Information) Ordinance.

           

            Section 4 of the Criminal Code Ordinance: I need not advert to the second provision in this section, since in our case we are not concerned with the construing of a term or terms, mention of which is made in the body of that Ordinance, as was the case, for example, in the appeal of Segal (4). As has been suggested, however. the first provision, referring us to "the principles of legal interpretation obtaining in England", is important for us. To the group of words in quotation-marks I attribute the meaning that, when we come to construe what is written in any one of the sections of the Ordinance, we are bound to take into consideration the same principles that an English court would apply, when trying to interpret the intention behind the written law that it is dealing with. Now, as is well known, one of the principles of interpretation is that whenever there exists a contradiction between two provisions belonging to one written law, then if the application of the one provision is limited to a special group of matters - a kind of lex specialis - whilst the other provision is general and relates to all the material constituting the subject matter of the law - a kind of lex generalis-then the latter is rejected in favour of the former; that is to say, preference is given, to the extent to which the particular matter mentioned therein is concerned, to the special provision, and the general provision is interpreted as referring to the other matters to which it may suitably be applied.

 

            The pertinence of that principle to our case might possibly be this : since the exemption from criminal liability on account of mental disease is mentioned only in section 14, and even the heading, "insanity", appears in the margin of that section alone, then it is in the nature of a ''lex specialis", designed to apply to the kind of cases in which the accused seeks an acquittal on account of the mental disorder that affected his behaviour, whereas section 11(1), which embodies the voluntary element of "mens rea", does not expressly mention either "mental disease" or 'insanity", or (aside from the exception coming at the beginning) any other special matter. In a situation such as that, must we not take the view, when speaking of a plea of madness based on a mental disease, that the "general" provision in section 11(1) is rejected in favour of the "special" provisions in section 14, and is it not essential, therefore, to regard the latter as exhaustive and all-embracing ?

           

            Secondly, the second part of section 14 read

           

"But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission."

 

            The question is whether that language does not also reveal a tendency to confer a meaning of "exclusiveness" on the tests set out in the first part of that section.

           

            Thirdly, in subsection (l) of section 54 of the Criminal Procedure (Trial upon Information) Ordinance, in which the form of the verdict of "guilty but insane" is laid down, the legislator directed that that is the form to be used if it appears to the court that at the time when he perpetrated the criminal act, the accused was, by reason of the disease of the mind then affecting him, "incapable of understanding what he was doing or of knowing that he ought not to have done the act, etc." This provision was enacted some three years after the enactment of the Criminal Code Ordinance, including section 14 thereof (Official Gazette 964, dated November 23, 1939, p. 115); and so the question necessarily arises whether there may not be in the subsequent provision some evidence of an approach on the part of the legislator (which would, of course, be entirely consistent and unambigous), namely, that only if there is present in the accused one of the conditions mentioned in the two laws together, will there be room for recognising the defence of insanity which he has set up, whilst the provision in section 11(1) aforesaid is entirely foreign to that defence and is inapplicable to it.

           

            I have considered most carefully each of these three possible "objections", and my final opinion is that there is nothing in any of them, nor in their "combined effect", which can unfavourably affect the conclusion I had come to before I took them into consideration. I shall set out the reasons that led me to dismiss them.

           

            The first "objection": I respect the principle of interpretation mentioned above. But the present case is hardly a suitable one for its application. First of all, the principle that a special provision takes precedence over a general provision is taken into consideration, as stated, only when there exists between the two a contradiction that cannot be settled in any way, so that the application of the general provision would of necessity mean the total exclusion of the special provision. But, if there is no complete contradiction between the provisions in question, and there is no need to hold that the legislator disclosed a lack of consistency in relation thereto, the court is bound to aim, as far as is possible, towards giving effect to all parts of the law under consideration (see the authorities collected in Craies, fifth edition, pp.205-206). Thus the recognition, on the basis of the provision in section 11(1). of the pertinence of the above mentioned "volitional" test to the defence of insanity creates no inconsistency whatsoever between that provision and the provisions contained in section 14, in the first part, in that here we are speaking of a test supplementary to the ones provided in that section, and therefore of the addition of a test that stands in no contradiction whatsoever to the other two.

 

            Secondly, I do not think that in enacting the first provision in the mid section 4, the legislator intended at the time that the court here should accord to the principles by which the written laws in England are customarily construed, a greater value than that accorded them by the courts of that country; and everyone knows that the character of those principles (as distinct from "the general rules of law", that are more strict) is elastic, and their task, at the very most, is to create a "presumption" in favour of a certain meaning in the event of the language of the provision under consideration being ambiguous and capable of more than one interpretation (Craies, p. 8). In other words, those principles are designed only as guides to enable us to understand what is inferential, but they cannot override, or deflect us from, the clear and express language of the provision of a law. (ibid.) Thus, the drafting employed by the legislator in section 11, subsection (1) (in which he insisted on the presence of the voluntary element in "mens rea" by the side of the criminal act, with the reservation that this requirement does not apply to the provisions relating to negligent acts or omissions alone) is so clear and express as to make it hard to imagine that he intended to place a further restriction on the application of that "voluntary" requirement or to negative its importance as regards the case where the defence of madness is based on the extinguishing of the free will as a result of a disease of the mind. In other words, the "broadness" of the principle of volition emerging from what is said in the aforementioned subsection, on the one hand, and the exception introduced by the legislator to the application of that principle, on the other, suffice, when taken together, to explain away the non-reference to the terms "mental disease" and "insanity", either in section 11 itself or in its marginal note.

 

            The second "objection": In my opinion, the provision contained in the proviso to section 14 is no more than a warning that "medical madness" is one thing, whilst "legal madness" is quite another; that the tests laid down in that section were not intended to cover all the cases where the presence of any kind of mental disorder in the accused has been proved; and that it is possible for him to bear criminal responsibility even if he were thought, in the minds of doctors, to be a person who was at all relevant times "of unsound mind". But, the drafting of that provision does not oblige us to interpret it as laying down in absolute form that only if one of the tests stated in section 14 existed can there be room for relieving from punishment the person labouring under a disease of the mind. Had the legislator also included, for example, the 'volitional test', in that said section, the addition of the above mentioned provision would still not be superfluous, as Stephen's wording shows (see his book, "History of the Criminal Law", etc., Vol. 2; at p. 149). The reason is that here we are in a province the limits of which are far from clear - the field of "mental abnormality" - and the question whether the mental disorders afflicting a particular accused have reached a degree justifying the removal from him of criminal responsibility, is likely, as in all cases where the question of responsibility is one of degree, to arouse differences of opinion and to involve conclusions that are not agreed upon (see the observations of the Royal Commission at p. 100 of the Report, section 285). For that reason, the legislator came to warn us that a disease of the mind alone is not sufficient to produce an acquittal if none of the tests set out in the first part of section 14 is present in the accused. But those words of warning ought not to be regarded as designed to negative the value of the aforesaid volitional test, that, is to say, that one must not deduce from them an intention to impose criminal liability on a person whose mental disorders have brought a loss of control over the will-power. True it is that that last test is not mentioned together with the other two set out in the body of the provision in question, but this phenomenon may be explained thus, that in the first part of section 14, the legislator concentrated our attention only on the "cognitive" tests, whereas he included the volitional test in the provisions of another section - in the provisions of section 11(1). Hence what is written in the proviso to section 14 cannot make any difference either way as regards the question of the exhaustive nature of the tests laid down in the first part.

 

            The third "objection" : I have not the faintest doubt that when he enacted the provision in section 54, subsection (1), of the Criminal Procedure Ordinance, the legislator's mind was directed only to the tests that he had provided earlier in section 14 of the other Ordinance. Nevertheless, I am of the opinion, that that provision alone, having regard to the fact that it deals only with the form of verdict to be given in a case of insanity, cannot narrow the area of application of the provision found in the said section 11(1) and requiring that the criminal action be accompanied by free volition. For if that is not so, then you are in effect compelling a construction - by means of a provision having a purely procedural import which cuts down the scope of a provision having a substantive import of real importance - and that cannot be so. I should equally have reached the conclusion even if section 54(1) had not in the meantime been repealed (see section 31, subsection (3), of the Treatment of Mentally Sick Persons Law, 1955).

 

            Thus, weighed against each of the three "objections" dealt with, and even against their "combined effect", is the approach that demands, first, that we should repel with distaste the idea of punishing a man whose act derives solely from his madness, and, secondly, that we should regard the rule on this question as being part and parcel of the central theme underlying the whole of the criminal law both here and in England, namely, "mens rea", with all the elements contained therein, including the "voluntary" element. From this point of view, the observations of my colleague, Silberg J., in the Sepal appeal (4) are directly in point in our case: "Before us.... lies a question of method and attitude and not [just] a question of meaning and interpretation" (p. 411). So, indeed, decisive for me are the method and the attitude, according to which punishment is for those who, when they committed the criminal act, were healthy in spirit, a concept entailing volitional capacity, too, and not only rational and intellectual capacity. Any other approach implies the limiting of the rule and its confines to the area of operation of two tests, narrow in outlook and strict in character, as Lord Bramwell frankly admitted, when he said:

           

"The present law lays down such a definition of madness, that nobody is hardly ever mad enough to be with in it....."

 

            Accordingly, when in our times, the local legislator has left us, in section 11(1), an opening wide enough to enable us to escape from the narrow path, let us make use of that opening, and move on to the broad highway.

           

            Accordingly I can summarize the rule in this connection as follows:

           

            If it has been proved that -

           

            (l) at the time of the act, the accused was incapable of reventing the conduct with which he is charged;

           

            (2) as a consequence of being deprived of his will-power or its weakening to a considerable extent;

           

            (3) by reason of the disease of the mind under which he as labouring at the time; then he will not be regarded as punishable and will be absolved from criminal liability.

           

            Since I decided above that, from the point of view of the facts of the case, all these elements were present in the appellant in this case, the result is that he is absolved from criminal liability both as regards manslaughter, of which he was convicted, and as regards murder, of which we were asked to convict him by counsel for the respondent. We are thereby relieved of the necessity of going into the merits of the cross-appeal, the foundation for which has in any case collapsed.

           

            It remains for me to deal with a short procedural point concerning the form of the verdict which we must return, as well as the "manner of treatment" which we must settle. As I have already mentioned, on July 6, 1955 the Treatment of Mentally Sick Persons Law, 1955, was published (Statute Book, No. 187), in which the legislature, in section 31, subsection (3), repealed section 54 of the Criminal Procedure (Trial upon Information) Ordinance, and replaced it with the provisions of section 6 of the amending Law. This change, therefore, came after counsel for the parties had concluded their submissions before us. Section 6, subsection (b), of the new Law reads as follows :

           

"Where an accused person is brought to trial, and the Court finds that he has done the criminal act with which he is charged, but decides. .... that by reason of his having been ill at the time of committing that act he is not liable to punishment, and that he is still ill, the Court shall order that he be admitted to a hospital."

           

            But for this alteration in the Law, we might well have been involved in a certain procedural complication, on account of the form of the verdict "guilty but insane" being dependent on the conditions stated in the now-repealed section 54(1), and on those alone. Then, the question would have arisen, what form indeed should the verdict take in a case such as the one before us. Admittedly, it has already been noted above that that difficulty could not have affected the actual question of criminal liability. So, the said language of the provision of the new Law relieves us of the task of solving that problem, though only on the assumption that we are directed to apply that new provision in our case. I am of opinion that we are in fact bound to do so.

           

            As for the form of the verdict "guilty but insane", the explanatory remarks of Lord Reading in the case of Felstead (2), as we saw above, made it plain that the meaning of that phrase is that the accused is entirely absolved of criminal responsibility, that is, in the language of the said section 6(b), "he is not liable to punishment". From that point of view, therefore, the Israel legislator has produced nothing new by this amendment. For all that, it is well that it repealed the former phrase, for it was illogical and confusing and originated in England by pure chance.

           

            As for the "manner of treatment" that the Court ought to determine for the accused whose plea concerning insanity has been accepted, the legislator has made a fundamental alteration in its amendment, seeing that from now on, the court is bound to order the accused's committal to a mental hospital, if it has found that he is still suffering from a mental disease, whereas under the repealed provision it had no alternative, but to confine itself to the giving of an order for the accused's detention for such period as the Minister of Justice deems fit. But that revising or amending provision has no punitive content whatever, but rather is designed to secure for the accused who is of unsound mind the treatment he needs, on the one hand, and, on the other, for the public the protection to which it is entitled.

 

That being so, my opinion is that we must act in accordance with what is set out in section 6, subsection (b), of the new Law.

 In the light of the above, I propose that the following order be made:

           

            (a) The appeal is allowed and the cross-appeal dismissed:

           

            (b) The conviction and sentence are quashed:

           

            (c) The appellant is not punishable, by reason of his having laboured under a disease of the mind at the time of the act;

           

            (d) The appellant shall be committed to a "hospital" within the meaning of the Treatment of Mentally Sick Persons Law, 1955, unless it is submitted that after the conclusion of counsel's argument, the appellant's condition changed for the better. In that event, the case shall be returned to the Haifa District Court with a direction to act in accordance with section 6, subsection (d), of the said Law for the purpose of determining whether an order for hospitalisation should be made under that section.

           

SILBERG J. I have read with great care and with the greatest inte­rest the profound and brilliant judgment of my learned colleague, Agranat J.

 

            I fully concur in my learned colleague's attitude towards the question of irresistible impulse de lege ferenda, but to my infinite regret I am unable to agree with his view as to the lex lata of the State.

           

2. My reasons are as follows.

 

            Those who expect to see in the law in general, and in criminal law in particular, a proper reflection and faithful image of the scientific achievements and moral outlook of our generation, will agree that, since the M'Naghten Rules, as defined in the middle of the l9th century, do not correspond with the experience of medical science of today, it is desirable to "improve" and adapt them whether by redrafting or by supplementing the language, to the standard of our modern outlook. Since then, several barriers have fallen and several false notions have been dispelled. The organs of the body are not divided into separate parts as the scholars of the old school thought, and the supposed division between reason and will, the thought and the deed, has also disappeared. As men of scientific experience, we have become enlightened and we know that all the expressions of a man's personality emanate from a single source, and although from the functional point of view, special "cells", as it were, have been devised, the mutual dependency and compensatory influence between them break down all barriers and make them into one integral unit; so that if one of them is impaired, it will become apparent in the other two. The cognitive senses cannot be dimmed without engendering the dulling and blunting of the volitional and emotional systems, and those systems cannot be damaged without affecting the capacity and activity of the guiding intellect. For the mind, whether acting in sanity or in lunacy, is comprehensive and all-embracing and constiutes the whole of the traditional trio: the reason, the will and the emotions all together. So we, the men of this generation, are not prepared to regard the M'Naghten Rules as the ultimate revelation, and our moral feeling rebels at the idea that those two tests - the tests of "intellectual lunacy" - should alone determine the sanity or insanity of the offender, when we come to examine his criminal responsibility.

 

3. Those M'Naghten Rules are, in fact, far more dangerous here than they are in England itself. There in England, their motherland (as well as in the United States of America), this "devil" is not so frightening; for, "If Providence created the M'Naghten Rules, it created the jury as their antidote". No matter what direction the judge may give to the jury, whenever the accused really seems to them to be insane, they frequently find him "not guilty", even if his insanity could not be brought within the framework of the M'Naghten Rules. This not infrequent occurrence has already been noted, whether it be with satisfaction or in a mood of challenge, by the witnesses who gave evidence before the Royal Commission (see the Report of the Commission, pp. 82, 83, 102). That, no doubt, amounts to a certain evasion of the law, but the members of the jury appear to have acted, rightly or wrongly, on the assumption that "better a sin with a good motive than a virtue with a bad one" 1⁾ and so they presented the presiding judge with a fait accompli. (And he, no doubt sometimes says amen to that fait accompli.) Such, however, is not the case in our country, where the jury system does not exist. The judge is bound to apply the law, even if the law does not seem to him to be moral; he is obliged, as a result of what is written in section 14, to examine the accused's insanity according to the test in the M'Naghten Rules, and according to that test alone; and the result is that he is liable to send to the gallows (in offences the penalty for which is still death) or to sentence to imprisonment for life, a man who, in Shakespeare's language, as quoted by my learned colleague, did not himself commit the act, but his "enemy", his madness.

 

4. So it seems that the M'Naghten Rules, as adopted by the Palestinian legislator (with a slight change of phraseology that is of no practical importance) in section 14 of the Code, are liable to disturb our judge's peace of mind and to place him in a difficult moral dilemma. But may be here we might do some law-making of our own, extending the legislation, and applying the M'Naghten Rules, against the scientific background of today, to insanity that is not only of the intellect; or more accurately, treat the man with the irresistible impulse - if it is but founded on mental diseased - as one who does not know the nature of his act.

 

            I agree with the opinion of my learned colleague, that from the purely legal point of view, we are not free to follow this path of extension by interpretation. This would amount to a straining of the simple meaning of the said rules and an impermissible betrayal of the interpretation given them - except in a few instances - by the judges of England for over a century. It may very well be and I am ready to assume in fairness to the learned judges that had they foreseen in the stars that which was then hidden in the medical science of the future, they would have formulated those rules in wider terms, in a way that would also have embraced what we today describe by the name of "irresistible impulse". But they did not know of it, and this lack of knowledge resulted, where an offender's insanity was concerned, in placing the emphasis on the "absence of knowledge", that is to say, not on the "clouding of the understanding", a likely consequence of the diseased impairment of the volitional and emontional systems, but on actual lack of knowledge, a lack of knowledge on the part of the reason, the comprehension, the intellect, about the nature of the act itself or of the evil in it. We cannot therefore give the extended meaning to include irresistible impulses, which was not intended by the draftsmen of the Rules and which the Rules themselves do not allow for.

           

5. With that I reach the question whether or not it is possible to bring the rule of irresistible impulse within the shelter of our law by means of the provisions of section 11(1) of the Code. Again I would emphasize that I am not discussing this question de lege ferenda, but de lege lata. My colleague, it will be recalled, answered the question in the affirmative, and I frankly confess that it is not with a light heart, but only after serious consideration, that I have eventually decided to differ from his considered opinion. The following are my reasons for disagreeing:

 

(a) I doubt whether the words, "which occurs independently of the exercise of his will", that my colleague refers to, are capable of comprehending an act originating in that irresistible impulse. The exact wording of the section is as follows:

 

            11(1). "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

           

From the context, namely, the proximity of the words quoted to "an event which occurs by accident'', and the reference at the commencement of the section to the provisions relating to negligence, it appears that here it means an act or omission which "occurred" not through the will at all. For example: A man jumped from the roof and hit and injured another, and the man who made the jump did not see, nor could he, in the circumstances of the case, have foreseen, the presence of the victim there. Here there has been a harmful act not by the will of the man who jumped, and according to our assumption, he is not guilty of negligence either, and so he is entirely absolved from criminal responsibility. The proviso emphasised in the opening words of the section, too, will not apply, of course, to an impulsive urge that cannot be overcome, and even that is something of a key, however inadequate, to the meaning of the Code.

 

(b) Even if we had overcome, and "for the sake of convenience", I should have been prepared to overcome, the linguistic difficulty, we are still faced with a much more serious problem. It seems to me that if we give to the provisions of section 11(1) the interpretation suggested by my colleague, we shall find that the main point is completely missing here, namely, mention of the basic condition that the cause of the accused's "involuntary" act must be his mental disease. Now, in section 14, which propounds the M'Naghten Rules, the legislator makes it a condition that the reason for the accused's lack of knowledge, either as regards the act itself or as regards the 'evil" in it, shall be his mental disease - in the language of the code, "through any disease affecting his mind" - whereas here in section 11(1), that condition is not mentioned at all. Can an act done in consequence of an impulsive urge that cannot be overcome go unpunished even where the cause thereof is not specifically a disease of the mind or insanity? It is clear that it cannot, and even my colleague does not of course disagree with that. No-one, not even the most liberal-minded expert doctor, has ever claimed that a strong carnal lust or a perverted thirst for blood might also constitute a ground for acquittal in sexual offences or murder. So the question is, why did the legislator repress his foresight here and fail altogether to mention that essential condition?

 

            Let it not be said that this essential prior condition is so simple a matter and so much taken for granted that the legislator saw no reason for wasting words over it, for it is not so! In the appendix to the Report of the Royal Commission (pp. 407-413), several laws are quoted that recognise expressis verbis the rule of irresistible impulse, and in all of them (apart from the French code, in which this point is not quite so clear) the condition, so "taken for granted", is written down black on white. For example :

           

            "A person is not criminally responsible for an act done or an omission made by him - ............

II.        When such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist."

           

(Section 16 of the Tasmania Criminal Code)

 

"When the accused or the prisoner was at the time of the act in a state of madness which made him incapable of controlling his actions, he may not be sentenced to any punishment?"

 

(Article 71 of the Belgian Penal Code)

 

"Any person suffering from a mental disease... who, at the time of committing the act, is incapable of appreciating the unlawful nature of his act or of acting in accordance with this appreciation cannot be punished."

           

            (Article 10 of the Swiss Penal Code)

           

            The law prevailing in South Africa, as formulated by the experts that testified before the Royal Commission, is as follows:

           

"A person is not punishable for conduct which would in ordinary circumstances have been criminal if, at the time, through disease of the mind or mental defect -

           

            (a) ...............

           

(b) he was the subject of an irresistible impulse which prevented him from controlling such conduct."

           

            If our legislator had wanted to hide away the rule of irresistible impulse within the folds of section 11(1), it does not seem to me that he would have spared himself the task, but would have emphasised, in two or three words, the causal connection between the deed and the malady.

           

(c) Last of all - a more substantive consideration. It seems to me that from the point of view of the real content of the rule, also, section 11(1) ought not be regarded as its proper ''home". The rule of irresistible impulse is not made entirely of one pattern, and not all the protagonists of that theory mean the same thing. There are those who say, for example, that the urge does not have to be impulsive, or sudden, but that it suffices if, as the result of a disease of the mind, of course, the accused did what he did under the latent influence of "strange forces": false yearnings, hallucinations, delusions, that have succeeded little-by-little in paralysing his self-will. The British Medical Association, which apparently supported this view, formulated before the Royal Commission the "third limb" of the M'Naghten tests in these words: the accused will be absolved from punishment if, as the result of a disease of the mind, he was at the time of the act "incapable of preventing himself from committing the act" (Report, pp. 110-111). The Commission examined that formula in the light of the case of a paranoiac madman by the name of Ley, who plotted a deed of assassination over a long period of time "reasonably and intelligently", and when he was tried, it appeared that throughout that period, he had been living in a twilight world of hallucinations and fantasies; and the Commission reached the conclusion that that formula would have been wide enough to cover Ley's act, and would, had he put forward the plea, have saved him from the shadow of the gallows.

 

            "It seems to us reasonable to argue that the words 'incapable of preventing himself' should be construed so as to cover such states of mind; that they should be interpreted as meaning not merely that the accused was incapable of preventing himself if he had tried to do so, but that he was incapable of wishing or trying to prevent himself..: If each of Ley's acts is considered separately, it would be difficult to maintain that he could not have prevented himself from committing them. Yet if his course of conduct is looked at as a whole, it might well be argued that, as a result of his insanity, he was incapable of preventing himself from conceiving the murderous scheme, incapable of judging it by other than an insane scale of ethical values, and, in that sense, incapable of preventing himself from carrying it out." (My italics) (Ibid., p. 111.)

 

            With this very approach in mind, and in order that the revised M'Naghten Rules "should cover most of the cases where a defence of insanity ought to be admitted", the members of the Commission gave their approval to that formula and suggested it to Her Majesty (p. 276). If the English legislator gives his approval to that formula, too, a criminal of Ley's sort would be relieved of punishment. It is possible that he would not be acquitted even before an English court unless the judges of England also adopt the extended interpretation given to that formula by the Royal Commission. He would certainly not be acquitted if his judges were, for example, South African or Tasmanian judges, for their law indeed recognises lunacy that is not solely intellectual as a ground for acquittal, but, as we saw above, restricts it to an act committed through impulse, in the sense used in ordinary parlance, namely, a more or less sudden urge.

           

Thus we observe that even this modern rule is not of unequivocal content, and it leaves room for many distinctions, disagreements and doubts. A fortiori several times over if, as regards the law in this country, we try to read it into the provisions of section 11(1). Our legislator uses neither the word "impulse" nor the phrase "incapable of preventing himself", but employs a colourless, neutral formula: "an act which occurs independently of the exercise of his will". Not only does that formula not solve the problem of the paranoiac, Ley, but leaves us to grope in the dark as far as other kinds of strange conduct are concerned. Who will relieve us of the doubt as to the meaning of the word "occurs" - does it mean suddenly, or not necessarily so? And what exactly did the legislator mean when he spoke of "the exercise of his will"? Was he referring, for example, to that "spiritual lunatic" à la Hadfield (11), who regards himself as having been sent by Providence to remove out of the way a certain person (not necessarily a ruler or monarch) that is, according to his crazy notions, delaying the coming of the Redeemer, and who carries out the "commandment" coolly and after considerable planning. Such a person, I think, would be "qualified for insanity" according to the Royal Commission's test; he would certainly not be so according to the South African or Tasmanian test; but it is very doubtful -- the answer may be yes or no - whether he would fall within the compass of the formula of our law. It might be argued that his insanity is concentrated on one point only: his regarding his victim as one who is frustrating the happiness of the whole of humanity; but in the light of this false vision, his desire is quite "natural", almost "sane", and I do not know whether one could properly say here his will had not been exercised, within the sense of the said section.

           

            To sum up, the basis of section 11(1) is not broad enough to cover the rule of irresistible impulse, for it does not fit the articulation of the rule. The content of the section is not clear, its language is incomplete, and the consequence would be, not the solution of problems, but their increase. I also think - and I have already expressed my view above - that the M'Naghten Rules as they stand are out-of-date and must be extended by the addition of a test about "non-intellectual" lunacy, the volitional or emotional lunacy. But exactly how that extension is to be made, to what extent and on what terms - I am not ashamed to admit I do not know. Even the Royal Commission heard 160 witnesses before it defined the new, third test. I think it would be better, therefore, if we left that task, full of pitfalls, to the legislator and did not introduce the rule, in an incomplete form, into the framework of section 11(1) of the Code.

 

6. Now let us examine whether the appellant ought not to be regarded as unpunishable from the point of view of section 14 of the Code, namely, under the tests of the M'Naghten Rules themselves. A not-so-common thing in criminal jurisprudence occurred here: three doctors, great experts in the same fired, gave evidence before the court; the three of them unanimously expressed the opinion that at the time of the act, namely, at the moment of shooting of the deceased, the appellant was "in a state of trance", yet nevertheless, the three learned judges rejected that opinion and decided what they did. Now, these were the experts' words:

 

            "I imagine that (the appellant) had no intention of harming Shifman... for he was in a state of trance...When, in answer to a question by the court, I said that if a policeman had been standing in front of the accused, he would not have fired, I was referring to the start of the shooting, before he started firing at Luba, but afterwards, when he fired at Shifman, the presence of a policeman would not have helped - not even a regiment of policemen, for then he had already entered into his world of fantasy, into a state of 'amok'." (Dr. Vinik, on pp. 167, 168, 172, 173).

 

            "It seems likely, you see, that the patient (he is referring to the appellant) was acting under a clouding of the mind strong enough to become a state of trance, and in such a state, a man does not know what he is doing...It is difficult to determine when this state of trance began, but it must be presumed to have started after the second shot that he fired at Luba Kreiner... the moment he acted against Shifman, apparently he was not acting in full consciousness." (Dr Mengel, on pp. 210, 212).

 

            "I am most certainly of the same view, that at the time when he fired at the victim, he was in a state of trance ...as to the fact of the state of trance, there was no doubt in any of us... I know that Dr. Mengel, Dr. Meir, Dr. Vinik, Dr. Kulcher and myself dealt with the accused, and I do not think the accused could have misled all five of us ...The result of the first shot was like that which caused the bursting and collapse of his 'ego' which impelled him into the state of trance. We examined his behaviour and acts at the time of the incident and after it, and we reached the conclusion that it could not be otherwise than that with the first shot the accused entered into a state of trance... An action like that of the accused while in a state of trance negatives any possibility that the accused knew what he was doing, and it is clear that there can be no talk of his being able to distinguish between good and evil to any extent whatsoever." (Dr Feldman, on pp. 216, 217, 220, 221, 222).

           

            These are the words the doctors repeated in their evidence to the court, but the learned judges paid no heed to them, and, as stated, rejected the united opinion of all three experts. Certainly, on the ground of legal principle, there was nothing to prevent them from so doing. The court is not bound to accept the opinion of an expert or experts, even when there is no other, contrary opinion against it. But, was there also any justification for their refusal to accept it in the case before us? Let us not forget that we are dealing here with a difficult psychological question, descending to the very springs and bed-rock of an insane person's lunatic and torn soul, a question which the "common sense" of an ordinary person - and that includes a judge - does not have the requisite instruments for investigating properly. Can common sense expect to repress and contain within its down domain the tortuous struggles of lunacy and madness, and does it constitute the right measure and sole standard by which to gauge the diagnosis that the doctors have established? Obviously not! We may well imagine an instance where the judge would be absolutely justified in rejecting the doctors' version, even in a problem as difficult and complex as this, and even if the greatest experts in the world gave evidence on it. I am referring to the case where the judge's question and the expert's reply are not on the same level: both of them are indeed employing the language, "responsibility", but the one (the judge) is thinking of legal responsibility, whilst the other (the doctor) is thinking of medical responsibility, and as a non-lawyer, he does not appreciate that there exists a difference and a distinction between them. In such a case, which is by no means a rare one, the judge rejects the doctor's opinion not as incorrect, but as irrelevant. But such was not the position in the present case. Here the question was confined to one point only: whether the accused, who is undoubtedly a dangerous paranoiac, had at the time of the act entered into a state of trance as a consequence of that disease or not. If in fact the doctors were right in their affirmative reply to that question, then it is clear and beyond doubt that he "did not know the nature of his act" in the strictest, most "M'Naghtenist" sense of the expression. It follows that the learned judges rejected the doctors' version, not as irrelevant, but as incorrect. The question is, were the learned judges entitled to establish that negative medical diagnosis in relation to the present appellant?

 

            I am bound to remark that the learned judges did not diverge from that triple evidence lightly, just like that - in an off-handed sort of way. They examined it from several angles and enumerated four grounds for rejecting it. We here, however, are relieved of the necessity of examining all those grounds, since the judges themselves attacked decisive importance only to the fourth and last ground, which is based on the appellant's statements to the police.

           

            "The matters we have enumerated hitherto", the judgment lays down, "certainly shakes our belief in the version of the complete trance at the time when the shots were fired at Shifman, but we would not have rejected that version entirely on those grounds alone. We must, however, weigh in the balance the accused's statements to the police, and they, in our opinion, settle the matter with complete certainty."

           

            Continuing, the learned judges raise a number of questions, of which the cardinal point in all of them amounts to this: if in fact the appellant had entered into a state of trance and forgetfulness at that moment, how is it that in his statements to the police, he remembered several facts? But further on, the learned judges themselves settle - with some difficulty or without any difficulty - the bulk of those queries, until eventually there remain but two of them that, according to their opinion, completely destroy the trance version. They write:

           

"The trance version, in our view, is completely destroyed by the very things the accused said in his second statement to Assistant District Inspector Movshovits, about the attitude of the deceased Shifman towards him: that Shifman was causing trouble for him and he regarded him as his enemy. We see no way of getting round those statements, for they were spoken perfectly logically, though with the logic of the accused while under the influence of his false notions. And if there remains any other spark of doubt, then that, too, disappears in the face of the accused's remarks about Besser, whom he liked 'just as I liked the late Shifman and he stood in front of me and I didn't do anything to him either'... One question stands out here that has no answer: if the accused was acting in a state of trance, how did he know that Besser was standing in front of him? How is it possible to argue that the accused did not know what he was doing at that moment?..."

 

            With all due honour and respect to the learned judges, it does not seem to me that those two queries are of sufficient force to rebut and destroy the experts' version. As for the logic in the manner in which the appellant addressed his remarks to Assistant District Inspector Movshovits, I fail to see how that detail can disprove retroactively the state of trance he was in thirty hours beforehand. A propos of that, a lack of logic is by no means one of the distinguishing signs of a paranoiac. On the contrary, in certain cases, his insanity expresses itself, if one may say so, specifically in the "hypertrophy of logic", in an excess of "intellectual" picking at and raking up of things that a normal person regards as having no substance.

           

            As for the second query, as to how he, while under the influence of dreams and trances, could remember the fact that Besser stood opposite him during those fatal minutes, that too, cannot, in my view, swing the scales against the appellant. For as the experts testified, the trance does not completely and utterly erase the memory of what was done at that moment, and the man can remember afterwards certain details or parts.

           

"Forgetfulness is not absolute in the case of a patient like this, and he can remember certain parts and individual details of what he did." (Dr. Vinik, p. 151).

           

"After awakening from that state (of trance). he can remember individual details or individual parts" (Dr. Mengel, p. 211).

 

            Those two experts' views touching the possibility of such partial recollection was not disproved, and in my opinion, there was no foundation for denying or even doubting the correctness of that scientific finding. That being so, the second query raised by the learned judges is automatically settled, and it follows - at least in my opinion - that there is not, nor ever was, any decisive consideration for rejecting the trance version.

           

7. The fact that the court below did not, in point of fact, believe in the trance version, cannot prevent us as a court of appeal from accepting it. No question of the witness' demeanour at the time of giving his evidence arises here. The question is a legal, logical one; all the same thought processes and considerations designed to determine a matter one way or the other are laid before us, just as before the court below, so that there is no room here for relying on the well-known rule, that the court of appeal will not be inclined to upset findings of fact made by the court that tried the matter. Authority for that, if authority is needed, may be found in the case of Jefferson (6).

 

8. The conclusions I have reached, therefore, are that the defence has succeeded in proving, to the extent of the proof required of it in a question of this kind, that when he fired at the deceased, the accused was, in consequence of his mental disease, "incapable of understanding what he was doing", within the meaning of section 14 of the Code, and is accordingly not punishable, as stated in the opening words of that section.

 

As for the form of order, I would adopt all that was said by my colleague at the close of his judgment.

           

GOITEIN J.: Having read the judgments of my colleagues Agranat and Silberg JJ., I feel like a dwarf standing between two giants; but with all due respect to my learned colleagues, I have difficulty in agreeing with the conclusions of either of them. On the one hand, I incline towards my colleague Agranat J.'s version, that the circumstances of the present case and the facts thereof do not enable us to apply the provisions of section 14 of the Criminal Code Ordinance. On the other hand, I differ from his conclusion, which holds that we can find refuge in this case in the provisions of section 11 of the Ordinance. On that point, I would adopt the view of my learned colleague, Silberg J. and I, too, am of opinion that section 11 is intended to deal with an entirely different set of facts from that which has been disclosed to us in this case; and unless we are prepared to twist the meanings of the text, we cannot fit into section 11 the facts and findings established by the court below. On this point, I agree with the observations of Silberg J., in their entirety, and I do not have to add very much to what he has written. At the same time, I cannot accept another conclusion arrived at by Silberg J. This court is in no position to differ from the court of first instance regarding the facts and findings of the latter and that court is free to make such decisions on the facts as it thinks proper and attach such value and weight to the evidence of experts and other witnesses as it considers right.

 

2. After reading the judgment of Agranat J. I can see the desirability of the Israel legislator seriously reconsidering the question of the criminal responsibility of persons who are not of sound mind at the time of committing a criminal act. The doctrine of "irresistible impulse" may or may not be one that Israel judges ought to apply, but I have already expressed my opinion in Attorney-General v. Segal (3), that the merits or lack of them in the introduction of a certain doctrine into Israel law is not a matter for the judiciary, but a subject to be examined and decided upon by the Knesset1⁾ alone. Such a grave and difficult problem ought not, in my opinion, to be settled by the judge. It is not for him to wear the cloak of the legislator - and, sitting on the bench of the lawmaker, to decide what is desirable for the public on the one hand and, on the other, for the prisoner standing his trial. The court would not be carrying out the duty imposed upon it if it were to follow such a course.

 

3. The problem of "irresistible impulse" has for some time been disturbing the thinking of the best lawyers in the most advanced countries, and it has met with a variety of answers. Many of those answers are to be found in the judgments delivered abroad and in the writings of legal or medical experts throughout the world. The problem requires a thorough-going investigation and clarification and the Knesset is the body qualified and capable of taking the steps necessary for the enactment of a law based on the conclusions and achievements of the sciences of medicine and law. I am very far from being an expert on these complex investigations into the mind of man, and I would consider it highly improper to usurp the place of the Knesset and myself lay down the law.

 

4. It is obvious to me that judges are not automata and they are not bound to follow blindly the furrow ploughed by previous generations. They must take into account the achievements of modern science and its progress just so long as recognition of the changes that have come about in the scientific conceptions of mankind is compatible with the interpretation of the law which alone binds the court. But whenever we cannot accept the findings of science without disregarding entirely the provisions of the law, we must not allow ourselves to be beguiled into giving decisions that undermine the legal edifice. We are subject to the law as it is and not as we would wish to see it.

 

5. Section 14 of the Criminal Code Ordinance originated, as is wellknown, in the M'Naghten Rules that were formulated in England more than a hundred years ago. The judges who were asked at that time to give their opinion on the question of insanity from the legal point of view, complained at the time at having to reply to abstract legal questions, and openly declared their dislike at being asked to answer questions not related to a concrete case and without hearing the parties. One of the judges expressed his fear even then lest the M'Naghten Rules become thereafter a source of inconvenience to the general public, because instead of being rules constituting part of a decision given in a particular case - a decision that the judges had arrived at after hearing the arguments and counter-arguments of the parties - they were no more than airy expressions of opinion, detached from and unconnected with any concrete instance. Since then, the judges' replies, which as stated, came to be called the "M'Naghten Rules", have been subjected to the severe criticism of judges and lawyers. This criticism became the sharper with the discoveries of scientific research into the mind that sprang up in the school of Sigmund Freud, and which advanced and spread during his lifetime and after his death. At the same time, we must not overlook a vital fact which invests the M'Naghten Rules in Israel with a status very different from that of the same Rules in other countries. Section 14 of our Criminal Code Ordinance was not drafted in the l9th century, but in 1936. At that time, the voices of criticism that had been directed at the M'Naghten Rules had already been heard throughout the world. Nevertheless, those principles were included in the code of criminal law that was published in that year, and ever since then the Israel legislature has found either no need or no opportunity to introduce any alteration into the provisions of the section. The Israel legislature has hitherto shown that it is quite wide-awake and knows what the modern world needs in its treatment of the problems of criminal law. The revolutionary change in the law by which the death penalty for murder was repealed in Israel, is a particular case in point. Doubtless the defects in the M'Naghten Rules and their unsuitability to the scientific discoveries of our time are well known to the Israel legislature, and I feel sure that it will seize a proper opportunity of going deeply into the law and of finding a satisfactory solution to this problem - a solution that will reflect scientific notions on the one hand, and will answer the needs of the public on the other. Had the Israel legislature been anxious to throw over the M'Naghten Rules, it could of course have done so when enacting the Military Justice Law, 1955, which is a code of criminal law applying to persons subject to military law. It can hardly be regarded as accidental that the legislature preferred to retain, even as regards soldiers, the provisions of section 14 by referring us, in all that concerns that section - like the remaining sections relating to the fundamental principles of criminal responsibility - to the provisions of the general criminal code. As late as in 1955, therefore, we see that the legislature wished to retain section 14 as it stands, and as long as it considers that the provisions of that section should be applied and does not find it necessary to alter them, we have no alternative but to apply them.

 

6. I do not have to take up much time in explaining why the provisions of section 14 cannot be applied to the present case. That task has already been expertly and skillfully carried out by my learned colleague, Agranat J. I have no quarrel with the conclusions at which he arrived in that part of his judgment. But our paths divide when we come to interpret section 11 of the Criminal Code Ordinance. Section 11 deals with the question how far intention or motive can influence the measure of criminal responsibility. That is made clear by the headnote found in the margin to the section: "Intention; motive". We cannot, in my view, separate the main part of section 11(1) from its proviso. The main part speaks of acts or omissions arising out of negligence, whilst the proviso deals with acts that occurred not by the will of those who performed them or which occurred as the result of accident, that is to say, acts and events that occurred in a manner independent of the will of the doer of the acts. That and that alone is the scope of section 11 and the legislature had no intention whatsoever of settling, by means of that section, the question of the criminal responsibility of persons who are not of sound mind and whose will-power is impaired as the result of their mental disorder. If the legislator had had the intention attributed to him by my colleague Agranat J., he would not have refrained from giving clear expression to it in a special section, or at least in a special subsection. At all events, he would not have slurred over such a provision leaving the real meaning to be read between the lines, when he came to set out the rules of criminal responsibility for acts done negligently or accidentally and not by the will of those performing them. Not only that: this problem should have come up for solution after section 13 (the section providing that every person is presumed to be of sound mind so long as the contrary is not proved) the place singled out by the legislator for dealing with the questions connected with soundness and unsoundness of mind from the legal point of view. I do not imagine that any legislator in drafting the sections in question would jump from one subject to another, and it seems to me that the first place in the Ordinance where the legislator adverts to the question of the effect of a person's soundness of mind as a factor in his criminal responsibility is section 13, and in no previous section whatsoever. Only after the legislator has laid the foundation for the presumption in section 13 concerning everyone's soundness of mind, does he pass on to deal with persons whose soundness of mind is impaired by reason of insanity or drunkenness, which is also regarded by the legislator as a special form of insanity.

 

            I do not propose to do more than to add these reasons to the grounds that my colleague, Silberg J., has enumerated in his judgment, and I would only add that, to my mind, any attempt purporting to extend the application of section 14 by means of words found in section 11(1) is a little too daring, and one which finds no support in the language or import of the law.

           

            The Palestinian legislator undoubtedly knew in 1936 of the existence of the problem of "irresistible impulse", and if indeed it was his intention to extend the scope of section 11 in order that it might include provisions for settling that problem, he would certainly have found appropriate phrases, and would have made use of words more suitable than the words, "independently of the exercise of his will", found in section 11(1).

 

7. The real intention of section 11 can be best appreciated after an examination of the basic literature dealing with the principles of criminal law. We find a striking precis of this point in Kenny's book, "Outlines of Criminal Law" (sixteenth edition, edited by Turner). On p. 23, the author deals in detail with the question of "voluntary conduct". By way of demonstration, the author quotes the example of B holding A's hand, and with his superior strength, causing A to wound C with a knife which is in A's hand. The author adds that in centuries past, A was absolved from criminal liability an the strength of the argument that the act was not that of A, whereas today we arrive at the same conclusion by recognising that A's act was not done by A's will and was not accompanied by any mental intention.

 

            In that paragraph, Kenny employs the term "intention" - that is the "intention" appearing in the margin of section 11 of our Ordinance. The author adds, at the same place, that a person can make use of precisely the same argument in his defence, if he is overwhelmed by an attack of epilepsy at the time when he does the act of which he is charged. The same applies to a somnambulist or to one who is in such a state of intoxication, that he does not at all know what he is doing. According to Kenny, we must examine in each of these cases what was the intellectual state of the accused at the time of the act, and in the event of the latter proving that his conduct at that moment was not conduct originating in his will, he will not be responsible for his acts and their consequences. Kenny elucidates his meaning by giving further examples, and he mentions, inter alia, the case where a person kills another neither by his fault nor by his will, the case of doing an act while walking in one's sleep and "some cases of insanity or intoxication". These last words, italicised by me, amount to an apparent corroboration of Agranat J's observations, and they seem at first sight to reinforce the construction accorded by him to section 11. But a close examination of the authorities mentioned there leads us to a different conclusion. I am referring to the following two English judgments : R. v. Hay (13); R. v. Fryer (14).

           

            After reading those judgments I am satisfied that they do not justify the conclusion that the author deduces from them. In R. v. Hay (13), Darling J. said in his direction to the jury no more than this, that:

           

            "if they (the jury) believed the evidence of Dr. Dyer (the prison medical officer) they would be justified in finding the prisoner guilty of the act charged, but insane at the time of committing it so as not to be responsible according to law" (p. 269).

           

            We should add that the doctor replied to the questions he was asked during cross-examination, by saying that in his opinion, the accused knew at the time of the act that he was firing a revolver and that his act fell within the class of prohibited acts, but that owing to the disease of the mind that was affecting him, he was incapable of overcoming the homicidal impulse which had taken possession of him.

           

            However, whosoever takes the trouble to read the remarks of the doctor in his examination-in-chief, will discover that in the opinion of Dr. Dyer, the accused was of unsound mind both at the time of the act and at the time of the trial. Accordingly it is difficult, if not impossible, to find in that judgment corroboration for the view that the judge or the doctor were talking in that case about an act that was not dependent on the will of the doer, as distinct from an act committed through insanity.

           

8. In the second judgment, R. v. Fryer (14), Bray J., in his direction to the jury, declared that no real doubt had arisen on the question whether or not the accused had committed the criminal act with which he had been charged. Continuing his summing-up, the judge asked the jury to consider the accused's frame of mind at the time of doing the act. He adds:

 

            "What does 'insane' mean? The definition is based, according to our law, on this - that the accused laboured under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing Then there is an alternative - or if he did know the nature and quality of the act he was doing, he did not know that he was doing what was wrong.

 

            That is the recognised law on the subject; but I am bound to say it does not seem to me to completely state the law as it now is, and for the purpose of today I am going to direct you in the way indicated by a very learned judge, Fitzjames Stephen, and follow his direction – that, if it is shown that he is in such a state of mental disease or natural mental infirmity as to deprive him of the capacity to control his actions, I think you ought to find him what the law calls him - 'insane', because it seems to me, if there is such a disease of the mind, not caused by any accident, but an actual disease of the mind,such as to deprive him of the capacity of controlling his actions, in my opinion a jury should find him insane, if that is shown to have existed at the time of doing the act" (p. 405).

 

            Let us now examine the evidence on which the judge relied when he directed the jury in the way he did. According to one witness, the accused knew that his act fell within the class of a prohibited act, but did not completely understand what he was doing. In the witness's opinion, the accused did not at all appreciate the gravity of his act. Another witness said that, in his opinion, the accused did not understand the nature and quality of his act, and did not know that his act was wrong. This latter evidence clearly brought the accused four-square within the limits set up by the M'Naghten Rules.

           

9. The common denominator in these two cases was the defendants' lack of knowledge as to the nature of their act. Even if it be said that there is nothing to support such a conclusion, then the fact cannot be overlooked that here, we are considering not judgments, but directions to the jury. In any case, I do not think that it is possible to discover the slightest hint that the doctrine of the involuntary act of the accused was even being considered in these cases.

 

10. A recent English judgment dealing extensively with this problem and which is also mentioned in Agranat J's judgment, is Reg. v. Charlson (23). There questions arose which have much in common with the questions with which we have had to deal in this case. In that case, too, light is thrown on the legal questions involved in Barry J's directions to the jury. The accused, Charlson, who, until the day of the act, had acted towards his son as a kindly father, picked him up, took him to the window, struck his head with a mallet and threw him out of the window. The boy remained alive, and the father was charged with three offences, namely:

 

            a. causing grievous bodily harm to his son with intent to murder;

           

            b. causing grievous bodily harm with intent to cause harm ;

           

            c. unlawfully and maliciously inflicting grievous bodily harm without any specific allegation as to his intention.

           

            In the course of trial, the accused did not plead that he was of unsound mind at the time of the act, but said that at that moment, he was acting under the clouding of the faculties that deprived him of any control over his actions. The accused was acquitted on all counts. It was proved at the trial that his mother had died of cerebral haemorrhage, whilst his mother's sister had suffered from a cerebral tumour which had later caused her death, and his sister had died of meningitis. There was, therefore, some ground for assuming that the accused also suffered from some similar disease, although it was not proved that at the time of the act, the accused had been suffering from any such disease. On the other hand, it was proved that shortly after the act, the accused spoke quietly to the policeman that appeared on the spot, and said : "My God, tell me what I have done". A few moments later, he added: "It's something dreadful, isn't it; it's Peter, isn't it ?" (Peter was his son's name.) When he was brought before a second policeman for questioning, he said : "I have done something dreadful to Peter", and when he was told what had happened, he mumbled to himself: "Why did I do it?" When he was asked to relate what had happened to him, he replied: "We were in the back room... I remember hitting Peter, but I don't know why I did it. I will tell you what I remember."

           

            In his direction to the jury, Barry J. says inter alia:

           

"Therefore, in considering this third charge you have to ask yourselves whether the accused knowingly struck his son, or whether he was acting as an automaton without any knowledge or control over his acts. If you think that he was in a condition similar to that of a person in an epileptic fit, who does not know what he is doing at all then the elements of malice and unlawfulness would not have been established. If you are left in doubt about the matter, and you think that he may well have been acting as an automaton without any real knowledge of what he was doing, then the proper verdict would be 'not guilty', even on the third and least serious of these alternative charges" (p. 862).

 

            In this instance, too, the learned judge employs the language of the M'Naghten Rules and investigates the accused's mind or consciousness, ignoring the element of will entirely.

           

            As for the possibility that the accused was also suffering, like the rest of his family, from the cerebral tumour, the judge gives his opinion to the jury in these words:

           

            "If a man or woman is suffering from a cerebral tumour, says the doctor, he or she is liable to an outburst of impulsive violence, quite motiveless, and over which the patient has no control at all. The doctor does not state positively that this is the inference to be drawn from these events, but he says that it may be; and if a tumour does in fact exist, then the conduct of the accused would be wholly consistent with that of someone suffering from such a disease" (p. 864).

 

            After completing those observations, the judge goes back and restates the importance of the intellectual element - as distinct from the volitional element - in the investigation of this question.

           

11. So we see that, notwithstanding that the distinction between the intellectual element and the volitional element in a man's acts is well known in England also, an English court refrained, in a case where the facts were consistent with the facts in the present case, from applying the principle underlying section 11, but instead applied the principle that finds its expression in our law in section 14 of the Ordinance.

 

            It is not merely by suggestion alone that the judges in England have decided that the decisive factor is the intellectual state of the accused and not the volitional element in his actions. They have done so in clear and express language.

           

            In the case of Charles Aughet (26), Lawrence J. states, at p. 106:

 

            "Under Article 71 of the Penal Code (the reference is to the Belgian Penal Code, the accused being a Belgian soldier) it was open to him to set up as a defence that he was compelled to commit the acts... by a force which he was unable to resist. He did set up this defence, which is not one known to English law, and the Court held it to be proved and acquitted him."

 

In the case of Kopsch (17), Hewart L.C.J. speaks about:

 

            "the fantastic theory of uncontrollable impulse which, if it were to become part of our criminal law, would be merely subversive. It is not yet part of the criminal law, and it is to be hoped that the time is far distant when it will be made so" (ibid.,at pp. 51-52).

 

And in the case of Thomas (27), Darling J. states categorically:

 

            "Impulsive insanity is the last refuge of a hopeless defense" (ibid., at p. 37).

           

12. Turning now to Silberg J's judgment, which differs from the findings of fact made by the court below, and, in this way, enabling the learned judge to fit the present case into the framework of section 14, I see great difficulties in his path and with all regret I cannot adopt his conclusion.

 

            It has been proved that the appellant is suffering from the disease of paranoia. It has also been proved that a person suffering from the disease of paranoia is capable at the same time of understanding perfectly well the nature of his acts, and to know that a certain act falls within the class of prohibited acts. Those facts do not bring the accused within the defence afforded him by section 14. The burden of proof in all that concerns the accused's being of unsound mind continues, therefore, to be on the shoulders of the appellant and in order to succeed in his defence, the proof of paranoia alone will not suffice. The experts that gave evidence in the court below were unanimous in their opinion that the accused was suffering at the time of the act not only from paranoia, but also from a trance. It seems to me that it cannot be inferred from their evidence that every person suffering from paranoia must of necessity also suffer from trances. At all events, it follows that, in the opinion of the doctors, the present appellant was suffering from a trance at the time of the act. It is clear that it is the duty of a judge who hears the evidence, to weigh it up and on the evidence to decide whether or not there existed a trance at the time of the act, and if the judges found that the opinions of the expert witnesses on this point were of a theoretical nature and no more, and that the evidence did not enable them to reach a definite finding, then the judges of the court below were at liberty to decide what they did, and I do not see that we can differ on this point, from the decision at which the learned judges in the court below arrived.

           

            This question is in England left to the determination of the jury, because it is a question of fact. We, too, are obliged to leave the decision on this point in the hands of the judges who heard the evidence of the witnesses. I would only add that, from the evidence presented to the judges below (aside from the evidence of the experts), it is hard to see that the appellant was in a state of trance, and if the judges of the District Court reached the conclusion that they did, I do not see how I can overrule their decision and hold that that finding of theirs is erroneous. Accordingy, and with all due respect to my learned colleague, Silberg J., I see no reason for allowing the present appeal. It is true that it is the act of a paranoiac that caused the death of the victim. But it is equally true that not every act of a paranoiac is considered by our legislator to be the act of a person of unsound mind. On that ground and in accordance with the law as it exists in the State at the moment (as distinct from the law that may appear to be desirable), the accused is guilty of causing the death of the victim.

           

            13. Although I cannot absolve the appellant from liability for his deed, either by reliance on section 11 of the Criminal Code Ordinance, as my colleague, Agranat J., suggests, or by reliance on the provisions of section 14 of the same Ordinance, as my colleague, Silberg J. suggests, I think that the final result at which I arrive will not in practice be different from the result at which my two colleagues have arrived. I do not see how it is possible to apply to the present case the provisions of the Treatment of Mentally Sick Persons Law, 1955; but it seems to me that it is possible to ensure the appellant's committal to a suitable hospital and his reception there on the basis of the Prison Ordinance, 1946. I assume that when it becomes apparent to the prison authorities that a certain prisoner has turned insane, the Minister of Police will not be deterred from using the power given him according to section 62 of that Ordinance to order the transfer of such a prisoner to an institution where he will obtain the treatment he needs and which he ought to receive.

 

14. Now for the cross-appeal on behalf of the Attorney-General, which relates to that part of the judgment of the court below in which it was held that the prosecution had not proved in this case the existence of the element of which section 216(c) of the Criminal Code Ordinance speaks. The final section of the District Court's judgment is devoted to this question, and the conclusions of the court are:

 

            "We are of the opinion that the prosecution has not proved that the killing was premeditated, and therefore the accused is not guilty of premeditated murder, but of manslaughter."

           

            It follows from the judgment of the court below that, if A takes up a revolver in order to shoot and kill B, and in fact kills him, then the element mentioned in section 216(c) of the Ordinance is proved. On the other hand, if that same A fires his revolver at B but against his will hits C, A cannot be convicted of murder but only of manslaughter. Prima facie, that result is exceedingly strange. But the words employed by the legislator are perfectly plain, and although his intention may have differed from the one to be gathered from the language of the section, we are bound to examine his intention in the light of the wording that the legislator has employed in the section itself. The use of the word "such" four times in one subsection of the Code leads me to conclude that the construction placed upon that subsection by the District Court is indeed the correct one. This is the language of section 216 (c):

           

            "For the purpose of section 214 of this Code a person is deemed to have killed with premeditation when: -

           

(c) he has killed such person after having prepared himself to kill such person or any member of the family or race to which such person belongs, or after having prepared the instrument, if any, with which such person was killed."

 

            It will be noted that if Reuven intended to kill Mustapha or some other member of Mustapha's family, then Reuven will be convicted of murder if he caused the death of Mustapha or another member of his family. The same applies if Reuven intends to kill Mustapha or any other Moslem, and no distinction will be drawn if in fact Mustapha or any other Moslem is killed. In both cases alike, Reuven will be convicted of murder. If, on the other hand, Reuven intended to kill Mustapha but in fact hit Anastas, who is of the Christian faith and who at the time of the act was standing near to Mustapha, the condition required by section 216(c) will not have been satisfied, and Reuven will be convicted of manslaughter only. As stated above, that is because of the absence of the element of preparation in Reuven's act, as required according to section 216(c). I would only add that it is quite impossible to have regard to section 216(c), while at the same time ignoring section 216(a). Section 216(a) as is known, speaks of the killer's resolve "to kill such a person". It follows, therefore, that "such person" mentioned in section 216(c) is identical with "such person" mentioned in section 216(a).

 

            I gather from the language of the section and from reading the section as a whole, that if Reuven intended to kill Mustapha, but hit Anastas instead, Reuven will not be convicted of murder, but only of manslaughter, in accordance with sections 212 and 213 of the Criminal Code Ordinance.

           

            Considerable importance was attached to that distinction in the past, when a murderer was liable to the penalty of death by hanging, and to that penalty alone, whereas a person convicted of manslaughter was liable to the maximum penalty of life imprisonment. Today, those distinctions have to a great extent been blurred as the result of the abolition of capital punishment for murder, and its replacement by imprisonment for life.

           

            My opinion is, therefore, that the interpretation given to section 216(c) by the court below was the right one, and I think that the Attorney-General's appeal should be dismissed.

           

            In accordance with what has been set out above, it is decided by a majority to allow the appeal of the appellant, and it is unanimously decided to dismiss the cross-appeal of the respondent. The result will be as set out in the last paragraph of the judgment of Agranat J.

           

            Appeal allowed.

Cross-appeal dismissed

Judgment given on February 24, 1956

Crim.A. 47/56

           

DAVID MALKA

 v.

THE ATTORNEY-GENERAL

 

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[October 24, 1956]

Before Silberg J., Goitein J., and Berinson J.

 

 

 

Criminal Law - Criminal Code Ordinance, 1936, s. 218 - Causing death unintentionally - Negligence - Measure of liability - Civil liability - Civil Wrongs Ordinance, 1944, s. 60(a) - Application of rule in Hadley v. Baxendale - No liability for consequences of unusual series of events.

 

            On September 1, 1953, the appellant, who was driving a truck, knocked down a child of two years of age, Shimon Manan, causing a fracture of the arm. The child was taken to hospital where the doctors examined the arm, discovered the fracture, but also found that the fracture was a closed one so that the child's blood had not come in contact with the road. The doctors considered that there was, for this reason, no need to give the child an antitetanus injection, and that in fact it "might have been dangerous to do so. The child remained under treatment in hospital, but a few days later the wound opened. The child was given antibiotics but no injection against tetanus. On September 9 the child died.

           

            The appellant was charged under s. 218 of the Criminal Code Ordinance 1⁾ in the District Court of Haifa with having unintentionally caused the death of manan. The court held that the appellant had been negligent in driving the truck when he knocked down Manan and that there was a causal connection between the accident and the death and accordingly found the appellant guilty of causing the death within the meaning of the section. The appellant was fined I.L. 75.-.

           

Held :         allowing the appeal, that although the appellant was negligent when he knocked down the child, his negligence was not the cause of the death of the child since it was not possible for the appellant to foresee what the doctors had failed to foresee.

 

                        Held further, that the measure of liability for the purposes of s. 218 of the Criminal Code Ordinance, 1936, is the same as the measure of civil liability in the law of torts, and that s. 60(a) of the Civil Wrongs Ordinance, 1944, which deals with the measure of liability in tort for the consequences of an act, determines that measure according to the rule in Hadley v. Baxendale, (1854), 156 E.R. 145, and not that in re Polemis [1921] 3 K.B. 560.

 

Israel cases referred to :

 

(l)         Cr. A. 35/52 - Shalom Rotenstreich v. Attorney-General ; (1953), 7 P.D. 58.

(2)        C.A. 224/51 - Noah Pritzker and Others v Moshe Fridman;(1953), 7 P.D. 674.

(3)        C.A. 22/49 - Zecharia Levi v. Abba Leon Mousaf; (1950), 4 P.D. 558.

 

English cases referred to:

 

(4)        In re Polemis and Another and Furness, Withy and Co., Ltd., [1921] 3 K.B. 560.

(5)        Roe v. Minister of Health and Another; Wooley v. Same, [1954] 2 Q.B. 66.

(6)        Minister of Pensions v. Chennel, [1947] K.B. 250.

(7)        Smith v. The London and South Western Railway Co., (1870) L.R. 6 C.P. 14.

(8)        Greenland v. Chaplin, (1850), 5 Ex. 243: 19 L.J. (Ex.) 293.

9. Aldham v. United Dairies (London) Ltd., [1940] 1 K.B. 507.

(10)      Thorogood v. Van den Berghs and Jurens, Ltd., [1951] 1 All E.R. 682.

(11)      Hambrook v. Stokes Brothers, [1925] 1 K.B. 141.

(12)      Lilley v. Doubleday, (1881), 7 Q.B.D. 510.

(13)      Sharp v. Powell, (1872), L.R. 7 C.P. 253.

(14)      The Arpad, (1935), 152 L.T. 521.

(15)      Owners of Dredger Liesbosh v. Owners of Steampship Edison, [1933] A.C. 449.

(16)      Haddley and Another v. Baxendale and Others, (1854)156 E.R. 145.

(17)      Weld-Blundell v. Stephens, [1920] A.C. 956.

(18)      Scott v. Shepherd, (1773) 96 E.R. 525.

(19)      The Argentino, (1889) 59 L.T. 914,

 

Hayoun for the appellant.

Eltis, Deputy State Attorney, for the respondent.

 

SILBERG J.: This is an appeal, by leave, against a judgment of the Haifa District Court, in which the appellant was convicted of an offence under section 218 of the Criminal Code Ordinance, 1936 (unintentionally causing death), and fined I.L. 75.-.

 

            2. Chance has played a large part in the facts of this case. Though the beginning was something small - a slight injury which was not in itself dangerous and was expected to heal, and which had resulted from the appellant's negligence (as was found by the court) - the end was fatal, after a series of further occurrences, not due to negligence, caused partly by the hand of man, and partly by Providence. These caused the death of the victim, a child of tender years, through an unusual coincidence. The legal question - in fact, the only question - confronting us is, to what extent the "final act" can be related to the "original negligence" of the appellant. This question falls in part within the category of the complex of problems which arose in the well-known "Polemis Controversy" (4), but in part also can be distinguished from it, because of the criminal character of the case, as will be explained later.

 

3. The facts briefly are these: -

 

            (a) On September l, 1953, at 9.30 in the morning, the appellant drove a tender laden with watermelons through the streets of Haifa, and while turning from Stanton Street into the Omar-el-Khateeb Street, at a point about ten meters from the cross-roads, his vehicle collided with a two-year-old child (Shimon Manan), who was knocked down or fell to the ground, and this caused a fracture in his arm above the elbow. The appellant's arguments - that he drove very slowly, that he did not and could not have seen the injured child because of a cartload of prickly pears which obstructed his view, and other similar excuses - did not avail him; the learned judge did not believe what he said and she, relying on proper and sufficient evidence, held, as a finding of fact, which we see no ground for disagreeing with or departing from, that that injury was definitely caused by the appellant's negligent driving.

           

            (b) On the same day, shortly after the accident occurred, the child was taken to the Rothschild Hospital. An X-ray was taken, the fracture in his arm was found and it was put in plaster. He did not receive an anti-tetanus injection, for the doctors were of the opinion that this was not necessary, as the place of the injury was a closed fracture, and the child's blood had not come into contact with the ground. According to the doctors who testified: -

           

            ''If there is no open wound, anti-tetanus injections are never given... This anti-tetanus is not a remedy entirely without danger, and it is not just given anyhow - only in cases where it is clear to us that there is an open wound... In this case, the wound was not open, and there was no reason for giving an anti-tetanus injection" (Dr.Kliffer, pp. 2, 3 of the record).

 

            "In this case, there was no reason for giving the child an anti-tetanus injection, because the skin on the body was closed" (Dr. Peyser, ibid., p. 14).

           

            "In this case, that of Shimon Manan, there was no justification for giving an anti-tetanus injection..." (Dr.Galli, ibid., p. 21).

 

One witness disposes of the matter by saying: -

 

            "When there is no wound (he is obviously referring here to the case when there is no open wound) and a person falls to the ground, the chances of his getting tetanus are almost nil." (ibid. p. 22)

           

            "In eight years that I have been working in the Rothschild Hospital in the surgical ward, that was the first case of a patient getting tetanus after a closed fracture" (Dr. Kliffer, ibid., p. 3).

 

            (c) After a few days had passed, a necrosis developed in the child's skin in the region of the fracture. The cellular tissue in the same spot died, the skin blackened and contracted, and, as a result, the wound opened and was no longer "closed". To avoid infection and sepsis, the child's doctors began to use anti-biotics, penicillin and streptomycin, but nevertheless did not give him an anti-tetanus injection.

           

            "The fact that a necrosis had taken place did not render it necessary to give an anti-tetanus injection" (Dr. Peyser, ibid., p. 13).

 

            "Infection (he is referring to the infection of the pus excretion of the necrosis) is something secondary, that appeared after a few days, and in such a case it is not usual to give an anti-tetanus injection" (Dr. Kliffer, ibid., p. 3).

 

            If I apprehend this medical expert's opinion correctly, what he intended to say is this: that as at that moment, several days had passed since the day that the body had come into contact with the ground. and during all of those days the wound had been closed, there was no room then for fearing that the tetanus germs would penetrate the opening that had been formed with the coming of the necrosis.

           

            (d) This was the opinion of the experienced doctors, but the facts, to their surprise, proved them wrong. On September 9, 1953, early in the morning, eight full days after the accident had occurred, there suddenly appeared in the injured child's body symptoms of trismus and ophisthotonus, that is to say, convulsion of the mouth and twisting of the spinal cord - characteristic signs of tetanus. The doctors' efforts to save him were of no avail, and at 11 o'clock at night, the child died as a result of the above-mentioned illness. The cause of the illness was, according to the evidence of the doctors and the court's finding, the penetration of tetanus germs at the time when (or after) the said necrosis took place.

           

            (e) Thereafter the appellant was charged with unintentionally causing death, an offence under section 218 of the Criminal Code Ordinance, and was brought to trial before the Haifa District Court. The learned judge held that, notwithstanding the unexpected turn of events, there was a direct causal connection between the negligent act of the appellant and the death of the child, and convicted him of the offence under the section. The learned judge drew an analogy between the present case and the Polemis case (4), and concluded therefrom that the foreseeability of the concrete result is not a prior condition to convicting a person according to section 218. The learned judge saw the distinction between the civil action for tort in the Polemis case (4), and the criminal prosecution in the present case, but thought that it did not affect the matter because in the judgment of this court in Rotenstreich v. Attorney-General (1), the court had likened the degree of criminal liability under s. 218 to the degree of civil liability in actions in tort. It is against that judgment of the Haifa District Court that this appeal is brought.

           

4. It is well known that the bare causal connection between the act and the result does not alone suffice to impose legal liability upon the doer of the act. I wish to state that the test of the causa sine qua non is not the sole test for determining legal responsibility. One will not find an act or event which is not preceded by a long series, in fact an infinite series, of necessary causes, and although from the scientific or philosophical point of view, as John Stuart Mill has taught us, there is no ground whatsoever for discriminating between them, they cannot all be regarded as of equal weight as regards legal liability, civil or criminal. By holding otherwise, one must eventually arrive at the first man as the prime cause for all of the sins of mankind. Therefore Anglo-Saxon jurists on both sides of the Atlantic have been long wrestling with the problems of the limitation of the causes which preceded a given act, of how to define them and how to make of them an unvarying instrument for the purpose of practical use in court. Much ink has been spilt over this knotty problem, and the coins that have been minted to explain it have long been chipped or lost their lustre: expressions like "proximate cause", "remote cause", "direct cause", "material", "substantial", "effective", "causa causans", and the like - all these being tests suggested by judges and writers as additional tests, second in order but equal in degree, to the primary test of the "necessary cause" (James and Perry, Legal Cause, 60 Yale Law Journal, 1951, pp. 761-811; Hart and Honore, Causation in the Law, 72 Law Quarterly Review, 1956, pp. 58-90, 260-281, 398-417).

 

            From amongst all those obscure tests and distinctions, one test, much more certain and clear, raises its head, and that is the test of "foreseeability", that is, the possibility of foreseeing the outcome of an act; though even this test has been fenced around to prevent it being the subject of criticism. It is a firm rule in the law of torts that, if the defendant, as a reasonable man, did not anticipate and could not have anticipated, that his act (or his omission) would bring in its wake any injurious consequence whatsoever to someone to whom he owes a duty of care, then he is not liable to pay for the damage that has been caused, notwithstanding that his act (from the physical point of view) constituted a necessary cause, or causa sine qua non, of the injurious consequences. In other words, the reasonable foreseeability of the very fact of damage occurring is a necessary and prior condition of legal liability. For "there is no negligence unless there was a corresponding duty of care" (Pritsker v. Fridmnan (2), at p. 682), and "the test of duty depends, without doubt, on what you should foresee" (Denning L.J. in Roe v. Minister of Health (5), at p. 84; cf. Denning J., in Minister of Pensions v. Chennel (6), at p. 253).

 

            On the other hand, it is clear and beyond dispute, that the absence of foreseeability as regards the extent and dimensions of the damage does not serve to prevent the imposing of liability, and even the unforeseen part of the damage will be charged to the person who negligently causes the damage: -

           

            "If the negligence were once established, it would be no answer that it did much more damage than was expected..." (Smith v. London and South Western Railway Co. (7), at p. 22).

           

            But the problem once more arises in the intermediate case, where the foreseeability is lacking, not in relation to the fact of the damage occuring nor in relation to its extent, but "in relation to the kind of damage", or to put it more accurately, in relation to the remarkable way in which, in this specific case, the injurious process worked. It should be added that there is no relationship between the two ways, the actual and the potential; for example, instead of the expected theft, there comes a flood! This group of cases parallels, in fact, what the Sages of the Talmud describe in a remarkably apposite definition:"The beginning was with negligence, though the end was through an accident", with the additional attribute that both of them are to be found within one "causal chain", that is to say, were it not for the negligence, the accident would not have happened. Take, for example, the well-known case of the "cot of bulrushes", which is the Talmudic "counterpart" to the English Polemis case (4), except that it preceded it by 1600 years. It is worthwhile examining that case, for it contains, in a concise passage, all the elements of the concept: -

           

            "A certain man deposited money with his neighbour, who placed it in a cot of bulrushes. Then it was stolen. Said R. Yosef: Though it was proper care in respect to thieves, yet it was negligence in respect to fire: hence the beginning (of the trusteeship) was with negligence though its end was through an accident, (and therefore) he is liable." (Babylonian Talmud, Baba Metsiah, 42a).

 

            "It once happened that a man deposited money with another who put it in a fence made of reeds. The money lay well hidden in a pocket within the fence, when it was stolen." The Sages said, "Although this is a proper safeguard against thieves it is not a proper safeguard against fire... and whenever a bailee is negligent at the beginning, though in the end its loss occurs through force (or accident) he is liable" (Maimonides, Chapter 4 of Milchot She'elah Pikadon, Halacha 6).

 

            Here there was a causal connection between the negligence and the accident, and the accident "comes because of the negligence", as the commentators say, for had he not left the money there, it would not have been stolen, for the thieves, apparently, did not look in other places. On the other hand, the law is different in the following case: -

           

            "If he (the bailee) was negligent - (sc. the negligence of the bailee to whose care the animal was entrusted, placing it in a stable improperly closed (Rashi, ibid.)) - and it went out into a meadow (sc. to graze), and died naturally .. .Raba in Rabbah's name ruled that he is not liable... not only is he not liable on the principle that, if the beginning is through negligence, and the end through an accident, one is not liable, but even on the view that he might otherwise be liable, in this case he is not. Why? Because we say what difference is there to the Angel of Death where one places the animal" (Baba Metsiah, 36b).

 

            Here there is no causal connection between the negligence and the accident, for the Angel of Death does not distinguish between "here" and "there", and would have taken his toll in the cowshed, too; so the keeper is not liable, even though he was negligent in keeping the cow in an unenclosed shed.

           

            This, in a nutshell, presents us with both sides of the Polemis principle, as will be explained later on, but with one important difference which should be emphasized right at the very outset: the Polemis rule concerned the duty derived from the law of torts; the rule of the "cot of bulrushes" concerned the duty in contract, a special contractual duty derived from the law of bailment. I shall consider this distinction at a later stage in the judgment.

           

5. To turn now to the Polemis case itself. What happened there was this:

 

            In February, 1917, the charterers hired the Greek vessel "Thrasyvoulos" from its owners, Polemis and Co., for the duration of the war, and transported cargo in it to North Africa. Clause 5 of the charterparty provided that at the end of the period of the charter, the charterers were to return the ship in the same condition as they received it from the owners, subject to ordinary wear.

           

            On July 17, 1917, the ship reached Casablanca with a varied cargo containing cases of benzine and petrol. Unloading by Arab workers and winchmen, taken on from the shore on behalf of the ship's charterers, began immediately, and preceded without a hitch for four days. On the fourth day, the 21st of the month, when the workers unloading the ship were about to bring up a number of cases from the hold on to the deck by means of a bridge of planks which had been set up by them for that purpose, a heavy board fell into the hold below, struck something, and, as a result of the blow, a spark ignited the petrol vapour escaping from inside the tins, there was a burst of flame, and the ship was destroyed by fire.

           

            Polemis and Co. demanded payment of the cost of the ship from the charterers, the charterers denied liability, and the matter came before arbitrators who were requested to give their judgment in the form of a case stated. In their statement of claim, the plain­tiffs accused the defendants of negligence causing the loss of the ship, but as an alternative ground, they relied on the duty of returning the ship which the defendants had taken upon themselves, as stated in clause 5 of the aforementioned charterparty. Paragraph 5 of the statement of claim, as quoted by McNair in his article, "This Polemis Business", published in the Cambridge Law Journal, Vol, 4, pp. 125-145, is as follows: -

           

"5. The Charterers are not relieved of liability for the negligence of the agents and/or servants or employees under the said charterparty and the Owners' claim for loss and damage occasioned to them by reason of the negligence aforesaid. Alternatively the Claimants say that the Charterers are liable in damages under Clause 5 of the said charterparty." (Loc cit., p. 127.)

 

            This means that Polemis was riding two horses at one and the same time - both on the law of torts and on the law of contract; and this should not be overlooked when coming to examine and criticize the Polemis decision.

 

            The arbitrators gave their judgment in the form of a case stated, and made the following principal findings of fact: -

           

"(a)  That the ship was lost by fire.

    

(b)   That the fire arose from a spark igniting petrol vapour in the hold.

 

(c)   That the spark was caused by the falling board coming into contact with some substance in the hold.

 

(d)   That the fall of the board was caused by the negligence of the Arabs (other than the winchmen) engaged in the task of discharging.

 

(e)   That the said Arabs were employed by the Charterers or their Agent the Cie. Transatlantique.

 

(f)   That the causing of the spark could not reasonably have been anticipated from the falling of the board though some damage to the ship might reasonably have been anticipated." (Ibid., p. 134.)

 

            The legal conclusion to be drawn from all those facts was left to the decision of the court; Sankey J. in the court of first instance, and the Court of Appeal, upheld the owner's claim, and held the "Thrasyvoulos" charterers liable to pay the cost of the ship. I do not know what the legal argument before Sankey J. was, but the arguments submitted to the Court of Appeal by counsel for the parties are known, and of these I shall note one: that which turned, in a somewhat curious manner, on the alternative versions and different texts that were discovered of Pollock C.B.'s dictum in the case of Greenland v. Chaplin (8). The charterers' counsel, Mr. Wright and Mr. Porter (who were later to become so famous as Law Lords), quoted the version appearing in the Exchequer Reports, according to which the judge had said: -

           

            "I entertain considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated." ( at p. 248)

 

            On the other hand, Polemis' counsel produced the Law Journal Reports, in which Pollock C.B.'s words were quoted thus : -

           

            "I entertain considerable doubt whether a man is responsible for all the possible consequences that may, under any circumstances, arise in respect of mischief which by no possibility could he have foreseen, and which no reasonable person under any circumstances could be called upon to have anticipated." (19 L.J. (Ex.) 295.)

 

            Here, in the latter passage, there are missing the words, "who is guilty of negligence", meaning that, if his very conduct was negligent by dint of any foreseeable damage whatsoever, which could have resulted from it, he is liable for all actual damage which came about as a consequence of his conduct, even if he could not (at the time of the act) have seen "that which was to come about".

            Indeed, that was the rule which was accepted by the judges of the Court of Appeal, and on account of which they held the charterers liable to pay to Polemis the cost of that ship. Three Judgments were given by the three Lords Justices, and they all had the same purpose, though they did not express it in the same way: -

           

            "In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants' servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants' junior counsel (the reference is to Mr. Porter) sought to draw a distinction between the anticipation of the extent of the damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act... I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipation of the person whose negligent act had produced the damage appears to me to be irrelevant" (Bankes L.J. in Re Polemis (4), at pp. 571-572.)

 

            "The result may be summarised as follows: The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act." (Warrington L.J., ibid.,at p. 574.)

 

            "To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it (the act) in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independant causes having no connection with the negligent act, except that they could not avoid its results." (Scrutton L.J., ibid., p. 577; cf. Aldham v. United Dairies (London) Ltd. (9), per du Parcq L.J.,at p. 513.)

 

            It is stated here, "the fact that the damage it in fact causes is not the exact kind of damage etc". Does that exclude the case where the actual damage differs considerably from the expected damage? In my opinion, it does not. It seems to me that the expression, "is not exactly", is not in itself quite accurate, and the Polemis case itself demonstrates that. For it is impossible to say that the conflagration of the petrol vapour as a consequence of the falling of the plank is only not exactly the same damage that is usually expected whenever a heavy block of wood rolls over and falls from the deck to the ship's hold.

           

            That, therefore, was the Polemis rule, which was propounded 35 years ago in England by the Court of Appeal. Attempts have been made to express it concisely, and one of the coins that the learned have minted from that rule is the well-known dictum of the great American judge. Holmes: -

           

            "The tort once established, the tortfeasor takes the risk of consequences." (Oliver Wendell Holmes, Holmes-Pollock Letters, Vol. 2, p. 88, quoted by Lord Wright in "Re Polemis", (1957), 14 Modern Law Review 393.)

           

But if I am not mistaken, the correctness of that dictum has been attacked by one of the authors; with the very greatest respect, it contains something of a circulus vitiosus, for so long as you have not determined the liability for the consequences, you have not yet identified the tortfeasors. It appears to me that, if we really must search for and find a concise formula as a device against forgetfulness, then the most pungent one will be the Talmudic formula: -

 

            "The beginning was with negligence though its end was through an accident, and therefore he is liable – so long as the accident occurs because of negligence."

           

            Except that, as a consequence of transferring the word "negligence" from the law of bailment to the law of torts, a slight change will take place in its meaning, and instead of "a breach of the duty of guarding", will come "a breach of the duty of care." Subject to the differences flowing from that change, the Polemis rule will be identical with the rule of the "cot of bulrushes", with the addition of the rounding-off notion which was expressed in the picturesque saying: "What difference does one place or another make to the Angel of Death".

           

6. Now, having reached this point, let us see how that rule can be applied to the case under appeal. But before we do that, let us retrace our steps for a brief moment, and take one more look at the details of the case. There is no doubt that from the point of view of the remarkable course in which the events followed one upon the other, an accident of the kind with which we are faced is infinitely more rare, less expected, than that which happened to the Greek ship in the Polemis case. The arbitrators found that the firing of the spark by the falling of the board was something that could not have been foreseen, but we do not know, for example, what they would have said about the reasonable foreseeability of the onlooker, had the persons engaged in the matter been, not simple porters from Casablanca, but an expert group of chemists and physicists who know what the natural reaction of petrol vapour is, and what the temperature created by the falling and colliding of that solid body is likely to be. In the present case, we are freed entirely from the necessity of going into such questions and conjectures; here, indeed, they were not only laymen, but also experts, professional men - by which I mean the senior doctors who treated the deceased child - and it did not occur to them, nor did they imagine, that the contact with the ground at the place where there was the closed wound, would result several days later in the penetration of tetanus germs into the child's body. Conclusive proof thereof may be found in the fact that during the whole of those eight days, even after the necrosis occurred, they refrained - with their eyes wide open they refrained - from giving him an anti-tetanus injection; and if expert doctors thought on these lines, surely no more can be expected of an ordinary man in the street, such as the appellant Malka!

 

            In trying, therefore, to bring the actual facts of this case within the rules of the Polemis case as defined by us above, it is necessary to find, and we do find, that all the conditions of the rule are fulfilled:

           

(a) the beginning was with negligence - namely, the appellant's  negligent driving which was calculated, on any reasonable view, to run down and kill the child;

(b) its end was through an accident - namely, the child's death from tetanus, something which even the expert doctors could not foresee; and

(c) the accident came because of the negligence - for but for the injury to the arm, there would have been no necrosis and no penetration of the tetanus germs, and the child would not have died.

 

            The present case, therfore, fulfils with considerable accuracy all the conditions of the Polemis rule, and if we answer all three questions in the affirmative and reach the conclusions -

           

(a) that the Polemis rule is the rule applicable in England;

(b) that the decision also binds the courts in Israel;

(c) that this rule, mutatis mutandis, also applies to the offence under section 218,

 

we shall have no alternative but to confirm the appellant's conviction. Let us therefore, examine these three questions one by one.

 

7. Questions (a) and (b) arose in this court, from one point of view and to a certain degree, in Levi v. Mousaf (3), but in the end no decision was given on them as they called for further consideration and as was stated by Agranat J. at p. 570, there was no need to decide them in that appeal. As for the first question, Agranat J. states - and with respect, I agree with him - that : -

 

            "The rule laid down in the Polemis case has not been entirely crystallized in England . . . . . and has not yet had its final confirmation in the House of Lords" (p. 569).

 

            However, in the meantime (after judgment was given in the said case of Levi), the English Court of Appeal had the opportunity of dealing with this question once again, and it openly, and expressly, followed the decision laid down in the Polemis case while noting it as one which had not been shaken till this day. I refer to the judgment given in 1951 by the Court of Appeal in the case of Thorogood v. Van den Berghs and Jurgens, Ltd. (10), at pp. 690, 692, and if, indeed, a final ruling is not always established on the basis of two judgments, the accepted view is that for the time being, and for as long as the House of Lords does not intervene in the matter, the Polemis rule is to be regarded as the current rule on this subject in English law; and even its distinguished and strongest critic, Professor Goodhart in his brilliant article, "The Imaginary Necktie and Re Polemis", who wrote at the beginning of the article that: -

           

            "It may not be out of place to put forward… the view that Re Polemis is of doubtful ancestry and that its sterility during recent years has been of benefit to the law",

           

writes in another place that : -

 

            "Only in the House of Lords could the criticisms that had been advanced against the rule be taken into consideration, and its validity be open to question. Thorogood's case (10), is therefore conclusive on the point that Re Polemis is still alive, but there is nothing in Asquith L.J.'s judgment which can be regarded as an argument in favour of its continued existence" ((1952) 68 Law Quarterly Review 514, at p. 517).

 

            To sum up, if indeed the question what is the current rule on this subject in the courts of England, is of relevance for us, then the question has been answered - the Polemis rule !

           

8. I said. "If indeed the question is of relevance, etc.", and with that we reach the second question mentioned above, namely, whether or not the Polemis decision also binds the courts in Israel. The cautiousness of approach necessitated here is founded on the meaning to be attached to the provisions of section 60(a) of the Civil Wrongs Ordinance, and the question is whether the section should not be regarded as a clear and express departure by the Palestinian legislator from the ruling prevailing in English law.

 

            In form, this question resembles the question that arose (but was not settled) in Levi v. Mousaf (3). In substance it differs from it entirely. I will not attempt here to draw positive conclusions from the expressions to be found in the said section; I am aware of the considerable significance attaching to those expressions, having regard to the presence of both scientific exactitude and legal realism. I shall content myself here with a negative argument, and will endeavour to show that in that same section 60(a), the legislator did not intend, and could not have intended, to adopt the standard laid down in the Polemis decision.

           

9. I will explain my meaning. The great argument carried on between the judges and the authors over the confines of the Polemic rule is well-known; it is a "frontier dispute" which has never been settled to this day. One view, propounded apparently by some authorities, though very much in the minority, is that the Polemis rule refers only to breaches of contract. That is the opinion of Sargant L.J. in the case of Hambrook v. Stokes (11), which concerned a widower's action for the payment of damages for the death of his wife, caused as the result of the negligent act of the defendant: -

 

" …And In re Polemis and Furness, Withy & Co., dealt with a case in which there was a duty by contract between the plaintiff and the defendant, while here we have to determine, in the absence of contract, what is the extent of the duty of the defendant, and whether the plaintiff's wife fell within the area of the duty..." (at p. 164).

           

            That view is not entirely to be dismissed. Admittedly, no one can dispute the fact that in the Polemis case there were proper and well-ordered contractual relations between the owners of the ship and its charterers and, as we have seen above, the plaintiffs in that case even relied in their statement of claim on the duty of restoring the subject-matter of the charterparty as laid down in clause 5 of the agreement. Yet there was extra-contractual negligence on the part of the charterers, which was equally capable of rendering them liable to pay for the owners' damage. In the Hambrook case (11), on the other hand, the negligence was non-contractual, "pure and simple", as we have already seen. Sargant L.J.'s distinction, therefore, is not, with respect, entirely without foundation; and as for the correctness of its legal content, the scales of logic are decidedly balanced here, and it is possible to an equal extent to argue one way or the other: that the material is contractual rather than tortious, or that the material is tortious rather than contractual. A fair example of this equilibrium may be found in Lord Porter's article on "The Measure of Damages in Contract and Tort", in which these words of the American scholar, Sedgwick, are quoted:-

 

            "A just rule therefore would put upon a person who commits a tort the risk of all proximate consequences of his wrong, but upon him who breaks a contract such risk as he could have foreseen when he undertook the duty and this appears to be the conclusion of the law." ( Sedgwick on Damages, 9th Ed., p. 261, quoted in Lord Porter's article, The Measure of Damages in Contract and Tort, 5 Cam. L.J. 176, at pp. 185-186).

 

And Lord Porter himself replies in these words: -

 

            "But is the rule necessarily just? One might, I should have thought, as readily transpose the wording of the statement and say one who commits a tort has the obligation to be careful imposed upon him by the general law, and therefore should be subject only to liability for damage which he can foresee as likely to follow from his negligence, whereas he who breaks a contract voluntarily exposes himself to a risk he need not have undertaken and therefore should incur all the proximate consequences of his voluntary act" (ibid. p. 186).

 

            It is obvious that common sense cannot decide the matter here, and that Sargant L.J.'s opinion, too, has logic on its side. It should not be forgotten that the Polemis case concerns property placed in the hands of the defendant, and that is also a ground for making the rule stricter, for the liability here is for an event, anticipated or unanticipated, which prevents any possibility of the owners getting their property back. Perhaps it would be proper to make use here, mutatis mutandis, of the judgment that was delivered by an English judge as early as 1881 - a judgment applying, as it were, the Polemis rule which was yet to be born, to the special duty of the bailee towards the owner. That case concerned goods which the bailee (or depositee) had transferred to another place of safekeeping, where they were burned without any fault on his part; the judge said: -

 

"I think the plaintiff is entitled to judgment.... The defendant was entrusted with the goods for a particular purpose and to keep them in a particular place. He took them to another, and must be responsible for what took place there. The only exception I see to this general rule is where the destruction of the goods must take place as inevitably at one place as at the other." (Grove J., in Lilley v. Doubledcry (12); vide Georke T. Washington, Damages in Contract at Common Law, 48 L.Q.R. 90, at p. 105, note 83; cf. judgment of Grove J. in Sharp v. Powell (13), at pp. 259-260).

           

            A rule was laid down here strikingly resembling the above-mentioned Talmudic ruling. Before us is a rule of bailment, in the spirit of the principle of the "cot of bulrushes", juxtaposed with the "exception" of "what difference does one place or another make to the Angel of Death" (on the assumption that the actual transferring from place to place is "negligence"). And as we saw earlier, that indeed is the Talmudic rule which is the counterpart to the Polemis rule. Here is the link and the bridge between the two cases.

           

            To be quite accurate, in order to avoid any misunderstanding as regards that comparison, I wish to say further that, if indeed the rule, "the beginning was with negligence though its end was through an accident, and therefore he is liable", applies principally to matters of bailment (cf. Babylonian Talmud, Baba Metsiah, 36^b, 42^a, 93^b; Maimonides, Chapter 4 of Hilchot She'ela ve-Pikadon, Halacha 6 ; Chapter 3 of Hilchot Schirut, Halachot Schirut, Halachot 9, 10 : Shulhan Aruh Choshen Mishpat, Art. 291, 9), nevertheless, in its periphery, it has penetrated somewhat into the field of torts, torts of property, that is, property that causes damage (Babylonian Talmud, Baba Kama, 21^b, 56^a ; Maimonides, Chapter 2 of Hilchot Nizkei Mamon, Halacha 15; Shulhan Aruh, Hoshen Mishpat, Art. 390, 12; Art. 396, 1). The reason is that here too is something analogous to the "law of bailment", for, according to the sources of Hebrew law, liability for the torts of property which cause damage arises from the fact that "its safekeeping is your responsibility" (Baba Kama, 9^b).

 

            It is possible, therefore, to place the rule on a single notional basis, and say: "The Talmudic Polemis rule, namely, the rule that the beginning was with negligence though its end was through an accident, and therefore he is liable, is confined neither to contracts nor to torts; it has become linked to matters pertaining to the duty to safeguard property, whether it is someone else's property and the duty is to safeguard it against damage, or whether it is one's own property and the duty is to keep it from causing damage."

           

            Noting that in the concrete instance of Polemis, also, there was a duty to safeguard property, it would be desirable to try and regard the Polemis rule from this aspect also. That would raise the number of possible interpretations of the Polemis rule to four.

           

            10. To return to the interpretation given by Sargant L.J., I shall conclude by noting the fact that that interpretation has not found any response among lawyers, and that they have passed it over without any discussion worthy of the name. Two schools of thought remain: one holding the view that the Polemis rule is limited to cases of tort only, and the other holding that it applies both to tort and to contract. We shall see later that in order to decide the specific question with which we are engaged, we do not need to adopt either position in that dispute, but will draw out. conclusions for the most part from the arguments themselves that have been put forward for and against in that debate.

           

            Let us see how those views were expressed and what were the reasons upon which they were based. Scrutton L.J.'s view (which assumes special significance from the fact that he was, as will be recalled, one of the judges who sat in the Polemis case) was that the application of the Polemis rule is limited to actions in tort only. These are his words:

           

"The real distinction is, I think, between a tort, thedamages for which do not require notice to the wrongdoer of their probability, and contract, where Hadley v. Baxendale requires the consequence to be in the contemplation of the parties" (The Arpad (14), at p. 526; cf. Liesbosch v. Edison (15), at p. 461).

 

            Whatever the precise meaning of the terms "probability", "notice of their probability" and "contemplation" may be, one thing is clear, namely, that in the opinion of Scrutton L.J., the application of the Polemis rule, to which he was very obviously referring in the first half of the passage, is limited to cases of tort alone.

           

            And we learn one thing more, the great importance of which will later become apparent, and that is that the measure of liability imposed according to the Polemis rule is not identical with the measure of liability that was imposed, a hundred years ago, in Hadley v. Baxendale (16). It follows that whoever defines the measure of liability of a tortfeasor in terms that were used in Hadey v. Baxendale, testifies to the fact that he himself does not believe in the Polemis doctrine and that he wishes to have nothing to do with the stricter measure of liability laid down in that decision.

           

            The judgment in the case of Hadley v. Baxendale was delivered in 1854 by Alderson B, and to this day the judge and his judgment are referred to with the greatest respect; the decision is regarded as a classic ruling, sound and wellfounded, which is beyond appeal and beyond question. For the sake of accuracy, I shall quote it here exactly as it was written in the original:

           

            "Now we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it" (at p. 151).

 

            It is stated here: "either - or", but it is clear that to the extent that I have spoken in this judgment of applying the principle in Hadley v. Baxendaie to torts, the intention was, of course, to the first alternative, namely, to the limiting of the tortfeasor's liability to such damage as may fairly and reasonably be considered as damage, "arising naturally, i.e., according to the usual course of things", from the tortious act itself.

 

            The question of the relationship between the Hadley rule and the Polemis rule has played and still plays an important part in the great debate taking place over the Polemis rule's "area of jurisdiction": whether it is limited to tort cases, or whether it also covers cases of breach of contract. Professor McNair, for instance, in his article, "This Polemis Business", referred to earlier, expresses the opinion that the Polemis rule is limited to cases of tort, saying: -

           

            "In short, I submit that, in the light of the foregoing documents, the Polemis decision is not an authority upon the measure of damages for breach of contract and must be confined in its effects to the law of tort; the shipowner's claim was pleaded alternatively in contract and in tort, but they obtained judgment in tort. In support of this submission I beg to make the following comments upon the case: -

           

            ............................

           

            "10. The judgments of the Court of Appeal (Bankes, Warrington and Scrutton, L.JJ.) are familiar to all readers, and it is unnecessary to make more than two comments. (i) Throughout they treat the action as a claim for damages for negligence, that being the cause of action upon which Sankey J. gave the judgment appealed from.(ii) Nowhere do they refer to Hadley v. Baxendale, which it would have been impossible to ignore if they had been laying down a principle governing the measure of damages in tort and in breach of contract alike, and which, decided in the Court of Exchequer, has since been recognised by the Court of Appeal and is so well established that even the House of Lords would hesitate to disturb it."

 

            In his footsteps another author, in a very profound article dealing with the question of damages in contract at common law, states: -

           

"Hadley v. Baxendale was at once recognised as the leading authority in this branch of the law, and it still maintains its position. That position as Dr. McNair has mustered persuasive evidence to show, will doubtless remain unaffected by the decision of the Court of Appeal in the Polemis case... Whatever the validity of Re Polemis as a case in tort, it cannot affect the authority of Hadley v. Baxendale, in the field of contract" (George T. Washington, op. cit., at p. 105).

 

            Professor Goodhart, too, in the aforementioned article, shows that the view prevailing among those learned in the law of contract is that the Hadley rule and not the Polemis rule holds sway in the field of damages in contract. Although Professor Goodhart himself shares the opinion that the judges in the Polemis case intended to spread the net of that decision over both cases of tort and contract, he uses that approach itself to attack the very rule in Polemis, and thus proves how very wrong the judges in the Polemis case were in ignoring the classic ruling laid down in Hadley v. Baxendale, or treating it as of no effect. For the consistent idea passing like a silken thread through his brilliant article is that Polemis and Hadley v. Baxendale cannot live under one roof. Thus, he states:

           

            "It is difficult, therefore, to see how the rule in Polemis can be reconciled with that in Hadley v. Baxendale, however much we may strain the language used in the latter judgment" (loc. cit., p. 521).

           

            "...there are only two possible solutions to the problem we are considering: either Polemis and Hadley v. Baxendale must be heard to mean the same thing, which will require a feat of the greatest mental ingenuity by the re-interpretation of Hadley v. Baxendale, or Polemis must be held to have been incorrectly decided, as I believe it was" (ibid., p. 522).

 

            The upshot of all that - and that is the first link in the chain of legal conclusions necessary for deciding this appeal - is that the Polemis test and the Hadley test are not the same thing, and that there is a difference both in degree and in kind between the two said measures of liability.

           

 12. I said earlier, in paragraph 6 of this judgment, that if we make use of the Polemis rule as the correct standard by which to determine the criminal liability of the appellant under section 218, we must uphold his conviction for that offence. Now, let us put to ourselves the question, which may perhaps seem at this moment to be purely academic, and that is, what would have been the present appellant's fate if it had been provided somewhere in the statute or case law that in fact liability under section 218 is to be examined in the light of the test of Hadley v. Baxendale? (I am referring, of course, to the fact alternative in it).

 

            It seems to me that the question has but one answer, and that is that the appellant in this case would be found not guilty. I am at one with those who think that, in the final analysis, and after peeling off all the layers that have encrusted it, the test of the Hadley rule is a test of "foreseeability" (see Goodhart, loc. cit., p. 511; and examine closely the words of Cheshire and Fifoot, Law of Contract, 3rd edition, p. 493). The latter part of the rule confirms the earlier part, for there is no real difference between foreseeability and contemplation, so far as the actual principle of the need to foresee is concerned.

           

            Now, since the foreseeability as regards the very fact of damage occurring is, as we have seen earlier, a prior, necessary condition for the operation of the Polemis rule as well, the corollary that divided the two rules can only be this: that according to the Hadley rule, the foreseeability must embrace not only the very fact of damage occurring, but also the "kind" of damage, as distinct from its "degree", as I explained in paragraph 4 of this judgment.

           

            It follows that if mutatis mutandis we are to examine the liability of an offender under section 118 according to the civil test of Hadley v. Baxendale, we should have to acquit the appellant. For when that rule is applied to the present case, the "foreseeability as regards the character of the fatal result" becomes a requisite for conviction here, and in the present case there is not a shadow of doubt that the character of the actual result, namely, the child's death from tetanus as a consequence of the penetration of germs into the body three full days after its contact with the ground, was so remarkable and rare, so unusual and abnormal, that no reasonable man could have anticipated it - as the evidence of the doctors proves - and here there was certainly no adequate or sufficient link between the actual and potential result of the accident.

 

13. So we reach the decisive question: what is the standard by which to measure the liability of a person accused of an offence under section 218 of the Criminal Code Ordinance? That question divides itself into two:

 

(a)        How is that measure of liability related to the measure of liability employed in the law of torts - does it differ from it, or is it the same?

 

(b)        If it is said that it is the same, then what are the principles prevailing in the law of torts in Israel law as regards the problem before us?

 

            The second question, as I have already implied, turns on the interpretation to be given to the provision in section 60(a) of the Civil Wrongs Ordinance, and briefly put, the question is whether that provision contains within it the Polemis test, or not.

           

14. As far as the first question is concerned, the answer is that it is the same. No one will be found guilty of an offence under section 218, unless he has failed to fulfil his duty of care towards the victim, to the extent to which such failure would have obliged him to pay damages if a civil action in tort had been brought against him for the very same act of negligence. This conclusion clearly follows from the rule laid down by the majority of the judges of this court in the appeal of Rotenstreich (1), above mentioned. It makes no difference whatsoever whether the matter under consideration is (as it was in the case of Rotenstreich) the question of the offender's liability towards a trespasser, or whether it is (as in this appeal) the question of the measure of liability for the results flowing from his act of negligence; for both of them shelter beneath the shade of one central idea. The learned judge was fundamentally right, therefore, when she sought the solution to the problem among the sources of the civil law concerning the law of torts.

 

15. Turning now to the second question, which concerns the proper meaning of section 60(a), I have reached the conclusion that the provision in that section expresses, not the Polemis principle, but rather the "opposing" principle, that is, the one laid down in Hadley v. Baxendale. It is very easy to demonstrate this: we have only to carry out a sort of "comparison of handwriting", that is to say, a comparison of the text of section 60(a) with the text of the Hadley rule, in order to recognise that simple and obvious conclusion.

 

            The text of the Hadley rule, namely, the first part which can be transferred, mutatis mutandis, to the law of torts, is :-

           

            "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or..."

 

Whilst the language of section 60(a) of the Civil Wrongs Ordinance is: -

 

            "(a) where the plaintiff has suffered damage compensation shall only be awarded in respect of such damage as would naturally arise in the usual course of things and which directly arose from the defendant's civil wrong."

 

            We see that section 60(a) follows word for word the test laid down, as regards foreseeability, in Hadley v. Baxendale. Moreover, it seems that the additional condition also (as regards the causal connection) stated in the first part, namely, "and which directly arose from the civil wrong", is none other than the adequate "counterpart" to the corresponding first part of the Hadley rule - damage "arising... from such breach of contract itself". All that the interpreters of the term "directly" have up to now succeeded in their wisdom in suggesting as its meaning is, that there has been no novus actus interveniens between the cause and the effect, and it seems to me that that is the purport of the words, "damage arising from such breach of contract itself" (Chitty on Contracts, 21st edition, p. 411; Goodhart, op. cit., p. 530; James-Perry, op. cit., pp. 804-805; 62 Corpus Juris 1115; Clerk and Lindsell on Torts, 9th edition, pp. 135-143 ; cf. Lord Sumner in Weld-Blundell v. Stephens (17), at pp. 983-984 ; De Grey C.J., in Scott v. Shepherd (18), at pp. 528-529).

           

            Identity of text and definition is at all times and in all places a sure sign of identity of content, and the conclusion to be drawn is that the Palestinian legislator adopted not the Polemis rule, but its "opposite", in section 60(a).

           

            This is not to be wondered at, and no tears need be shed over it. The Polems principle is full of difficulty and stumbling-blocks, and has never enjoyed the loud plaudits of writers in the law. Only the force of precedent and "the power of the spoken word" have managed to continue its unwanted existence in England, and thus it will remain until expressly overruled by the House of Lords. The Palestinian legislator was free from those shackless, and so substituted for the Polemis rule the more reasonable rule in Hadley v. Baxendale. And it may be truly said that there is nothing novel in that, that it is not the first time it has happened, and that a great English judge once said that Hadley v. Baxendale is a rule covering both cases in contract and cases in tort (Lord Esher M.R., in The Argentino (19), at p. 916).

           

16. To sum up: earlier in this judgment we put forward these three basic conclusions : -

 

(a)   that the measure of liability according to section 218 is the same as the measure of civil liability applicable in the law of torts ;

 

(b)   that section 60(a), which deals with the measure of liability in tort for the consequences of an act determines that measure according to the test of Hadley v. Baxendale;

 

(c)   that in the light of the Hadley v. Baxendale test, the present appellant is not liable for the fatal consequence that flowed, in the course of an unusual series of events, from his act of negligence.

 

            And the final conclusion to be drawn therefrom is that the appellant has not committed the offence set out in section 218 of the Criminal Code Ordinance.

           

            Accordingly, I think that the appeal should be allowed and that the conviction and sentence should be quashed.

           

GOITEIN J., I agree.

 

BERINSON J., I agree.

 

Appeal allowed. Conviction and sentence set aside.

Judgment given on October 24, 1956.

 

F.H. 5/63

 

           

ATTORNEY-GENERAL

v.

DANI WEIGEL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[October 31, 1963]

Before Olshan P., Berinson J., Cohn J., Manny J. and Halevi J.

 

 

 

Construction of statute - prostitution offences - mandatory imprisonment - exclusion of probation - Penal Law Amendment (Prostitution Offences) Law, 1962, sec. 10-Probation of Offenders Ordinance, 1944, sec. 3 (2).

 

            The respondent was convicted at first instance of being a procurer under section 1(b) of the Penal Law Amendment (Prostitution Offences) Law, 1962, but owing to the special circumstances of the case he was not given a prison sentence but put on probation. An appeal to the Supreme Court having failed, the Attorney-General applied for a Further Hearing* regarding the construction of the said section 10 in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944. The sole issue was whether a person convicted under the Law must be sentenced to imprisonment or may instead be put on probation.

           

Held by a majority (1) An "offence punishable by imprisonment or fine" to which the Probation Ordinance applies is descriptive of the kind of offence for which probation is available. Such an offence does not cease to be of that kind if the penalty is expressly mandatory. "Punishable" is not restrictive so as to exclude a mandatory penalty.

 

(2) A section of the Law under which "a penalty of imprisonment shall be imposed" is intended (upon sentencing) to exclude a penalty as the sole penalty which is not imprisonment. Probation as such is not a penalty and therefore falls outside the ambit of the section.

 

(3) To oust existing sentencing powers and restrict the rights of the individual, particularly in criminal matters, express statutory provision is necessary. Section 10 contains such an express provision as regards conditional imprisonment but not as regards probation.

 

(4) Probation is a method of treatment alternative to imprisonment, intended to assist in the rehabilitation of offenders. Ever since its introduction it has not conflicted with but complemented imprisonment

 

(5) The cases of prostitution offences in which the courts will direct probation rather than impose imprisonment are very rare. Indeed it would defeat section 10, if they did so to any appreciable extent.

 

Israel cases referred to:

 

(1)       Cr.A. 69/63-Attorney-General v.Dani Weigel (1963) 17 P.D. 712.

(2)       Cr.A. 26/55-Rahel and Yaakov Shakraji v. Attorney-General (1955) 9 P.D. 378.

(3)       Cr.A. 44/52-Kassem Hasin Diab v. Attorney-General (1952) 6 P.D. 922.

(4)       H. C. 186/62- B. Veider v. Minister of the lnterior and others (1962) 16 P.D. 1547.

(5)       Cr.A. 38/61-Moshe ben David Yitzhak v. Attorney-General (1962) 16 P.D. 514.

(6)       Cr.A. 155/59-Yaakov Darai  v. Attorney-General (1960) 16 P.D. 233.

(7)       Cr.A. 24/55-Attorney-General v. Barukh Salmander and others (1954) 8 P.D. 474.

(8)       Cr.A. 558/62-Morris Rabo v. Attorney-General (1963) 17 P.D. 162.

(9)   Cr.A.-234/53 Tel Aviv-Yafo Attorney-General v. Avraham ben Yitzhak HaGoel (1955) 11 P.M. 84.

 

English case referred to:

 

(10)     R. v. Parry and others (1952) 2 All E.R. 1179.

 

Z. Bar-Niv, State Attorney, for the appellant.

B. Shagia for the respondent.

 

OLSHAN P.               The sole issue before us is the construction of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter referred to as "the Ordinance").

 

  Sections 1 and 3 of the said Law define various prostitution offences and prescribe the penalties therefor by the following formulae:

           

"Shall be liable to imprisonment for a term of five years" (sections 1, 2 and 5);

 

"shall be liable to imprisonment for a term of three (five) years"

(section 9);

 

"shall be liable to imprisonment for a term of seven years" (section 3).

 

Then comes section 10 which provides:

 

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him."

 

            In Attorney-General v Weigel (1), the subject of the present hearing, a majority of the judges were of the opinion that section 10 does not prevent the court from applying section 3 (2) of the Ordinance which generally speaking empowers the court, in the event of a person being punishable with imprisonment or fine, to make a probation order instead of sentencing him. Relying on the phrase "shall be imposed" in section 10, the judge in the minority had no doubt that the section places a duty on the court to impose a sentence of imprisonment, either as a sole penalty or in conjunction with another penalty, and that the court is commanded by the legislature, where a person is convicted under section 1, 2 or 3, to impose a penalty and may not let him go free without any penalty, that is to say, that it is impossible to put him on probation in place of imposing a penalty.

           

            According to the interpretation given by the majority therefore the court must first consider in the light of section 3 (2) of the Ordinance whether or not any penalty is to be imposed and only if it thinks that a penalty should be imposed must it be imprisonment. The minority view was that where a person is convicted of a prostitution offence under section 1, 2 or 3 the court is not free to consider whether or not to impose a penalty but is commanded to impose the penalty of imprisonment.

           

            After hearing counsel representing the parties, I have reached the conclusion that the law is with the minority judge. The submissions of Mr. Bar-Niv, the State Attorney, appeal to me for the following reasons.

           

 (1) The words "shall be imposed" appear to me to be in the imperative mood. A distinction must here be made between "imprisonment shall be imposed" and "shall be liable to imprisonment"; in all the sections of the Criminal Code Ordinance, 1936, the penalty-fixing formula is "is liable to" and only in one section "shall be sentenced" (cf. sections 49, 50, 213 and many others together with section 215 before amendment). Ever since the establishment of the State, whenever the first above formula was intended the legislature employed the words "shall be liable to imprisonment" and whenever the second was intended it used the words "the court shall impose" or "shall be imposed".

 

            Where "is liable to" occurs, the convicted person may be punished with imprisonment and the question of its length will only arise when the court comes to the conclusion that a probation order should not be made in place of imposing a sentence. Were the majority's interpretation of section 10 to be accepted, the legislature would not have needed to use the words "shall be imposed" and it could have adopted the formula "he shall be liable...". Section 10 would also then have been unnecessary.

           

            Having found it proper to use the "shall be imposed" formula in section 10 instead of the "shall be liable" formula in section 1, 2 and 3 of the Law, then - and this is a canon of interpretation - the legislature is not to be assumed to have done so inadvertently. According to the interpretation proposed (by the respondent) we must ignore the words "shall be imposed" and read in place thereof "shall be liable".

           

(2) According to that interpretation also, the opening words "Where a person has been convicted..." must be read as if they said something like "Where a penalty has been imposed under section 1,2 or 3, the penalty shall be imprisonment... but conditional imprisonment shall not be imposed". But significance attaches to the words "Where a person has been convicted". They instruct the court what to do with the defendant after conviction, that is, after conviction a penalty is to be imposed and he is not to be allowed to go free without penalty. We are not at liberty to ignore the legislature's formula and replace it with another consistent with the said interpretation.

 

(3) Why the legislature found it right to add the words "but conditional imprisonment shall not be imposed" but not also "no probation order shall  be made", the answer, it seems to me, is that the purpose of the section is to prescribe the obligatory nature of the penalty from among the various penalties found in our law, such as fines, conditional imprisonment and others. It was necessary to exclude conditional imprisonment expressly because according to Shakraji v Attorney-General (2) imprisonment by itself includes conditional imprisonment. Had the legislature not excluded conditional imprisonment a court could comply with section 10 by imposing the latter-a course not welcome to the legislature. On the other hand, a probation order is not a penalty; section 3 (2) of the Ordinance says that "the court may, in lieu of sentencing him, make a probation order". Hence, the court being bound to impose the penalty of imprisonment, it was not essential to mention the Ordinance which enables relief from penalty.

 

(4) Purposively there is no great difference between a probation order after conviction and conditional imprisonment. The object of a probation order was explained in the judgment of my honourable friend, Berinson J., in Weigel (1) at 719, and I have nothing to add. It seems to me that the imposition of conditional imprisonment is also founded on the belief that if the defendant is given the opportunity, he will mend his ways and refrain from his law-breaking. Upon the enactment of the Penal Law Amendment (Modes of Punishment) (Amendment No. 5) Law, 1963, the identity of the two drew even closer (apart from supervision by a probation officer). Section 7 (4) (b) and (5) (b) provide that if a probationer is convicted of another offence during the period of probation the court may sentence him for the offence for which he was placed on probation. That means that exemption from penalty and placing on probation are subject to the possibility of being sentenced for the first offence, if a breach of the probation order occurs or another offence is committed during probation. According to sections 18D and 18F added in 1963, when a further offence is committed, the court is not bound to activate the conditional imprisonment but may extend it for an additional period. In activating the conditional imprisonment, the court may also order that the sentences be concurrent. Conditional imprisonment is thus directed to those instances where there is a belief or expectation that its imposition instead of actual imprisonment will help the defendant to mend his ways. That belief and expectation exist when a probation order is made. I do not however say that this identity of purpose should be decisive in interpreting section 10. If it is clear from this section that the legislature directed the court to impose a term of imprisonment upon an offender convicted under sections 1, 2 and 3, since in spite of its high purpose, the imposition of conditional imprisonment has, on any view, also been forbidden by the legislature.

 

(5) In association with the opening words "Where a person has been convicted", the marginal heading to section 10, "Mandatory imprisonment", means that once convicted of an offence under sections 1, 2 or 3, an obligation arises to impose imprisonment. In general, where the section of a statute is clear, there is no need to refer to the marginal heading; only those who plead that the meaning is obscure will need to do so. In my judgment no such necessity occurs here, but if it does, it supports the conclusion drawn by the minority judge. The question which arises in connection with this submission is the extent to which the marginal heading is part of the law. In Diab v. Attorney-General (3) Silberg J. indicated (at 926 and 928) the difference that exists in this regard between England and ourselves. It has long been normal in England to embellish a statute with headings and marginal headings after it has been adopted by the legislature. Silberg J. held, after comparing Mandatory legislation, that "there is nothing to prevent us from obtaining 'interpretative inspiration' from the headings". He said

 

"We see therefore that everything revolves round the cardinal question whether these headings and 'embellishments' have or have not been brought to the attention of and approved by the legislature, whether they have or have not received official approval. The traditional English view is that for Parliament there is only the archaic statutory roll which leads the reader on without name or description, without marginal headings and punctuation, and anything which it does not or need not include is not part of the statute, a kind of incidental nugatory addition by 'irresponsible' people who have no hand in the law-making of the legislature".

 

The question is therefore what is the situation with regard to Israeli legislation. When a bill is presented to the Knesset, it includes marginal headings. That may be seen from the copies before the Knesset at the second and third readings... . In the bill of the Law so presented, section 10 had the marginal heading "No penalty of a fine alone" and the words "but conditional imprisonment shall not be imposed upon him" did not appear in the body of the section. During the debate the Minister of Justice mentioned that there were lighter penalties as well as probation orders and he proposed that the section be deleted. Others objected to deletion and suggested that the above words should be added and their suggestion was accepted. The Law as adopted and then published contained section 10 in its present form. If the Law in the second and third reading contained marginal headings, it is to be assumed that the value of the heading we are concerned with was the same as that of the others. I do not need to lay down any hard and fast rule as to whether or not the marginal headings are part of the Law since there are decisions on the question in respect of Israeli legislation. In Voider v. Minister of the Interior (4) it was said (at 1551) that

 

"There is no need to deal with the question whether or not marginal headings are part of the Law, since in any event no authority was cited to show that even if they are not, some bar exists against taking them into account when considering the object of the section in connection with its interpretation."

 

In Yitzhak v. Attorney-General (5) the court said (at 523) that

 

"Although possibly sometimes - when the language is not plain enough and ambiguous - headings may help, it is quite a different matter to base on them an additional offence having no connection at all with the clear definition given in the body of the section."

 

It seems to me that here the marginal heading certainly does not help respondent's counsel in his endeavour to replace "shall be imposed" with "shall be liable", or to introduce before "shall be imposed upon him" the words "upon being sentenced".

 

            In Darai v. Attorney-General (6) the appellant was convicted of an attempt to unlawfully cause the death of a person under section 222 of the Criminal Code Ordinance, 1936. Counsel argued that the prosecution must prove "malice aforethought" as in murder and he relied upon the marginal heading "Attempt to murder". That is, he tried to read into the section the element of "malice aforethought" in view of the word "murder" in the heading. He did not succeed. In the case before us indeed the marginal heading is at one with the provisions of the section and not in conflict. Hence words which do not appear therein are not to be introduced.

           

 (6) The Law relating to assaults on policemen, where a minimum term of imprisonment is also provided, has been cited at length. In Attorney-General v. Salmander (7) this Court decided that that Law is lex specialis and its provisions set aside, implicitly if not expressly, the general provisions contained in the Criminal Code Ordinance, 1936, in as far as the two sets of provisions are inconsistent. (The problem there was whether it is possible to impose on an offender convicted under the said Law a fine according to section 42 (1a) or a recognizance to keep the peace according to section 45 of the Criminal Code Ordinance.) It appears to me that the Probation of Offenders Ordinance, 1944, also contains general provisions whilst the Law concerning prostitution is lex specialis. The former was enacted at a time when there were no laws prescribing "mandatory imprisonment". Accordingly, upon the enactment of a special Law on prostitution, section 3 (2) of the said Ordinance must be read subject to this special Law. If it patently emerges from the wording of section 10, in the context of the other sections, that upon a conviction for prostitution the offender receives mandatorily a prison sentence, it cannot be argued that the section must be treated as containing something which it does not contain, only because the legislature did not expressly exclude the application of section 3 (2) of the Probation Ordinance, particularly when this special Law deals with the imposition of penalties whereas the Ordinance deals with probation which is not a penalty.

 

            In Salmander (7) this Court held that the minimum imprisonment prescribed is a penalty which cannot be reduced, that is, it is mandatory, notwithstanding the use of "shall be liable" (and not "shall be imposed"). The meaning of "shall be liable" in the Law there is that an offender may be punished by imprisonment up to the prescribed maximum but must be punished with the minimum term of imprisonment.

           

            In view of the decision in Salmander we must say, and we may not ignore the fact, that the question whether the offender may be held free of all penalty and be put on probation according to the Ordinance was not raised in this appeal. Relying on Attorney-General v. HaGoel (9) - that the provisions of the Law relating to assaults on policemen do not prevent making a probation order instead of imposing a penalty - one may say that "shall be liable" to a minimum term of imprisonment (as obligatory) becomes operative only after the court takes the view that a probation order is not to be made in place of imposing a penalty, since this Law does not employ the language of section 10 ("Where a person has been convicted... shall be imposed"). There is no need to take up any position on the merits of the argument itself.

 

(7) Section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, abolishes the death penalty for murder and provides that "Where a person has been convicted of murder, the court shall impose the penalty of imprisonment for life, and only that penalty". Here everyone, other than respondent's counsel who must differ if he is to be consistent, agrees that the possibility of making a probation order instead of imposing the penalty is excluded. The argument here is, however, that that is because of the addition of "and only that penalty". This argument, it seems to me, is groundless. If a probation order is not a penalty, then the words cited do not form a provision excluding probation as an alternative to imposing the penalty. Consistently with the suggested interpretation of section 10, this section would also have to be read as if providing "Where a person has been convicted of murder, and the court is of the opinion that he is not to be exempted from penalty and put on probation, the court shall impose the penalty of imprisonment for life, and only that penalty". That is, if a penalty is imposed it must only be life imprisonment. It follows that there is no connection between the words added and the prohibition against making a probation order. The prohibition stems from the words "Where a person has been convicted... the court shall impose", which is similar to the language used by the legislature in section 10, and not from the words "and only that penalty". If the fact that probation has no place in murder is not disputed, then I see no justification for adopting a different interpretation in section 10.

 

(8) As I have said, "shall be liable" is generally used by the Israeli legislature in place of the Mandatory "is liable" and "shall be imposed upon him" in place of "shall be sentenced". That there is a difference in meaning between the two phrases used by the Israeli legislature is not to be disputed, and I have not heard of any other meaning attributed to "shall be imposed upon him" to distinguish it from "shall be liable". Prostitution offences were specified in many of the sections of the Criminal Code Ordinance, 1936. In treating some of these offences with particular stringency because they are increasingly plaguing the country, the legislature repealed the sections of the Criminal Code Ordinance, 1936, and replaced them with the Law in question, as lex specialis. In this Law section 10 is devoted to the offences mentioned in sections 1, 2 and 3. Although the penalties for offences under sections 5. 6 and 9 were increased the normal course was followed and words of command or mandate were not employed. With regard to these latter offences nothing was said limiting the discretion of the court in choosing the penalty or even in making a probation order. The intention of the legislature, it seems to me, is thus clear. What is involved is the principle of strict construction in favour of the offender, and this principle is not impaired since any other interpretation of section 10 is artificial and cannot be sustained without introducing words which the section does not contain.

 

(9) Assuming that after enacting the Probation of Offenders Ordinance the Mandatory legislator had amended section 215 of the Criminal Code Ordinance by providing that "upon conviction shall be sentenced to imprisonment for life", in my judgment there would have been no room for the argument that a probation order could be made instead of life imprisonment. The Probation Ordinance is not a "constitutional" law in the light of which all other law is reviewed. That being so, the two Laws must be reconciled, having their respective legislative intent in mind. Plainly, the 1944 Probation Ordinance does not embrace any intention to give section 3 (2) an entrenched position for the future. Had that been the intention, it would have been wholly invalid from the viewpoint of constitutional law. It is therefore to be understood that as regards the future the intention of the Ordinance was that use of section 3 (2) is subject to every new Law which can expressly repeal it or restrict its thrust with regard to some particular offence by prescribing that when an offender is convicted thereof he is to be sentenced by imposing the penalty of imprisonment. But such an intention would have to be clearly expressed in the new Law. Thus we return to the meaning of section 10 which appears to me to be so clear that we may not say to the legislature that, although the meaning is clear, we will ignore the clear intention simply because it did not expressly state that section 3 (2) of the Probation Ordinance is not to apply. To that the legislature would say that the presumption is that it was aware of section 3 (2) of the Ordinance and the failure to mention the necessary words - rightly or not, and as I have said above I think rightly - is not a ground justifying disregard of the clear meaning of section 10.

 

            The many reasons for rejecting the suggested interpretation of section 10 are not evidence that it is not clear or is ambiguous. The many reasons are the consequence of the many arguments advanced which in themselves do not prove that the intention of the legislature is not plain.

 

            In my judgment the appeal should be granted and imprisonment imposed upon the respondent.

           

BERINSON J.                        In the previous hearing of this matter we heard exhaustive arguments from the Deputy State Attorney, Mr. Bach, and the late Mr. Toussia-Cohen on the main issue, the interpretation of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, and its relation to section 3 (2) of the Probation of Offenders Ordinance, 1944. The majority and minority judgments appear to me not to have passed over any point worthy of attention, In this Further Hearing the State Attorney appeared and repeated in fact these arguments but more expansively and with the coherence normally characteristic of him. I have no intention of depreciating the value of his submissions by saying briefly that I have found nothing to move me to change my previous view which I explained at length in the earlier hearing. I shall therefore confine myself to a number of brief observations.

 

            In this Further Hearing the question is whether section 10 of the Prostitution Offences Law can stand alongside section 3 (2) of the Probation of Offenders Ordinance, 1944, so that the provisions of the latter are applicable notwithstanding section 10, or whether section 10 ousts the application of section 3 (2). The question turns on the meaning to be given to "offence punishable with imprisonment" in section 3 (2). The view has been voiced that "punishable" refers only to offences for which the court may impose imprisonment and not to offences for which imprisonment is mandatory. I cannot agree to this interpretation. In my opinion, the phrase involved describes a group of offences in respect of which a probation order may be made instead of imposing a penalty (imprisonment or fine) and it is immaterial how the court comes to impose the penalty on the offender, whether permissively or mandatorily. An "offence punishable with imprisonment" does not cease to be such when the imprisonment is mandatory.

           

            The President says that had it not been the intention of the legislature to direct the court to impose a penalty, and precisely the penalty of imprisonment, for prostitution offences under sections 1- 3 of the Law to deny the possibility of making a probation order in place of imposing a penalty, it would not have adopted the imperative mood in section 10, "shall be imposed", and generally there would have been no need for this special section since it had already prescribed for the specific offences the maximum penalty of imprisonment by the terms "shall be liable to imprisonment". I have another explanation. Section 10 is not superfluous in the least because it is intended to limit the kinds of penalties which a court is empowered to impose for prostitution offences. When it imposes a penalty, it must impose the penalty of imprisonment (whether or not in conjunction with another penalty) but no other penalty can serve as a substitute to imprisonment. That, in my opinion, is the meaning of the mandatory imprisonment in section 10. It does not, however, negative the alternative of putting the offender on probation which is not a penalty and may replace it.

 

            The State Attorney persists in arguing that if section 10 of the Prostitution Offences Law does not entirely exclude the possibility of making a probation order, then the same rule should apply also to murder with regard to which the legislature employs exactly the same terms in directing in section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, that where a person has been convicted of murder the court shall impose life imprisonment and that alone. The terms of this Law indeed make it difficult psychologically to accept the view that I have propounded, although an important difference exists between the two Laws. In the first, the penalty is mandatory imprisonment (with or without some other penalty) but the court is completely free to fix the term of imprisonment /is no other penalty. If, however, it is said that this important difference is not determinative for the question before us, then, there being no option, I would not hold back from saying that both should be treated alike and in both a probation order may be made instead of imposing imprisonment. Until the adoption of the Law abolishing the death penalty for murder no difficulty occurred. When the Probation of Offenders Ordinance was enacted in 1944, it was clear that it did not apply to murder. At that time and until its abolition in 1954, death was the only penalty for murder and the Ordinance did not apply because it only covered offences for which the penalty was imprisonment or fine. When the Knesset abolished the death penalty and replaced it with life imprisonment but did not say anything about probation, murder also became "an offence and punishable with imprisonment" within the meaning of section 3 (2) of the Ordinance. It is difficult to imagine a case in which the court would in fact exercise this power but theoretically it is available as it then was in the case of manslaughter the penalty for which was life imprisonment, and today as well when it is a term of 20 years' imprisonment.

 

            In my earlier judgment I explained the view why it cannot be contemplated that by adopting section 10 of the Prostitution Offences Law the legislature intended to avoid indirectly the possibility of placing a person upon probation instead of sentencing him to imprisonment, and I do not need to go over that again. Had the Knesset so desired it would have needed to say so expressly, as it did regarding the non-imposition of a conditional sentence in place of actual imprisonment.

           

            My view remains as it was and in my judgment the Further Hearing should be dismissed and the majority opinion of the previous hearing upheld.

           

HALEVI J.                  The question before us is the relationship between section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962 (hereinafter referred to as "the Prostitution Offences Law") and section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter called "the Probation Ordinance"). Are these two enactments compatible? And if not, which takes precedence?

 

            Sections 1, 2, 3, 5, 6 and 9 of the Prostitution Offences Law define various offences and prescribe for each the maximum penalty which an offender may receive by the formula "shall be liable". Regarding offences under sections 1-3 the legislature goes on to prescribe by section 10, that "where a person is convicted... a penalty of imprisonment shall be imposed..., either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed". The meaning of this provision - and in this regard I join in the view of the President and Cohn J. without hesitation - is that mandatory imprisonment is laid down for the offences mentioned.

           

            On the other hand section 3 (2) of the Probation Ordinance provides that "where any person is convicted... upon information of an offence punishable with imprisonment or fine, and the court is of the opinion that, having regard to the circumstances, including the character, the antecedents, age, home surroundings, health or mental condition of the offender, the nature of the offence and any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him, make a probation order".

 

            In view of these two sections, the question arises of the relationship between section 10, imposing mandatory imprisonment, and section 3, empowering the court to release an offender on probation instead of sentencing him to prison. Can the two sections exist side by side or are they conflicting? And if they are conflicting, which takes precedence? Opinions are divided and each has some foundation.

           

            One view is that neither affects the other since they concern different things - "a penalty" and "probation" which is not a penalty. Section 10 prescribes "mandatory imprisonment" as the penalty for any person convicted of an offence under section 1 or 2 or 3 of the Prostitution Offences Law, thus restricting the judge's discretion in choosing between different penalties - imprisonment, conditional imprisonment or fine - when sentencing the offender. Section 3 (2) on the other hand does not affect the content of the sentence and the kind of penalty which is to be imposed. It allows the judge in given circumstances to refrain from sentencing and instead make a probation order. According to this outlook there is no conflict between the two sections, but if any substantial inconsistency does exist, section 3 (2) of the Probation Ordinance prevails.

           

            Another view urges that section 10 of the Prostitution Offences Law contradicts and sets aside section 3 (2) of the Probation Ordinance. The provision in section 10 that "where a person has been convicted...a penalty of imprisonment shall be imposed" obliges the judge convicting the defendant to impose a penalty and that penalty has to be imprisonment. The judge will not be doing his duty if he exercises his normal power under section 3 (2) of the Probation Ordinance "to release the offender on probation... in lieu of sentencing him". The duty to impose imprisonment upon any one convicted of one of the offences referred to in section 10 deprives the judge of the power to put the offender on probation. Inevitably, according to this view, in the conflict between section 10 of the Prostitution Offences Law and section 3 (2) of the Probation Ordinance section 10 prevails.

           

            The matter is therefore open to debate but upon consideration the first view seems to me to be preferable to the second. My reasons are as follows.

           

            The Prostitution Offences Law is to be read and understood against the background of the Penal Law Revision (Modes of Punishment) Law, 1954. Section 1 of that Law provides that

           

"A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence".

 

Section 10 provides that

 

"Where the law prescribes imprisonment and does not prescribe a fine, the court may -

...        

(3)...impose imprisonment as prescribed or a fine not exceeding IL 5,000 or both such penalties; provided that where the law makes imprisonment obligatory or prescribes a minimum period of imprisonment, imprisonment shall not be replaced by a fine".

 

Section 18 before amendment in 1963 provided that

 

"(a) Where the court may impose a penalty of imprisonment, it may, in lieu thereof, impose conditional imprisonment".

 

And after amendment, that

 

"(a) Where the court imposes a penalty of imprisonment, it may, in the sentence, direct that whole or part of such penalty shall be conditional"

 

Section 25 as amended provides that

 

"The court which has convicted a person may, in addition to the penalty imposed, order the person sentenced to bind himself by recognizance to abstain from an offence for such period not exceeding three years as the court may prescribe".

 

            These sections taken together prescribe the great rule as to modes of punishment in Israel, that every penalty prescribed by any criminal law is a maximum penalty and that the legislature entrusts to the judge the task to prescribe in his discretion the penalty appropriate to each case both as regards the kind of penalty and as regards its extent, as appears to him to be right and proper. Section 10 of the Prostitution Offences Law makes an exception from this general rule. Apart from this section, a court convicting someone under section 1, 2 or 3 of the Law might, in view of the sections of the Modes of Punishment Law set out above, impose a penalty of imprisonment as prescribed in the section dealing with the offence in question or conditional imprisonment or a fine of up to IL 5,000 or a combination of such penalties with or without recognizance. But then section 10 comes along and provides that

           

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him".

 

The effect and significance of section 10 is to restrict the judge's freedom of choice as between the kinds of penalties mentioned in the Modes of Punishment Law to imprisonment with or without "another penalty" such as fine or recognizance (and according to Rabo v. Attorney-General (8), also conditional imprisonment). The sole penalty prescribed by section 10 is (unconditional) imprisonment for the offences in question and in this sense the marginal heading that sums up the section, "Mandatory imprisonment", is correct.

 

            As for the wording of section 10 - "Where a person is convicted of an offence... imprisonment shall be imposed upon him" - it is proper to notice the similar wording of section 1 of the Modes of Punishment Law - "A court which has convicted a person of an offence may impose on him any penalty" (Cf. also section 10 of this Law - "Where the law prescribes imprisonment ... the court may impose"). This parallelism to my mind strengthens the view I have taken that section 10 of the Prostitution Offences Law is to be read in the light of sections 1, 10 and 18 of the Modes of Punishment Law. In order to depart from the maximum-penalty rule laid down in the Modes of Punishment Law (sections 1 and 10) section 10 of the Prostitution Offences Law says that "Where a person has been convicted of an offence... a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty". In order to exclude section 18 of the Modes of Punishment Law in its original version, section 10 employs the same terms but adds "but conditional imprisonment shall not be imposed upon him". The phrase "Mandatory imprisonment" in the margin to section 10 repeats also the language of the end part of section 10 of the Modes of Punishment Law, that "where the law makes imprisonment obligatory... imprisonment shall not be replaced by a fine".

 

            It seems to me that the main purpose of section 10 is merely to exclude the offences mentioned therein from the provisions of the Modes of Punishment Law which give the court freedom of choosing between kinds of punishment in its discretion. Section 10 varies the normal "modes of punishment" by prescribing "mandatory imprisonment" for given offences. But it does not deal with or affect the placing of offenders on probation. As my honourable friend, Berinson J., said, probation is an "alternative" to penalty, a point stressed in section 3 (2) by the words "in lieu of sentencing him". According to that section, the judge must before making the probation order explain its meaning to the offender and inter alia that "if he fails... to comply therewith or commits another offence, he will be liable to be sentenced for the original offence". When sentence is pronounced for the original offence (in the event of a breach of the probation order etc.) section 10 of the Prostitution Offences Law will apply and imprisonment will be imposed. Section 10 does not set aside the provisions of the Probation Ordinance nor compel the judge to give a sentence since section 3 (2) of the Ordinance empowers him to abstain from doing so and to put the offender on probation. Section 10 lays down provisions binding as regards the content of the sentence but not as regards to the circumstances in which it is or is not to be given according to an enactment not referred to therein.

           

            Section 3 (2) of the Probation Ordinance applies to every offence "punishable with imprisonment or fine". It cannot be argued that these words are confined to an offence for which just"imprisonment or fine" are prescribed, excluding mandatory imprisonment. The meaning is undoubtedly "an offence punishable by imprisonment or an offence punishable by fine". The word "punishable" also does not restrict one to a penalty which is not "mandatory". Section 3 (2) of the Probation Ordinance was copied with some small variations from section 1 (2) of the (English) Probation of Offenders Act. 1907. which provides inter alia that

 

"Where any person has been convicted on indictment of any offence punishable with imprisonment. ... the court may, in lieu of imposing a sentence of imprisonment, make an order etc.".

 

Until the enactment of the Criminal Justice Act, 1948 (which replaced the 1907 Act) there was no general statute in England which enabled all the courts to impose a fine instead of imprisonment for commission of a felony. Section 13 of the Criminal Justice Act provides that

 

"Any court before which an offender is convicted on indictment of felony (not being a felony the sentence for which is fixed by law) shall have power to fine the offender in lieu of or in addition to dealing with him in any other manner in which the court has power to deal with him".

 

In R. v. Parry (10) Lord Goddard C.J. (at 1180) explained the history of section 13 as follows.

 

"The history of that section and the reason for importing it into the Criminal Justice Act, 1948, is well known. There were certain felonies, principally those under the Larceny Act, 1916, in which a court of summary jurisdiction had power to fine. That was because it was considered desirable in the case of petty thefts that a court should be able to fine the offender and not send him to prison, but in cases which came before a court of assize or quarter sessions on indictment there was no power to fine until this Act of 1948, except in the case of manslaughter. The reason for that was that the offence of manslaughter varies enormously in seriousness according to the circumstances in which it is committed. Over and over again judges have had to deal at assizes with an offence which technically was a felony, where they would have been glad to have imposed a fine had there been power to do so. The court was often left in the position that it had either to send a person of hitherto good character to prison for a comparatively small offence or else bind him over, which was to inflict no punishment. That is the reason why Parliament by the Act of 1948 gave to courts trying cases on indictment the same powers as courts of summary jurisdiction formerly had in certain cases and now have in all cases of felony, i.e., the power of imposing a fine instead of sending to prison."

 

            Thus until 1948 the penalty for most felons in England was "mandatory imprisonment" in the sense of the last part of section 10 of the Modes of Punishment Law and section 10 of the Prostitution Offences Law. Nevertheless the English courts were never denied the power to release a person convicted of any offence apart from murder by binding him over, with or without sureties, to come up for judgment, a course which served as an alternative to sentencing him and imposing mandatory imprisonment. (See the judgment of Lord Goddard in the case cited above and Archbold, Pleading, Evidence and Practice in Criminal Cases, 35th ed., paragraph 722.) Another alternative to sentencing was introduced by section 1(2) of the Probation of Offenders Act, 1907 (mentioned above) which empowered the courts to release on probation any person convicted of an offence "punishable with imprisonment", other than those for which the penalty was death. In view of the statutory situation in England until 1948, "punishable with imprisonment" in section 1 (2) of the Probation of Offenders Act, 1907 (which served as the pattern for drafting of section 3 (2) of the 1944 Probation of Offenders Ordinance) included also, and mainly, offences for which imprisonment was mandatory. The intention of the English legislature was to give the courts a new alternative (far more important than the old one of binding over) to imposing mandatory imprisonment on an offender who seemed to merit and be suitable for probation. Throughout the subsistence of the original English Probation Act (from 1907 until 1948) there existed therefore side by side "mandatory imprisonment" and "probation" applicable to the same offences, and not only were they not in conflict but complementary, serving as the legislature had intended, as alternative methods for the courts. There is no reason for attributing a different relationship between mandatory imprisonment under section 10 of the Prostitution Offences Law and probation under section 3 (2) of the Probation Ordinance.

           

            The English Probation Act of 1907 was, as I have said, replaced by the Criminal Justice Act of 1948, section 3 (1) of which provides inter alia that

           

"Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion etc. ... the court may, instead of sentencing him, make a probation order"

 

            Section 80 of the same Act defines

 

" 'Offence the sentence for which is fixed by law' means an offence for which the court is required to sentence the offender to death or imprisonment for life or to detention during His Majesty's pleasure".

 

An offence "for which the court is required to sentence the offender to... imprisonment for life" is non-capital murder under section 9 of the Homicide Act, 1957. Section 3 (1) of the 1948 Act does not directly affect the matter before us and I have only mentioned it in order to show that even under existing English law, a probation order can be made in every criminal offence apart from murder and those for which life imprisonment is prescribed.

 

            I see no need to express an opinion regarding the interpretation of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954. Even if the legislature did not realise the need for amending the Probation Ordinance as a result of the abolition of the death penalty for murder there is yet a vast difference between life imprisonment as a mandatory penalty (see section 2 of the Modes of Punishment Law) and mandatory imprisonment for one day prescribed by section 10 of the Prostitution Offences Law. Whatever the position regarding mandatory life imprisonment, there is nothing in section 3 (2) of the Probation Ordinance to suggest that mere "mandatory imprisonment" with which we are concerned excludes an offence from the operation of the Ordinance.

           

The existing legislation regarding the modes of punishment is not of one piece and even if all the difficulties concerning the different enactments in this area have as yet not been resolved, no far-going conclusions in law are to be drawn from that. Accordingly it appears to me that one should not infer from the lack of reasonableness in applying the Probation Ordinance to murder for which the penalty is mandatory life imprisonment, that this Ordinance does not apply to every other offence the penalty for which is mandatory imprisonment.

 

            Since section 3 (2) of the Probation Ordinance does not distinguish between imprisonment which is mandatory and that which is not, the legislature's intention to deny the application of the Probation Ordinance, if it had such intention, should have found expression in section 10 of the Prostitution Offences Law. In order to ascertain the legislature's intention I do not need to rely on the speeches in the Knesset during the debate on the section. According to the usual rules of interpretation, express statutory provision is necessary to negative lawful judicial powers, particularly in criminal matters. The judicial power under section 3 (2) of the Probation Ordinance to release a person convicted on information for an offence punishable by imprisonment and to put him on probation is not negated by any express provision of section 10 of the Prostitution Offences Law. In the judgment of my honourable friend, Cohn J., in Weigel (1) the legislature's intention to deny the existing powers under the Probation Ordinance is implied from the word "Where a person has been convicted... a penalty of imprisonment shall be imposed upon him", which he construes as "Where a person has been convicted... a penalty of imprisonment shall be imposed upon (but he shall not be released on probation) and the penalty shall be imprisonment (and no other penalty)". With all respect, this seems to me mere inference since there is no "automatic penalty". Section 10 does not say that "notwithstanding the provisions of any other enactment" the penalty of imprisonment shall be imposed. In my view, so fundamental a matter as the setting aside in part of the method of probation cannot rest on inference without express statutory provision, since it restricts the powers of the court, the rights of the individual in criminal matters and the functioning of a probation service intended to rehabilitate the offender and turn him into a useful citizen.

 

            Nevertheless I do find myself bound to stress what my honourable friend, Berinson J., said at the end of his judgment in Weigel, that in offences of the kind in question it will be "most rare" for the court actually to exercise its power to place an offender on probation. The Prostitution Offences Law of 1962 was intended to treat procurers of various kinds with severity and it was found fit in the public interest to increase the penalty to five or seven years' imprisonment, to make imprisonment mandatory and to direct that it should not be commuted to conditional imprisonment. Probation officers and judges would make the Law a sham, were they to go on using probation for offenders who come within section 10. I have mentioned probation officers since under section 3 (2) of the Probation Ordinance, as amended, a court is not to make a probation order until it has received the opinion of a probation officer. Moreover, under section 19(a) of the Modes of Punishment Law, the court may, before imposing a penalty, require a written report by a probation officer, and under section 19(b), as amended, the court may not impose a penalty of unconditional imprisonment on an offender who had not reached the age of 21 at the time when the offence was committed until such a report has been received. Section 19(c) provides that "in a report as aforesaid, the probation officer may recommend to the court the type of penalty which, in his opinion, offers prospects of reforming the prisoner". Thus the probation officer plays an important role when the court effectuates probation and in this sense he is "a partner of the judge", although it is the latter who has the last word. It is in general difficult for an appellate court to interfere with the discretion of a judge who decides to place an offender on probation, and the question whether the learned District Court judge in the present case was right does not arise. In any event, apart from exceptional instances, the right place for procurers and those who promote prostitution is prison.

 

            For these reasons I propose to confirm the decision of the majority in Weigel (1) and to dismiss the appeal.

           

MANNY J.                 I concur in the judgments of my learned brothers, Berinson J. and Halevi J., and join in the conclusion they have reached.

 

COHN J.                     I disagree with the premise of my honourable friend, Halevi J., that section 10 of the Penal Law Amendment (Prostitution Offences) Law is to be read and construed against "the background" of the Penal Law Revision (Modes of Punishment) Law. For me, the opposite is the case: the entire object of section 10 is only to take out the penalties mentioned therein from the rules prescribed in this Law regarding punishment for all other kinds of offences. It is very true that section 10 is not intended to affect the rule of the maximation of penalties and to this extent the general law applies to it, but it is intended expressly and unambiguously to affect the alternation of penalties, and just as it decrees "mandatory imprisonment" excluding fine and conditional imprisonment, it also decrees imprisonment excluding modes of treatment which do not come within the meaning of penalty.

 

            Likewise I do not draw the analogy which my honourable friend, Halevi J., has drawn between "may impose" in the Modes of Punishment Law and "shall be imposed" in the Prostitution Offences Law. I agree wholly with the learned President that the imperative of "shall be imposed" is not to be ignored, in contrast to the permissiveness and discretion of "may impose". Here as well, the opposite is the case: whilst the Modes of Punishment Law gives the judge a discretion as to the severity of the penalty he may impose, the Prostitution Offences Law denies him that discretion since, whatever he may wish to do, imprisonment shall be imposed.

 

            As I suggested in my previous judgment in this matter, it seems to me that the question of interpreting section 3(2) of the Probation of Offenders Ordinance, 1944, does not arise at all. The appellant's fate must, in my opinion, be decided according only to the interpretation of section 10 of the Prostitution Offences Law; and on the correct interpretation of this section there is no place for applying this provision of the Probation Ordinance whatever its interpretation, because section 10 excludes the application of any statutory provision which empowers the court to deal with a person convicted of an offence under the Law in any manner other than by imposing imprisonment alone.

           

            Accordingly I come to the same conclusion as the learned President and adhere to his view.

           

Further Hearing dismissed by a majority and the majority decision in the previous hearing upheld.

 

Judgment given on October 31, 1963.

 

* Under section 8 of the Courts Law, 1957, a Further Hearing by five or more judges of the Supreme Court will be granted "in view of the importance, difficulty, or novelty" of a ruling of the Supreme Court sitting with three judges.

CrimA 6/50 Levitt v. Angel 1
Crim.A. 6/50 
LEVITT 
v. 
ANGEL 
In the Supreme Court Sitting as a Court of Criminal Appeal 
[June 30, 1950] 
Before: Dunkelblum J., Olshan J., and Cheshin J. 
 Contempt of Court - Civil and criminal contempt - Contempt of Court Ordinance,
1929 s. 6(1) - Criminal Code Ordinance, 1936, s. 143 - Object of civil contempt 
proceedings to enforce compliance with order of court and not to punish offender 
- Differences between English and Israel Law.
 The appellant, who had allowed third parties to occupy premises in breach of an injunction restraining 
him from so doing was convicted of contempt of court under the Contempt of Court Ordinance and was 
sentenced to a fine of I.L. 250 or three months imprisonment. This sentence was imposed on the appellant 
by the District Court not for the purpose of inducing him to comply with the terms of the injunction, which 
had become impossible, but as a punishment for its breach. 
 
 Held, allowing the appeal, that the purpose of the sanctions in the Contempt of Court Ordinance is to
enforce the carrying out of an order of court and not to punish a person held in contempt, for which other 
legislation existed. 
 
Palestine case referred to : 
(1) Cr. A. 2/47; Taasiya Chemit Tel Aviv Ltd. v. Kupat Cholim shel Hahistadruth Hakialit 
shel Haovdim Haivrim and another; (1947), 14 P.L.R. 348. CrimA 6/50 Levitt v. Angel 2
English cases referred to : 
(2) Re Clements, Costa Pica Repablic v. Erlanger; (1877), 46, L.J. Ch. 375. 
(3) In re Maria Annie Davis; (1888), 21 Q.B.D. 236. 
(4) Seaward v. Paterson; (1897) 1 Ch. 545. 
(5) Scott (otherwise Morgan) and another v. Scott; (1913), A.C. 417. 
(6) Wellesley v. The Duke of Beaufort; (1831), 39 E.R. 538. 
(7) Re Newbery; (1835), 111 E.R. 725. 
Miller for the appellant. 
Metosevitch for the respondent. 
OLSHAN J. The respondent, the plaintiff in Civil Action, 839/ 49, which is pending in the 
District Court of Tel Aviv, obtained an injuction from that court in the following terms: 
"After having considered the petition of the said plaintiff, and after 
hearing the arguments of counsel, it is decided to issue an interim order 
prohibiting, until the conclusion of the case, the respondent, his servants 
or agents from delivering possession of the said room to any person or 
persons who are not today living in the said room, in the event of its 
being vacated by the respondent." 
 The respondent applied to the lower court to impose a fine or imprisonment upon the 
appellant (the defendant in the said case) under section 6(1) of the Contempt of Court 
Ordinance, 1929,1) by reason of his having disobeyed the order referred to above . 
 
 The learned judge who dealt with the application found the following facts : 
 
 At 6 a.m. on December 1, 1949, the appellant vacated the room in question and at the 
same time a number of people moved their furniture into the room with the appellant's 
permission. A few hours later, after all the persons concerned had been brought to the 
Police Station, some of the trespassers shouted at the appellant and demanded the return of 
 
1) For text of s. 6(1). See infra p. 36. CrimA 6/50 Levitt v. Angel 3
"the money". The appellant had in fact handed the keys to the respondent before this, but 
the learned judge was satisfied that this was an act of deceit designed to cover up his breach 
of the injunction referred to. 
 
 It would appear that the persons referred to had vacated the room after the 
intervention of the police, but had returned a few hours later. 
 
 On December 16, 1949, the learned judge imposed upon the appellant : "a sentence of 
a fine of I.L. 250 or imprisonment for three months, on condition that after the first 
respondent (that is to say, the appellant in this appeal) shall have served at least one third of 
the imprisonment above mentioned he shall be entitled to apply to court for a reduction of 
the sentence, and the court will no doubt take into account his efforts to remedy the damage 
caused by him. 
 The persons who entered the room without permission were joined as parties to the 
above application, and an order was made against some of them directing them to vacate 
the room within twenty four hours. This order, however, was not directed against the 
appellant. He was sentenced, but no order to vacate the room was made against him, 
because as the learned judge pointed out in his decision, "it is possible that the appellant no 
longer has any direct control over those in possession of the room, and therefore it would 
not be proper to compel him directly to enforce the order.'' 
 
 These are the facts upon the basis of which this appeal against the order dated 
December 16, 1949 has been brought. 
 
2. Had it still been possible for the appellant to rectify the situation and to give effect to the 
injunction at the time the fine was imposed upon him, and had the fine been imposed upon 
him in order to compel him to obey the injunction, we should have found nothing wrong in 
the decision of the learned judge. In this case, however. a punishment has been imposed 
upon the appellant for an offence committed by him without there being any danger, so far 
as he is concerned, of being tried a second time should he persist in his wrongful conduct. 
This, moreover, was done under section 6(1) of the Contempt of Court Ordinance, not CrimA 6/50 Levitt v. Angel 4
under normal criminal procedure, but under the procedure laid down in that section of the 
Ordinance. 
 An important question arises, therefore, in regard to the meaning and purpose of 
section 6(1) of the Contempt of Court Ordinance. The question is : does this section apply 
when the purpose is to punish a wrongdoer for failure to obey an order of court, or is it 
intended to impose a fine or imprisonment in order to compel a wrongdoer to obey such an 
order? 
 
 It would appear from the decision of the learned judge that he accepts the former 
alternative, for it is for this reason that he specifically imposed "a punishment" upon the 
appellant and discharged him from the responsibility of obeying the order in the future. It is 
for as, therefore, to determine whether this approach of the learned judge is correct. 
 
3. It would seem that in applying section 6(1) the learned judge followed the practice of the 
courts in England. 
 English law recognises two forms of contempt of court : 
 (a) Criminal Contempt of Court - where the course of justice is impeded by means of 
disturbances, by words or acts. 
 (b) "Contempt of Court affecting procedure" which is usually also called Civil 
Contempt of Court, where orders are disobeyed, with the result that the rights of 
the individual are defeated. 
 Contempt of Court of the first class is a misdemeanour which renders the wrongdoer 
liable to be charged, as in the case of any other offence. 
 
 Contempt of Court of the second class - where there has been disobedience of an order 
of court - is a matter between the parties, and results in the invoking of sanctions against the 
party who committed the breach of the order, in order to compel him to obey such order. 
There is no element of punishment in such sanctions as there is for a criminal offence. If the CrimA 6/50 Levitt v. Angel 5
disobedience is intentional and wilful it assumes a criminal character, and is then liable to 
become a matter between the state and the wrongdoer. For so long as the contempt does 
not assume a criminal character there is no room for the imposition of a punishment, but 
only for the taking of steps to enforce compliance with the order. (See Halsbury, Laws of 
England, Second Edition, vol. 7, p. 24.) 
 
 In order to punish contempt which contains a criminal element, it is the practice of the 
English courts to exercise their inherent powers. Unlike the case where o wrongdoer is 
charged with contempt upon a charge sheet the court is entitled, when exercising its 
inherent powers, to impose upon a wrongdoer a punishment of a fine or imprisonment 
without any limitation. The wrongdoer is liable to be sent to prison for an unspecified 
period, except that he may apply to court from the place of his imprisonment for an order of 
release. The ordinary criminal procedure is no longer often employed for the trial of a 
wrongdoer for the misdemeanour of contempt of court. (See Halsbury, vol. 7, p. 3, note 
(e)). It is interesting, nevertheless, to point out that the judges do not regard the use of this 
inherent power favourably, when there is no compelling reason to refrain from using the 
ordinary criminal procedure. In re Cletments and Costa Rica Republic v. Erlanger (2) 
Jessel M.R. said : 
 
"This jurisdiction... being practically arbitrary and unlimited should be 
most jealously and carefully watched and exercised, if I may say so, with 
the greatest reluctance and the greatest anxiety on the part of Judges to 
see whether there is no other mode which is not open to the objection of 
arbitrariness." 
 
 Criticism has been leveled particularly against the imprisonment of a wrongdoer for an 
unspecified period for acting contrary to an order of court, when it is not within his power 
to remedy the damage done. See the remarks of Mathew J. in Inre Maria Annie Devis (3) 
who said : "It should be borne in mind that contempt of court is a criminal offence, 
punishable as a misdemeanour by fine and imprisonment or both." 
 
 There is a distinction, therefore, between the imposition of a punishment for 
disobedience of an order of court and the taking of steps to enforce obedience to an order. CrimA 6/50 Levitt v. Angel 6
In England this distinction is not important since in both cases the courts deal with the 
matter in the exercise of their inherent powers; and because in the absence of a statutory 
provision no question arises there as to which section, or which law, is to be applied to the 
different classes of contempt of court. The court in England will exercise its powers 
according to the circumstances of each case brought before it. 
 
4 The question therefore arises whether, in view of section 6(1) of the Contempt of Court 
Ordinance, the courts of this country may act in the same manner as the English courts. 
May section 6(1) of the Contempt of Court Ordinance also be applied where the imposition 
of a five or imprisonment is required not in order to secure the carrying out of the order by 
the party who committed a breach of that order, but for the sole purpose of inflicting a 
punishment? In say opinion the answer to this question is in the negative. The reasons which 
have led me to this conclusion are as follows : 
 (a) Section 6(1) does not speak of a fine or imprisonment as of a punishment which is 
imposed for a criminal offence, but as a means of compelling one of the parties to 
obey an order of court - that is to say, "to compel him until he says that he is 
willing." 
 (b) Section 8 of the Contempt of Court Ordinance does not simply lay down that 
there is a right of appeal from a sentence imposed under section 6(1), but provides 
a right of appeal "on the same conditions as an appeal from a criminal judgment". 
In other words, it is only for the purposes of appeal that a decision under section 
6(1) imposing a fine or imprisonment is similar to a criminal judgment. The word 
"penalty" in section 8 does not alter the position. That word refers to a decision 
imposing a fine or imprisonment in order to enforce obedience to an order, and 
affords no proof that section 6(1) refers to a punishment which is imposed for a 
criminal offence. In the same way, for example, the legislature used the same word 
"penalty" in the Stamp Duty Ordinance in imposing a fine on a person who has not 
impressed the amount of adhesive stamps as required by law, despite the fact that 
an act such as this is not included in section 81 of the Ordinance, which lists the 
criminal offences committed in regard to the provisions of the Stamp Laws. 
Moreover, in section 5 of the original Contempt of Court Ordinance of 1924, CrimA 6/50 Levitt v. Angel 7
which conferred a right of appeal from the decisions of the courts under other 
sections of the same Ordinance as well, the distinction between section 4 (section 
6(1) of the 1929 Ordinance) and the remaining section was intentionally 
emphasized. 
 In regard to decisions under the remaining sections the Ordinance speaks of 
"an appeal... from a conviction and sentence...", whereas in regard to decisions 
under section 4 it provides "an appeal from a judgment...". 
 
 (c) It would appear from the Contempt of Court Ordinance that the legislature did not 
intend to leave the maximum punishment which may be imposed upon an offender 
to the discretion of the judge. In section 3 a maximum punishment of a fine of I.L. 
5 or imprisonment for one month is laid down; in section 4 a fine of I.L. 100 or 
imprisonment for one year or both these punishments is provided for; in section 5, 
imprisonment for one month. In section 6(1), however, no maximum has been laid 
down. It follows, therefore, that the legislature did not intend this section to be the 
basis of a punishment for a criminal act. 
 (d) The legislature knew of the Contempt of Court Ordinance when it enacted the 
Criminal Code Ordinance in 1936. It may be assumed, therefore, that had the 
"imposition of a punishment" for disobedience for an order of court been included 
in section 6(1) of the Contempt of Court Ordinance, the legislature would not 
have enacted section 143 of the Criminal Code Ordinance in terms of which every 
person who disobeys an order of court is guilty of a misdemeanour and is liable to 
imprisonment for two years. 
 (e) In terms of section 143 of the Criminal Code Ordinance disobedience of any order 
of court is made an offence as is also disobedience of an order given "by any 
officer or person acting in any public capacity and duly authorised in that behalf", 
and for this offence a punishment of imprisonment for a period not exceeding two 
years is provided. This section contains two provisos, namely : "unless (a) any 
other penalty is expressly prescribed or (b) any other mode of proceedings is 
expressly prescribed in respect of such disobedience". It is possible that these CrimA 6/50 Levitt v. Angel 8
provisos also give some hint as to the meaning of section 6(1) of the Contempt of 
Court Ordinance. It seems to me that the first proviso cannot refer to section 6(1) 
since that section contains no express provision relating to the imposition of a 
punishment and it is difficult to regard the giving of power to the court to enforce 
obedience to its orders as "the express provision of another penalty". The second 
proviso may apply to section 6(1). This proviso does not speak of "any other 
mode of imposing a penalty in respect of such disobedience", but it speaks of "any 
other mode of proceeding in respect of such disobedience". "Any other mode" - 
that is to say, another way of dealing with the act which constitutes this 
disobedience - in other words, in place of the imposition of a penalty for 
disobedience to the order of court, there is a proceeding for enforcing obedience 
to such order. 
 (f) Finally, the original section 6(1) does not speak of courts in general but of 
particular courts. The Contempt of Court Ordinance in its present form was 
enacted in 1929. The law in force at that time was the Ottoman Criminal Code 
which contained no section whatsoever in terms of which disobedience to an order 
of court could be punished. Is it possible that the legislature intended in section 
6(1) to confer upon particular courts alone the power of imposing a punishment 
for disobedience of their orders? It is true that the power of granting injunctions 
had not yet been conferred upon magistrates but they were able to issue other 
orders. Is it possible that the public interest did not also demand the imposition of 
a penalty for failure to obey the order of a magistrate? It follows that section 6(1) 
was designed to enforce obedience to an order and not to impose a penalty for an 
offence. It was only in 1936, in section 143 of the Criminal Code Ordinance, that a 
penalty was provided for disobedience of an order given by any court. Since 
magistrates had no power to grant injunctions no importance was attached to the 
enforcement of their orders. Proof of this is to be found in the fact that in 1947, 
when the power was conferred upon magistrates of granting injunctions (see 
Ordinance 45 of 1947) section 6(1) was also amended so as to include magistrates 
courts. (See Contempt of Court (Amendment) Ordinance, 1947). CrimA 6/50 Levitt v. Angel 9
5. In Taasiya Chemit Tel Aviv Ltd., v. Kupat Cholim, (1), in which a fine of I.L. 5000 was 
imposed, the argument was advanced upon the basis of section 41 of the Criminal Code that 
since no maximum fine was laid down in section 6(1) of the Contempt of Court Ordinance, 
the maximum was I.L. 200. The court said : 
"Section 6 of the Contempt of Court Ordinance was enacted for the 
purpose of enforcing by fine obedience to an order issued. The object of 
the section is not as is contemplated by section 41 of the Criminal Code 
Ordinance, but to give authority to impose a fine which would be 
sufficient to enforce obedience." 
 
6. It appears to me from the decision of the learned judge in the case before us that he 
issued the order against those who entered the room without permission in order to secure 
obedience to the injunction, while he imposed upon the appellant a punishment as for a 
criminal offence. It seems to me that the direction that should the appellant elect to be 
imprisoned he may, alter having completed a third of the sentence, apply to the court for a 
reduction of the sentence and the court would take into consideration the efforts of the 
appellant to remedy the damage which he had caused, was only intended to induce the 
appellant to make it easier for the trespassers - who were obliged to carry out the order - by 
returning them their money if, in fact, he had received money from them. 
 The learned judge himself says in paragraph 6 of his decision that "the purpose (of the 
remedy sought - the imposition of a fine or imprisonment) is not to punish but to enforce 
obedience to a particular order given by a civil court by means of the imposition of a 
penalty", while in paragraph 11 he says : "in the face of open and impudent contempt such 
as this, there is no alternative but to impose a suitable punishment upon the first 
respondent." 
 
 It is possible that reliance may be placed upon section 143 of the Criminal Code 
Ordinance in order to punish the appellant for disobeying an order of court, but the use of 
section 6(1) of the Contempt of Court Ordinance and the procedure laid down for that 
purpose is not in accordance with law. 
 CrimA 6/50 Levitt v. Angel 10
 In my opinion the decision of the learned judge of December 16, 1949, in regard to the 
appellant must be set aside. 
 
DUNKELBLUM J. I concur, with some hesitation, in the conclusion reached by my 
colleague, Olshan J., and wish to add a number of comments of my own. 
 The problem before us is the interpretation of section 6(1) of the Contempt of Court 
Ordinance. The question is whether this section also applies to a case where the accused has 
acted contrary to an order of court but is no longer able to remedy the situation. In other 
words, is the section only intended to compel a person to comply with a judgment by 
imposing a fine or imprisonment and that such means of compulsion may not be employed if 
the act committed by the accused is no longer capable of being corrected by him, or does 
the section also include an element of punishment to be imposed upon a person who 
disobeys an order of court although he can no longer remedy the position, the object being 
to warn others. 
 
 The distinction between criminal contempt of court and contempt which is only 
disobedience of an order given by the court in civil proceedings has been known to English 
law for some time. ln speaking of the second type of contempt of court proceedings, it is 
pointed out by Lord Lindley, in the case of Seaward v. Paterson (4), that "the party who is 
bound by the injunction is proceeded against for the purpose of enforcing the order of the 
court for the benefit of the person who got it... The person who is interested in enforcing 
the order enforces it for his own benefit." In cases falling into the first class the court is 
concerned not to permit a person to treat it with contempt. 
 
 Lord Atkinson defined more clearly the nature of the first class of contempt, that is to 
say, civil contempt of court, in the case of Scott v. Scott (5). At page 456 Lord Atkinson, 
after referring to various judgments relied upon by counsel for the parties, said : 
 
"It was contended that these cases show that the disobedience of an 
order of court constitutes in itself a crime, a criminal contempt of court. 
Unfortunately for this contention, however, they do something more 
than that; they show I think, conclusively, that if a person be expressly CrimA 6/50 Levitt v. Angel 11
enjoined by injunction, a most solemn and authoritative form of order, 
from doing a particular thing, and he deliberately, in breach of that 
injunction, does that thing, he is not guilty of any crime whatever, but 
only of a civil contempt of court." 
 
 Acts which constitute the first class of contempt are of an entirely different character, 
such as an attempt to influence witnesses, to threaten witnesses, interference in the work of 
the court which disturbs the proceedings, acts of disturbance generally, shouting and 
demonstrations in court, and acts of a similar nature. (See for example the judgment of Lord 
Shaw in Scott v. Scott (5), and also the judgment of Lord Atkinson at p. 455.) 
 
 It is possible therefore to distinguish shortly between these two classes of contempt, 
and to say that to the first class belong acts which are of such a nature as to disturb the 
work of the court or which are liable to influence the proceedings in court, while acts which 
do not possess these characteristics but consist in disobedience of an order given in favour 
of a litigant in a civil proceeding, belong to the second class. 
 
 The Palestine legislature found it proper to regulate the question of contempt of court 
by legislation. The opening sections - that is to say sections 3, 4, and 5 - deal with acts 
which belong to the first class, while section 6 of the Ordinance speaks only of disobedience 
of an order which is to be executed in favour of the interested party. It is true - as is said in 
a number of English judgments - that there is also a criminal element ill the imposition of a 
penalty for disobedience of an order in a civil proceeding (see for example the judgment of 
Rigby J. in the case of Seaward v. Paterson (4) at p. 558; and see Halsbury, vol. 7 p. 24). 
As far, however, as the question before us is concerned, we are obliged to rely, in the main, 
upon the provisions of section 6(1) of our Ordinance, and the correct interpretation to be 
given to the expressions employed by the legislature. The section provides as follows : 
 
"6(1) The Supreme Court, the Court of Criminal Assize, a special 
Tribunal constituted under article 55 of the Palestine Order in Council, 
1922, the District Court and the Land Court shall have power to enforce 
by fine or imprisonment obedience to any order issued by them directing 
any act to be done or prohibiting the doing of any act." CrimA 6/50 Levitt v. Angel 12
 
 The object of this section, therefore, is to impose a fine upon a person or to direct his 
imprisonment for the purpose of compelling him to carry out an order of court, and if that 
person did an act which he cannot remedy, then according to the interpretation of the 
section he is not to be imprisoned or fined since the court will not compel him to do 
something which he is unable to do. It is possible that the result of this interpretation is not 
altogether satisfactory. The provision before as is one dealing with imprisonment and fines, 
and a provision such as this must be interpreted strictly and not broadly. 
 
 No local or English authority dealing directly with a question similar to that before as 
was cited to as by the parties, and I too have been unable to find any such authority. I 
merely wish to point out that a submission similar to that made to us was argued more that 
a hundred years ago in the case of Wellesley v. the Duke of Beaufortt (6). The argument in 
that case, however and I think correctly so - was presented in the opposite form, that is to 
say, that where a person does an act contrary to an order of court which he cannot remedy, 
the punishment imposed upon him should be more severe. In the case of Re Newberg (7), 
the accused was sentenced for contempt of court although the order which he failed to 
obey was a civil order, and although it was not possible for him to carry out the order 
previously given at the time he was punished. Counsel for the accused in that case presented 
a submission similar to that make before us. The punishment is imposed, so he argued, so as 
to procure the doing of an act speedily which someone is obliged co do by law. The accused 
was in the meantime declared a bankrupt and was therefore unable to do what he had been 
ordered to do. Judgment was given against the accused on other grounds : he was a lawyer, 
and his actions amounted to deceit. The judgment in that case, therefore, cannot be 
regarded as a precedent in our case. It is merely interesting that in the course of argument 
Lord Denman C.J. asked in wonderment whether it was desired to argue that the accused 
could not fulfil the requirements imposed upon him when such action on his part was 
demanded of him because he had, by his own actions, put it out of his power to perform 
those requirements? In the case of In re Davis (3), it was mentioned by the court, obiter, 
that a person is punished for contempt of court for failure to obey an order of court 
although the act which constitutes the offence is not capable of being remedied. In any 
event, us I have said, although this question has arisen many times, I have found no decision CrimA 6/50 Levitt v. Angel 13
bearing directly upon it. It seems, however, that this argument would not be sufficient to 
secure the acquittal of the accused under English practice. 
 We are dealing with a statute which, although based upon the practice followed in 
England for generations, must be interpreted primarily according to the literal meaning of 
the language. It seems to me, therefore, that we must conclude from the language of section 
6(1) that the provisions of this section do not apply to the case before us. It seems to me 
that it is necessary to amend this section in such as way as to make it clear that a person 
who disobeys an order of court made at the conclusion of civil proceedings will be punished 
upon the application of the interested party in whose favour the order was given without 
resort to section 143 of the Criminal Code Ordinance, 1936. 
 
 It is also desirable to mention here that, according to English law, if a person 
undertakes in court to do or refrain from doing a particular act and the court, relying upon 
such an undertaking, confirms particular actions, breach of such an undertaking constitutes 
contempt of court. There is no similar situation in our law, and it would be desirable to 
remedy the omission. 
 
 I have doubts in regard to what was said by my colleague Olshan J., as to the scope of 
section 143 of the Criminal Code Ordinance. It is not clear to me whether a person who 
commits a breach of an order of prohibition issued by a civil court is guilty of a criminal act 
under that section. In the case mentioned above, Scott v. Scott (5), Lord Shaw said (at p. 
486) : 
"...the breach by a party of an order made against him or her in the 
course of a civil case is a perfectly familiar thing. Cases for breach of 
injunction are tried every day. But I have never yet heard that they were 
anything but subject to trial by the civil judges as in a civil cause or 
matter." 
 It is not necessary however to deal with this question now. CrimA 6/50 Levitt v. Angel 14
 It is my opinion, therefore, that the appeal should be allowed, and the judgment of the 
court below set aside. 
 
CHESHIN J. I concur in the opinion of my learned colleagues that the order (mistakenly 
called "the decision") of the District Court imposing a fine upon the appellant should be set 
aside. 
2. The sections in the Contempt of Court Ordinance dealing with the imposition of a fine or 
imprisonment are divided according to their nature into two groups. The first group - 
which includes sections 3, 4, 5, and 10 (which was repealed by the Criminal Code 
Ordinance, 1936) - refer to the past, while the second group - which includes only section 6 
- refers to the future. Each of the sections in the first group opens with an act done by a 
person, and concludes with the fine or imprisonment which is to be imposed upon that 
person for the act committed by him. The language of the sections themselves is as follows : 
"Section 3(1): "If any person wilfully obstructs... an officer of a court in 
the performance of his duty... is liable to be punished with a fine... or 
with imprisonment..." 
Section 4(1): "If, while any proceedings... are pending in any court, any 
person shall publish any writing... the High Court... may summon such 
person... to show cause why he should not be punished... by fine or 
imprisonment... " 
Section 5: "A witness who refuses to be examined according to lax... 
may be committed to prison by the court summarily... ". 
Section 10(1): "Any person who - 
 (a) ...uses words... 
 (b) publishes any invective... is liable to imprisonment...". 
 The position therefore is that the Ordinance in these sections defines acts, and lays 
down penalties in respect of these acts. Then, standing alone, is section 6 - in the second CrimA 6/50 Levitt v. Angel 15
group - which does not speak at all of acts but opens with a fine or imprisonment, and 
explains at once that the fine or imprisonment is not in respect of some act which was done 
or some omission, but that the purpose of the fine or imprisonment is to enforce obedience 
in the future to an order given by the court in the past. In this respect section 6 is irregular 
in the framework of the Contempt of Court Ordinance, and its object is utilitarian, for the 
purposes of a specific matter and not general and punitive. As against this section 143 of the 
Criminal Code Ordinance 1936 - which complements section 6 of the Contempt of Court 
Ordinance - should really, from the point of view of its content, be part of this latter 
Ordinance, for this section - 143 - also opens with an act : "every person who disobeys any 
order or warrant given by any Court..." and closes with a punishment "is liable ...to 
imprisonment." 
3. The learned judge in the District Court did not observe this distinction, and after relating 
the facts regarding the breach committed by the appellant, he adds : "in the face of open and 
impertinent contempt such as this there is no remedy but to impose a suitable punishment 
upon the first respondent (the appellant in the proceedings before us)". The learned judge, 
however, overlooked that section 6 does not provide a punishment for breach of the order, 
but empowers the court to impose a fine or imprisonment for the purpose of enforcing 
obedience to the order in the future. From this it follows that where it is clear that the order 
cannot be complied with in any event because there is no possibility of complying with it, 
section 6 does not apply at all since there would be no effect in such n case in imposing a 
fine or imprisonment. Let us assume, for example, that the court ordered a person to do a 
particular act, and that having failed to obey the order the person concerned was summoned 
to court to show cause why a fine or imprisonment should not be imposed upon him under 
section 6(1) of the Contempt of Court Ordinance. And let us assume further that during the 
period between the filing of the application and the date of the hearing he complied with the 
order and did what was required of him. Would the court be competent to impose upon him 
a five or imprisonment? It is clear that the answer is "no". In terms of section 6(1) a fine or 
imprisonment is imposed only "to enforce obedience to any order issued" by the court, but 
in the example which I have cited the order had already been complied with - albeit after 
some delay. From this point of view, a person who appears before the court and proves that 
he cannot comply with the order is in the same position as a person who complied with the 
order but did so after the date fixed for the compliance. In neither case will the imposition CrimA 6/50 Levitt v. Angel 16
of a fine or imprisonment enforce compliance with the order - in the first case because it has 
already been complied with, and in the second case because there is no possibility of its 
being complied with. 
4. And this is not all. The fines and periods of imprisonment mentioned in those sections 
which fall into the first group are the fines to be exacted for acts that have been committed. 
Such acts are onetime acts and the fine is to be paid but once. From this it follows that the 
act is a criminal offence, and the fine or imprisonment is punishment. As against this, the 
fine and imprisonment in section 6(1) are not intended as a fine to be exacted for an act 
which has been committed, but are a means of enforcing - by way of warning - the 
performance of an act. If one attempt to enforce compliance with the order has no effect, 
then he who disobeys must be compelled a second time, and a third time, and so on without 
end, until he does what is required of him. From this it follows that disobedience is not a 
criminal offence, and the fine or imprisonment is not a punishment. The learned judge 
therefore erred in his opinion that there is no alternative but to impose a suitable punishment 
upon the first respondent. 
5. I must confess, in conclusion, that I thought at first that it would perhaps be wise, after 
setting aside the order of the District Court, to return the case to that court to determine 
whether indeed the appellant is able to comply with the order of the court. It is difficult to 
ascertain from the facts what the position is, and the order of the learned judge is also not 
sufficiently clear. At one point in the order - after speaking of imposing a punishment - the 
learned judge says that "after the first respondent (the appellant) shall have served at least 
one third of the imprisonment... he shall be given the opportunity of applying to court for a 
reduction of the sentence, and the court will no doubt take into account his efforts to 
remedy the damage caused by him". This language suggests the possibility that the appellant 
will be able, with some effort, to comply with the order. But next to the sentence which I 
have quoted we find the following words : "It is possible that the appellant no longer has 
any direct control over those in possession of the room, and there is no necessity for this 
reason to compel him directly to enforce the order". It will be seen that these words indicate 
two possibilities. I thought, therefore, as I said, that it would perhaps be desirable to direct 
the court below to determine the position as it is and decide accordingly. I changed my 
mind, however, after considering the application of the respondent to the court below. It is CrimA 6/50 Levitt v. Angel 17
true that this application is headed by the words "Application under Section 6(1) of the 
Contempt of Court Ordinance", but in the body of the petition the court is asked ''to give an 
order for the imposition of a fine or imprisonment for failure to comply with the order given 
in Application . . . ". In other words, it is not compliance with the order in the future which 
concerns the respondent, but the failure to comply with the order in the past. The prayer in 
the petition, therefore, is for the imposition of a punishment for an offence. It is here that 
the mistake of the petitioner lies - a mistake which in the end led the court itself into error. 
The petition is based upon false premises, and should have been dismissed by the court at 
the beginning of the proceedings when counsel for the appellant addressed his preliminary 
arguments to the court. For this reason there is also no point in returning the case to the 
District Court. 
Appeal allowed and the decision of the lower court, 
in so far as it affects the appellant, set aside.
Judgment given on June 30, 1950. 

 

 

 

 

 

To this I would add that, according to the evidence before us, the said defense is not available to the petitioners. Indeed, it has been held that this defense applied in a similar matter, in which the authorities breached a promise to give immunity to rioters who took over the Parliament of Trinidad and Tobago. See Phillip supra. [24], at 108. Nevertheless, the case here does not appear to involve the sort of behavior by the army authorities that would make this defense available to the petitioners, under the standard of Yeffet supra. [6]. Indeed, the evidence does not justify a holding that the authorities’ chosen course of action, including the prosecution, was, under the circumstances, illegitimate, so as to taint the criminal proceedings taken against the petitioners and have them deemed a wrongful use of legal proceedings. See Bennet v. Horseferry Road Magistrates’ Court (1993) 3 All. E.R. 138, 151 (H.L.) [25]. Moreover, no evidence points to the fact the petitioners can not receive a fair trial. See Letif supra. [22], at 361.

 

19. The petitions are rejected. The orders nisi and interim orders issued in connection with these petitions are cancelled. Under the circumstances, an award for costs shall not be made.   In order to remove any trace of doubt, we emphasize that this ruling in no way serves to weaken the parties’ arguments made in the criminal proceedings on the matter, before the military tribunal.

 

Justice D. Dorner

 

I agree.

 

Justice Y. Turkel

 

It is with a heavy heart that I join the opinion of my esteemed colleague, Justice Or. 

 

The requirements set out by our Rabbis regarding conducting negotiations in good faith and concerning ’s the keeping of one's word, see Midrash Mechilta, Beshalach, 15 [35]; Babylonian Talmud, Tractate Shabbat 31a [36]; Babylonian Talmud, Tractate Baba Metzia 44a; 48b [37], were imposed on the individual more as a matter of morals and ethics, rather than as legal obligations. To my mind, these requirements are just as valid today as they were in the past, and apply not only to relationships between individuals but to the authorities and to government officials conducting negotiations with the public. Their foundation is to be found in the province of morals and ethics, in addition to considerations of efficiency. I shall refrain from making a pronouncement on the legal basis of such duties at this juncture, for such a discussion is unnecessary for our purposes.

 

I will not deny that given the significant weight, which, in my view, attaches to these considerations, I initially leaned towards a different decision. Likewise, I considered whether the authorities’ decision in this instance truly satisfied the test of proportionality. The petitioners’ cries may have reached the heavens, but they nonetheless failed to reach the prison wardens. Such cries should have been heard and should perhaps have been taken into account in deciding whether to press charges.

 

One way or another, I can only push away my doubts and accept my colleague’s conclusion that there is no room for the Court’s interference in the authorities’ decision not to respect the provisions of section 5 of the agreement. Indeed, while the authorities may have very well reached a different decision in this matter, this, in and of itself, does not justify our intervention here. 

 

Roman law recognized a type of decision known as “Non liquet”. This referred to a judge’s announcing his inability to rule one way or another. See Dr. Alkushi A Wealth of Latin Terms and Expressions [34], at 320 and legal dictionaries. In my view, this term also characterizes our decision to reject this petition. It is best left to stand as such, somewhat nebulous and equivocal, ending in both an exclamation and a question mark.

 

 

Decided as per the opinion of Justice Or.

24 November 1997

Crim. A. 242/63

 

           

MICHAEL KARITI

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[June 30. 1964]

Before Berinson J., Manny J., Halevi J.

 

 

 

Incorrect returns of capital and income by reason of omissions - Duplication alternative counts - Amendment of indictment - Implied admission of offence arising out of amendment - Evidence Ordinance, 1924, sec. 9.

 

 

                The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the District Court exceeded its powers and that capital and income returns were not admissible in evidence under the law. not having been voluntarily made.

 

                Held.  In the circumstances, the District Court was not justified in amending the indictment without giving the accused the opportunity to be heard. A count which has been struck out by consent before trial cannot in any event be revived. Furthermore, conviction on separate alternative charges under one count cannot stand because of duplication and uncertainty since the accused cannot thereafter plead, if necessary, autrefois convict or acquit.

 

                The requirement to make capital and income returns and other relevant information in accordance with the law does not render an admission involuntary. The confession rule must be distinguished from the privilege against self-incrimination. The test of the former goes to the means in which it was obtained. The latter rests in the "inhumanity" of placing a person in the legal dilemma of being criminated for an offence already committed or perpetrating another offence by refusing.

           

Israel cases referred to:

 

(1)        Cr.A. 51/61-Attorney-General v Aharon Steinberg (1961) 15 P.D.1602.

(2)        Cr.A. 114/52-Ezra Habara v Shoshanah Yeroham (1953) 7 P.D.

(3)   Cr.A. 20-21/49-A1i Mahmad Hussein Abdul Ha'adi and others v Attorney-General (1950) 3 P.D. 13.

(4)        Cr.A. 307/60-Jarboni and others v Attorney-General (1963) 17 P.D. 1541.

(5)        Tel Aviv S.C.C. 3/54-Attorney-General v Victor Mizan (1956) 11 P.M. 140.

 

English cases referred to:

 

(6)        R. v Surrey Justices. Ex parte Witherick (1932) 1 K.B. 450.

(7)        R. v Molloy (1921) 2 K.B. 364.

(8)        R. v Wilmot (1933) 24 Cr.App. R. 63.

(9)        R. v Scott (1856) 7 Cox C.C. 164.

(10)      R. v Colpus & Boorman (1917) 1 K.B. 574.

(11)      Re Worral Ex parte Cossens (1820) Buck. 531.

(12)      R. v Slogget (1856) 7 Cox C.C. 139.

(13)      R. v Noel (1914) 3 K.B. 848.

(14)      Comm. Customs & Excise v Ingram (1948) 1 All E.R. 927.

 

Arnerican cases referred to:

(15)      State v Reinhart (1895) cited in Wigmore on Evidence (3rd ed) Vol 3, p.239.

(16)      State v Novak (1899), ibid., p.240.

(17)      State v Porter (1897), ibid. p.245.

(18)      State v Guie 186 Pac 329 (1919), ibid., p.245

(19)      Wilson v U.S. 221 U.S. 365 (1911).

(20)      Davis v U.S. 328 U.S. 582 (1946).

(21)      Shapiro v U.S. 335 U.S. 35 (1948).

(22)      pano v New York 360 U.S. 315 (1959).

(23)      Blackburn v Alabama 361 U.S. 199 (1960).

(24)      Nicola v U.S. 72 F. (2d) 780 (1934).

(25)      Hanson v U.S. 186 F. (2d) 61 (1950).

 

A.S. Shimron for the appellant.

A. Kamar, Deputy State Attorney, for the respondent.

 

BERINSON J.            The appellant was tried by the Haifa Magistrate's Court on the following five counts under sec.77 of the Income Tax Ordinance, 1947:

(1) giving incorrect information on a return of capital submitted as at 31 March 1957 in that he included an excess of 620 sovereigns;

 (2) giving incorrect information in a return of capital submitted as at 31 March 1959 in that he did not include a sum of IL. 12,500:

(3) preparation of an incorrect return for the 1957 tax year in that he declared an income of IL.3,600, and thereafter reached agreement with the Assessing Officer whereunder his income for that tax year was put at IL.5,000 whereas his true income in that tax year was IL.69,490, thus omitting without reasonable explanation from the said return income amounting to IL.65,880;

(4) a similar offence of omitting the same income of IL.65,880 from the return for the 1958 tax year;

(5) an alternative offence of omitting the same income of 1L.65,880 from the returns for the 1957 and 1958 tax years.

 

            At the outset counsel for the appellant pleaded that the fifth count suffered from being duplicatory and further did not disclose an offence, and with the consent of the representative of the Attorney-General, it was struck out.

           

            In the Magistrate's Court the appellant was acquitted of the second and fourth counts but was convicted of the first and third counts for omitting an amount of IL.35,800. He appealed against the conviction but the Attorney-General did not appeal against the acquittal. The District Court acquitted the appellant on the first count as well but found him guilty of the third count, amending the conviction as follows: "Since we are unable to determine whether this amount (of IL.35,800) was omitted from the return for the 1957 tax year or from that for the 1958 tax year, the conviction will stand for omitting this amount from the return for the 1957 tax year or from that for the 1958 tax year or from both together." In so convicting him, the Court treated the conviction as more in accord with the fifth count which had been abandoned as above but felt justified in doing what it did by virtue of its powers under sec. 12 (5) (b) of the Magistrate's Court Jurisdiction Ordinance (1947) to amend a count in order to give such judgment as, in its opinion, ought to have been given by the Magistrate's Court. In so doing the District Court relied on the judgment of this Court in Attorney-General v Steinberg (1), stating that in any event if the appellant did not omit chargeable income from the return for 1957, he omitted it for 1958, or omitted part in each year.

           

            It seems to us that the path which the District Court followed is not open to us. Appellant's counsel rightly urged that by so convicting the District Court went beyond its powers. Under the said section the power of a District Court as an appellate court is to give such judgment as should in its opinion have been given by the court below on the charge of the evidence adduced. Might the Magistrate's Court, at the end of the hearing, have reverted to the fifth count and convicted for it, after having been included in the charge sheet and struck out with the consent of the prosecution in view of the opposition of defendent's counsel? It seems that it could not, precisely because it was struck out. And if the Magistrate's Court might not so revert, then also the District Court could not.

 

            Mr. Shimron frankly admitted that the appellant was not substantively put at a disadvantage by the District Court's amendment of the charge, and had he been given the opportunity to plead against the charge in the manner which the District Court had in its judgment, he would not have advanced any new argument against the charge itself nor put in any evidence further to that before the court. Yet, he argues, had he had the opportunity to plead against the charge in its new form he would have shown that the District Court was not empowered to convict as it did - at least, he would have shown that the conviction certainly suffered from being duplicatory.

           

            We agree with Mr. Shimron that in the circumstances of the case, as described above, it was not proper to vary the counts without giving the Defendant good opportunity to plead to the variation, and had that been done, he would have had something to say to prevent such conviction as the District Court decided upon. Indeed, the fifth count was not struck out in vain by the Magistrate's Court without opposition from the prosecution. It is clear to us that in its original form it did not disclose any offence since the duty is to make a return of income for each tax year separately (sec. 43A of the Income Tax Ordinance) and no duty exists to submit a return for two years together. The offence can only be the making of an incorrect return for one particular year. Neither can the conviction on the amended count stand, first, because of the above point that the Magistrate's court could not revive - even if in an amended form - the count struck out by it at the outset and that therefore the District Court was debarred from doing so; and secondly - and this is the main reason - because the new count, as phrased by the District Court, contains in fact a number of separate alternative offences, the omission of the amount of IL 35,800 from the return for 1957, or the omission of that amount from the return for 1958, or the omission of an unaxetained part of that amount from the return for 1957 and omission of the remainder from the return of 1958.

 

            Such a conviction is defective both for duplication and uncertainty. "1t is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict:" R. v Surrey Justices (6) at 452; see also R. v Molloy (7) and R. v Wilmot (8).

 

            According to Attorney-General v Steinberg different offences can be contained in one indictment in the alternative, provided that each is put as a separate count. lf the prosecution succeeds in proving that the Defendant has prima facie committed one of the alternative offences, the Defendant must answer to the charge. Should he not do so or not succeed in exculpating himself from all the alternative offences, he can be convicted of one of them but not on the basis of the very same facts of all of them or in a vague manner of one or other offence without choosing one of them.

           

            For this reason, we must go back to the third original count and inquire whether he could be convicted of that or alternatively of the fourth count. These two counts of which the defendant was charged in the Magistrate's Court are in their nature alternative. That they are so is not expressly stated in the indictment but that is unnecessary where they are clearly so. It is indeed manifestly clear in the present case: the appellant is alleged to have omitted an amount of IL.65,880 once only in one of two years but the prosecution did not know precisely in which of them. He was therefore charged with the omission of the entire amount alternatively in the one or the other year. Accordingly the Magistrate's Court could, at its election, have convicted him of one of these two alternative charges upon finding that all or part of the amount was omitted from the return for one of the two years. Since it found that an amount of IL.35,800 was omitted in the 1957 tax year, he was convicted of the third count and exonerated of the fourth count. There was no appeal by the prosecution against the latter, but according to Habara v Yeroham (2) that does not deprive the appellate court of the power to convict for the offence for which he should initially have been convicted on the evidence adduced in the case. Notwithstanding, therefore, the acquittal by the Magistrate's Court on the fourth count and the fact that the Attorney-General entered no appeal, the District Court could have convicted the appellant of one of the two counts, depending on the evidence before the Magistrate's Court. This course which was open to the District Court is obviously open to us as well, and we shall later consider the possibility and need to proceed accordingly.

 

            Before doing so, we must deal with two other arguments by Mr. Shimron, each of which, if accepted, may relieve us from the necessity of dealing with the details of the omission alleged against the appellant.

           

            The first argument is that in the course of other proceedings between the parties regarding the assessment for tax year 1957 ... counsel for the respondent pleaded an income of IL. 22,000 and the State is therefore bound by that. The income was at first fixed by agreement for each of the years 1952 to 1957 inclusive. Since, however, the appellant's declarations of capital disclosed unexplained differences, the Income Tax Commissioner reopened the assessments and increased them and also determined the appropriate assessments for 1958 and 1959. That was, done by distributing the capital differences among all these years; for 1957 the new assessment was put at IL. 22,000 as against the appellant's declared income of IL. 3,600 and the income earlier agreed of IL. 8,000. The argument was that this determination by the Commissioner, approved by court on appeal against the assessment, is by way of an admission by the State of the correct income of the appellant in that year and the State now cannot argue otherwise here.

           

            I must say that I have not quite understood the argument. What admission is there which prevents the State from arguing otherwise or in contradiction? The Commissioner estimated the appellant's income on the basis of the disclosed capital differences and made an arbitrary division of these in respect of those years according to his best judgment. This is not to be regarded as a determination of the true income of the appellant in those years, which bars the State from showing the facts as they really were. The determination is no more than was earlier agreed by the Assessing Officer to put the appellant's income for 1957 at only IL. 8,000. Mr. Shimron himself agrees that what occurred does not create an estoppel against the State and is not to treated as a final determination. If that is so. the most he can say is that the Magistrate's Court should have weighed the State's submissions in this case in the light of the fact that they vary from those made in that case. The evaluation of the evidence is primarily the concern of the court hearing the matter. In the present instance the Magistrate's Court had to decide which was preferable, the vague assessment of the Assessing Officer or the result emerging from all the evidence put to it. It preferred the latter and no one complained about that.

 

            Incidentally, had we said that the Commissioner's assessment was determinative, then at least this "admission" upon which the appellant relies is calculated to convict him at once for concealing an amount of IL. 18,400, the difference between the assessment of IL. 22,000 and a declared income of IL. 3,600, and the plea that the appellant had not committed any offence would fall. I am certain that had the prosecution attempted to base conviction on this ground, Mr. Shimron would be the first to protest and rightly.

           

            Mr. Shimron's second submission concerns two declarations of capital of March 31, 1957, and March 31, 1959, which the appellant filed with the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, and which served as a basis for calculating the amount omitted from the annual returns of income. Mr. Shimron argued that the declarations of capital presented in court are not admissible as evidence. They form confessions in the sense of sec. 9 of the Evidence Ordinance since they contain statements from which the likely conclusion is that a criminal offence has been committed, and it was given to the Assessing Officer, a person in authority. (See sec. 3 of the Income Ordinance which defines an Assessing Officer as an officer appointed to implement the Ordinance, possessing wide powers, including those under sec. 45). The declarations, being confessions which the appellant was compelled to make under the law, lacked "free and voluntary" foundation and are therefore inadmissible. Mr. Shimron argued further that the Income Tax Ordinance did not permit the use of information delivered under sec. 45 as evidence against the person delivering it, even if it is liable to incriminate him and in the absence of such a provision it is not permissible as evidence. Initially, the submission appeared very peculiar to me, its reasonableness somehow worried me, and as I continued to think about it and examine the sources I indeed grew conscious that it was completely baseless.

 

            The first question is whether the declarations of capital, each on its own and together, fall within "confessions" within the meaning of sec. 9 of the Evidence Ordinance. Archbold's Criminal Pleading (34th ed.) p. 415, para 1104, states that "an extra-judicial confession is made where the prisoner makes an admission ... of his guilt or of any fact which may tend to the proof of it."

           

            Mr. Shimron relies on this definition. He agrees that although the declarations as such do not confess any guilt, they contain, in his view, an admission of facts which tend to guilt. Mr. Kamar on the other hand argues that according to its terms sec. 9 of the Evidence Ordinance is limited to "confessions by the accused that he has commited an offence. It therefore applies only to actual confessions of an offence and not to admissions of facts which in themselves do not point to guilt. In his opinion, the terms of see. 9 are more in accord with the English rule which we have so far followed, and he suggests that we replace the one with the other. The rule in the U.S., as given by Wigmore on Evidence (Third ed.), vol. 3, para. 821, pp. 238 ff, is more stringent than the English rule.

           

"A confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it."

 

            It clearly follows from this definition that an exculpatory statement by the accused or his acknowledgment of subordinate facts colourless with reference to actual guilt or in other words not essential to the alleged offence is not a confession (ibid. pp. 239 & 243). The many precedents cited justify the above summary of the rule.

           

"A 'confession' in a legal sense is restricted to an acknowledgement of guilt made by person after an offence has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred." (State v Reinhart (15)).

 

"A confession is a voluntary admission or declaration by a person of his agency or participation in a crime... To make an admission or declaration a confession, it must in some way be an acknowledgement of guilt." (State v Novak (16)).

 

            "We take it that the admission of a fact, or of a bundle of facts, from which guilt is directly deducible, or which within and of themselves impart guilt, may be denominated a confession, but not so with the admission of a particular act or acts or circumstances which may or may not involve guilt, and which is dependent for such result upon other facts or circumstances to be established.:' (State v Porter (17)).

 

And finally, a quotation which to some extent accords with the circumstances of the present case:

 

"A confession is a direct acknowledgement of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction." (State v Guie (18)).

 

It is true that see. 9 of the Evidence Ordinance speaks of "confessions of an offence" but, as Mr. Kamar admits, the courts in this country normally regard every admission of a fact indicative of guilt or tending to prove guilt as a confession, and I do not see any reason for departing from this course, which is at one with English practice. A local precedent may be found in the District Court judgment in Mizan (5), from which this Court did not demur on appeal.

 

            The next question is whether the two declarations of capital meet the above tests of a confession. The first declaration, relating to Mar. 31, 1957, was filed on October 8, 1957. At that date, obviously, no income return had been submitted for the 1957 tax year; that was only done on May 18, 1958. It is therefore clear that on the date the declaration of capital was filed no offence had as yet occurred and that the declaration cannot be "a confession by the accused that he has committed an offence" (see. 9). On the other hand the second declaration, relating to March 31, 1959, was filed on September 9, 1959. At that date, the Assessing Officer already had the two income returns for 1957 and 1958 (the second was filed on June 18, 1959). Accordingly when the second declaration was filed, the offence of delivering an inaccurate return for 1957 had already been committed, if it was inaccurate. In this regard alone must the second declaration of capital be regarded as a confession, if (together with other documents) tending to the appellant's guilt.

 

            Mr. Kamar goes on to urge that this declaration of capital does not have to be tested by "voluntariness" since it was not filed at the request of the Assessing Officer but by the appellant on his own initiative, not as a person suspected of having committed an offence but apparently in connection with objections to the assessments for 1957 and 1958. This is not quite correct. The appellant was invited to appear at a hearing before the Assessing Officer and was asked to bring along documents in his possession on which his objections to the assessments were based. Attached to the invitation was a form of declaration of capital for March 31, 1959. That was clear notice that this declaration was among the documents he was to bring with him. The appellant in fact so understood it and did what was required. Nor can it be said that at the time the appellant was not suspected of commission of an offence. Already on January 23, 1959, his bank safe was searched and gold coins were found there which he had not declared; the appellant was suspected because of that by the income tax authorities.

           

            We now reach the main submission of Mr. Shimron, that the declarations of capital were not made voluntarily by the appellant and are therefore inadmissible in evidence against him. This submission is based on the fact that the appellant was compelled to make the declarations under statutory dictate, since he was threatened by criminal sanctions under sec. 76 of the Ordinance if he did not comply with the request of the Assessing Officer.

           

            There are a number of answers to this submission.

           

(1) When is an admission treated as a confession not voluntarily made? The test, it was said in Ha'adi (3), is a single one. "Where the admission was made by the defendant voluntarily, without compulsion, temptation or persuasion, it is valid, where it was not so made, it is invalid." To use the usual formula, a confession obtained under threats or improper assurances is invalid:

 

            The Assessing Officer's request under sec. 45 of the Income Tax Ordinance to make a declaration of capital or to deliver any other information a person has in connection with his income is not unlawful compulsion or temptation or persuasion that can invalidate the declaration made or information delivered in response to the request.

           

            In dealing with extra-judicial admissions Wigmore on Evidence (3rd ed.) vol. 4, para. 1050, pp. 7-8, says that "admissions made under a duty imposed by law stand on a special footing. It would seem that nothing in the principles governing Admissions excludes them." As exception to the rule he mentions inter alia the following two instances in which an admission may be invalidated. The first is when the statute imposing the duty requires a report to a public official but makes its contents confidential and expressly renders it as privilege a communication; even if not express the privilege may be implied where policy obviously requires it. Secondly, in criminal cases, an admission of this kind might receive protection from the privilege against self-incrimination.

           

            In our opinion, neither of the said instances is applicable here. Not only does the Income Tax Ordinance not extend any privilege to information delivered in response to a notice under sec. 45 but it makes a failure to respond or the delivery of wrong information a criminal offence (secs. 75 & 76). All this shows that the legislative intent was that a person requested to deliver information which assists in determining his true income must produce that information, accurate and true. It cannot be that information is privileged from an application to court against the person delivering it. If it were so, that would enable or facilitate the delivery of inaccurate information without fear and the purpose of the law set at naught. In R. v Scott (17), dealing with the examination of a bankrupt under a section of the Bankruptcy Act which bound him to answer questions touching his business affairs etc., it was decided that his answers even though incriminatory, were good evidence in a criminal charge against him. Lord Campbell said,

           

''lf the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it."

 

            And then,

 

"When the Legislature compels parties to give evidence accusing themselves, and means to protect them from the consequences of giving such evidence, the course of legislation has been to do so by express enactment... We therefore think we are bound to suppose that in this instance, in which no such protection is provided, it was the intention of the Legislature to compel the bankrupt to answer interrogatories respecting his dealings and conduct as a trader, although he might thereby accuse himself and to permit his answers to be used against him for criminal as well as civil purposes" (at pp. 170-71).

 

Likewise, Alderson B put it succinctly:

 

"My judgment proceeds upon the ground that if you make a thing lawful to be done, it is lawful in all its consequences; and one of its consequences is that what may be stated by a person in a lawful examination, may be received as evidence against him"(at p.175).

 

(2)        The principle that invalidates incriminatory answers not given voluntarily, does not operate here for another reason as well. It is a leading rule that an official document kept by or found in the possession of a public official must be accessible to the representatives of the public and generally to the entire public, and it can serve as prima facie evidence of the truth of its contents. And its presentation in evidence, even if it tends to incriminate the public official or any other person, is not to be barred unless the law otherwise prescribes or if for some other lawful reason that official or other person is protected against disclosure of the document and its presentation in court. The reason is that the State requires it to be kept and does not ask of the official to commit an offence. "If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law" (Wigmore on Evidence (3rd ed.) para. 1259c, p. 349). 349).

 

            This reason is equally operative with regard to records which the law requires the citizen to keep, including returns and other documents made under statutory requirement. These documents are not merely the private papers of the citizen which he can conceal and prevent their disclosure as evidence in court. They possess a public character and therefore if lawfully obtained are valid evidence: Wilson v U.S. (19); Davis v U.S. (20); Shapiro v U.S. (21). The public has an interest in their non-concealment and their availability for every lawful purpose. This interest prevails over the private interest of their owner to prevent disclosure.

 

(3) Although pleaded, there was in fact no proof that the declaration of capital was given under compulsion of "threat" of criminal sanction hanging over the appellant in the event of his non-compliance. The notice sent to him asked him to present a declaration in the form attached. The form follows sec. 45 of the Ordinance but contains no notice or warning that non-delivery of the required declaration is an offence under the law. True, every person is presumed to know the law. That is a legal presumption. It is another question whether in fact the appellant was aware of the statutory penal sections and as a result of such knowledge complied with the request but otherwise would not have done so. The burden of proof that the evidence which the appellant wishes to exclude was given voluntarily is, we know, upon the prosecution. A plea of improper influence exercised on the defendant, in consequence of which he confessed, must be explicit so that the prosecution knows what case it has to meet. Here the appellant neither attested nor pleaded that he knew of the statutory penal sections and these it was which moved him to respond to the request and deliver the declaration of capital involved. In point of fact, there was no proof of the kind of influence exerted on the appellant that would justify the declaration being invalidated as evidence. The form asked the appellant to give correct particulars and to complete the form accurately. There is no reason for assuming that as a consequence he was influenced to include incorrect statements in the declaration: R. v Colpus (10).

(Berinson J. then analyzed at lenght the facts about the omissions and the related calculations, and continued.)

 

            The result ultimately is that we uphold the conviction on the third count and find that a sum of IL.21,252 was omitted, without reasonable explanation, by the appellant from his return of income for 1957.

           

On the assumption that the amount omitted was IL.35,800 the appellant was sentenced to a fine of IL.14,000 or six months' imprisonment and a suspended term of three months. In respect also of the omission as above, although it is less, we do not think that the sentence is excessive and we uphold it and dismiss the appeal.

 

            I have read the judgment of my learned friend, Halevi J., and I concur in it.

           

MANNY J.     I concur in the judgment of my learned friends, Berinson J. and Halevi J.

 

HALEVI J.     I agree.

 

2. As for the admissibility of the declaration of capital (exhibit P/4) which was the bone of contention in this appeal, it seems to me that learned Defence Counsel, and following him learned Deputy State Attorney, did not sufficiently distinguish between the confession rule and the privilege against self-incrimination.

 

            The basic argument of Mr. Shimron was that the appellant submitted the declaration of capital to the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, 1947, a request behind which lay the criminal sanction of sec. 76(1). For myself, it is immaterial that this criminal sanction was not made express in the notice of request sent to the appellant, and I am ready to assume in his favour that he submitted return P/4 out of necessity, in order only to abide by his statutory obligation under sec.45(1) and with knowledge of the law, including sec. 76(1). Nevertheless that does not amount to "compulsion by some one in authority" in the sense of sec. 9 of the Evidence Ordinance but "compulsion under law." The only question that can arise regarding this kind of compulsion is whether the law goes so far as to compel a person to incriminate himself or leaves the door open to the privilege against self-incrimination.

           

3. The principle behind the privilege against self-incrimination - "one of the most sacred principles in the law of this country" (Lord Eldon in Ex parte Cossens (11) at p. 540) - is a Common Law principle which was given "constitutional" status by the Fifth Amendment in the United States ("No person...shall be compelled in any criminal case to be a witness against himself"). The source, it appears to me, lies in Jewish law, in the rabbinical formula "no person can declare himself a   criminal (rasha)" (Sanhedrin 9b). The Latin aphorism - "Nemo terretum se ipsum accusare (or predere)" - is an almost literal translation and attests to the Jewish source. (See the passages cited by Riesenfeld, "Law Making and Legislative Precedent in American Legal History", (1949) 33 Minn L.R. 103,118, reproduced in McCormick, Law of Evidence (1954) p. 253, notes 9-10. See for the history of the principle in England, Wigmore on Evidence (McNaughton Rev. (1961) ) vol. 8, para. 2250). With the reception of the substance of the Common Law in this country, through article 46 of the Palestine Order in Council and sec. 11 of the Law and Administration Ordinance, 1948, the Jewish law principle returned to its original source.

 

            One must indeed distinguish carefully between the embracing meaning of the principle in Jewish Law, that a person cannot incriminate himself by his own utterance, and its more limited meaning in the Common Law, a person is not required to incriminate himself. "A person is, vis-a-vis himself, a relative, and no person can declare himself a criminal," (Sanherdin. 9b) is explained by Rashi ad locum: "That is to say, he is not incriminated by his own evidence since Torah disqualifies a relative as a witness."

 

4. For all the close similarity of the self-incrimination privilege and the confession rule and in spite of their possible overlapping in certain instances, a basic difference exists between them: see R. v scott (9) at pp. 169-70, and Wigmore on Evidence, ubi supra, para. 2266.

(a) The "confession" test under see. 9 of the Evidence Ordinance is directed to examining the means by which the confession was obtained from the defendant. If these means were "promises or threats" by "a person in authority", then

"it would be dangerous - so the legislature assumes - to rely on it as being truthful... The true reason for excluding confessions not made 'voluntarily' is based on the consideration that it would be dangerous to rely on it for that reason as trustworthy evidence."

(Agranat J. in Jarboni (4) at pp. 155 3-54). (See, however, the reservations of McNaughton in Wigmore on Evidence (McNaughton Rev.) vol. 8, para. 2266, about this reason (which was that given in Wigmore 3rd ed.) in view of recent American decisions: Spano v New York (22) and Blackburn v Alabama (23) ).

 

            On the other hand the self-incrimination privilege is not based on fear of the untrustworthiness of incriminating evidence. The reason (or one of the important reasons) for it is that it is immoral - and even inhumane - to place a person in the "legal dilemma of either incriminating himself by a true admission of the crime he committed or committing a new crime by refusing to give evidence or by giving false evidence." (Cf. Williams, The Proof of Guilt (3rd ed.) p. 53). In this situation, according to the Common Law, a person may refuse to answer a question to which otherwise he would be obliged under law to reply truthfully. (See Wigmore on Evidence para. 2251, and particularly pp. 316 - 18).

           

(b) By requiring the prosecution to produce "evidence of the circumstances in which (the confession) was made" see. 9 is concerned with the factual question of whether any pressure or inducement was exerted by a person in authority to bring about the confession. Self-incrimination, by contrast, does not come from any "means" used on the defendant or accused to move him to confess the alleged offence but from the very "dilemma" of that person who knows in his heart - and perhaps alone knows without any one else suspecting him - that a true answer to the lawful question put to him might criminate him of the offence he has committed. The privilege therefore - as against the confession rule - obtains in cases of "legal compulsion" that would otherwise exist, that is, when the law (or the person acting in its name, a judge or authorized investigator) requires or "compels" the person being examined to give full and accurate answers to questions lawfully addressed to him. In this situation, and only in this situation, does the question arise - and it is a question of law - whether in fact the law compels an answer even if it tends to be "self-incriminatory" or whether the person can insist on "the privilege" and refuse to answer questions which may expose him to the danger of a criminal charge.

 

(c) The stage of the proceedings at which the privilege may be exercised varies from that at which the question of the admissibility of confession occurs. The privilege is to be claimed before the possibly incriminatory answer is given. A person possessing the privilege who answers a question without protest, even if it may incriminate him, has waived the privilege and his answer is admissible against him in every civil and criminal court: see R. v Slogget (12) and R. v Noel (13): Kenny Turner, Outlines of Criminal Law (17th ed., 1958) para. 590; Cross Evidence (2nd ed., 1963) p. 227: Wigmore on Evidence (McNaughton Rev.,) paras. 2268 and 2275.

 

            Only when the person, relying on the privilege, refuses to answer the question and is unlawfully required to answer it, will the incriminating answer be excluded as evidence against in any trial: R. v Scott (9): Kenny-Turner, loc. cit.; Wigmore, op. cit., para. 2270, p. 417 and the precedents in McCormick, op. cit. para. 127 notes (1) and (8); Cf. American Law Institute, Model Code of Evidence (1942), rule 232 and Uniform Rules of Evidence (1953), rule 38.

           

5. Accordingly, the privilege is only to be pleaded and the question of its application in a given instance is only to be treated on a refusal to answer a question which has been put or to produce a document which has been requested. Had the appellant here refused at the time to file the return of capital requested under sec. 45 (1) of the Income Tax Ordinance or to answer any of the questions appearing on the form of the return, he could have been sued under sec. 76 (1) which provides that "every person who, without sufficient cause,... fails to comply with the request of a notice given to him under this Ordinance" is liable to imprisonment and fine. At the trial, the appellant could have pleaded in defence that the self-incriminating privilege was "sufficient cause" for failing to comply with the request of the Assessing Officer, and in view of this defence the court would have had to decide whether in fact the privilege existed as regards a request under sec. 45 (1) of the Ordinance. There is no need to consider this question in the present appeal since the appellant waived the privilege (if any) by giving full answers to the questions set out in form P/4 and submitting a return of capital without contestation or opposition. In this regard, there are the direct precedents of Nicola v U.S. (24) and Hanson v U.S. (25) where it was held that persons liable for income tax, who delivered to the tax authorities upon request their books, documents and other information cannot subsequently rely on the Fifth Amendment in order to invalidate the use of this material as evidence against them in a criminal trial in which they stand charged for evasion of income tax. In Nicola v U.S. (24) it was said at p. 784 that the purpose of obliging a tax payer to hand over information is to enable the authorities to calculate the tax and verify its accuracy, and the tax payer cannot refuse to supply information and the question was whether he had waived privilege. The constitutional right, it was said, was intended for the benefit of the witness and if it was not claimed, he was deemed to have waived it. He could only claim the privilege from the Government agency when refusing to produce his books. It was too late to do so, after the information had reached the agency with his consent.

 

6. These grounds are sufficient for rejecting every plea against the admissibility of the return of capital. If the appellant possessed a self-incriminatory privilege, he had waived it. I should add that I can see no foundation in the plea itself of privilege regarding see. 45 (1) of the Income Tax Ordinance.

 

            In Israel (unlike the United States) there is no constitutional assurance of the privilege and the legislature is free to repeal or deny it. In R. v Scott (9) Lord Campbell said (at p. 170):

           

"Finally, the defendant's counsel relies upon the great maxim of English Law memo tenetur se ipsum accusare. So undoubtedly says the Common Law of England. But Parliament may take away this privilege, and enact that a party may be bound to accuse himself: that is, that he must answer questions by answering which he may be criminated."

 

            The question whether a law which binds the citizen to deliver information, documents and returns to the Government in matters defined by law compels him to incriminate himself or whether it leaves it open to him to claim the self-incriminating privilege is ultimately, in the absence of express provision, a question of statutory interpretation. At all events, in the absence of express statutory provision, a citizen who files a return (or other material as aforesaid) under lawful duty is clearly not privileged against the use of the material in evidence against him in a criminal trial. Not only is there no provision in the Income Tax Ordinance precluding the use of a return under sec. 45 (1) as evidence in a criminal trial of the person making the return for an offence under the Ordinance, but sec. 4 (2) provides the reverse:

 

"No person appointed under... this Ordinance shall be required to produce in any court any return, document or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance, or with a view to, or in the course of a prosecution for any offence committed in relation to income tax."

 

A distinction must be made between the "self-incriminating privilege" and the "immunity" from the production of returns in court. See. 4 (2) denies the immunity of returns made to the Assessing Officer under see. 45 (1).

 

            Sec. 45 is not primarily directed to the disclosure of offences against the Ordinance, but the authority of the Assessing Officer to request returns, including one of capital, is to obtain full information about a person's income. The immediate purpose of the section is fiscal, to ascertain a person's true income so as to collect the tax due from him under the Ordinance. Were the citizen given the "privilege" to refuse to answer questions likely to incriminate him of an offence against the Ordinance (like the one dealt with here, omissions of income from the annual return), the privilege would prejudice not only the task of proving the criminal offence (which is the function of the privilege) but also the carrying out of the fiscal purposes of sec. 45. Two interpretations only are possible of this section - one which enables the Assessing Officer to obtain full information about a person's income and accordingly to determine and collect the tax due, and also, if the return discloses incriminatory matter, to pass such matter on to the Attorney-General for taking criminal proceedings; and one which permits a person receiving a notice under the section to refuse to answer incriminating questions and accordingly also to prevent the Assessing Officer from obtaining full information about his income, that is, to prevent the due tax to be fixed and collected. Of these two interpretations, the first is to be chosen, for the second frustrates the purpose of the law.

           

            A similar question was dealt with in England in connection with income tax law in Commissioners of Customs and Excise v Ingram (14). Under sec. 20 of the Finance Act, 1946, every registrable person must keep records and accounts, and preserve and produce them to the Commissioners as required. Every merchant, importer, etc. is also required to furnish the Commissioners information relating to the purchase or import of goods and to produce the books, accounts or other documents concerning the goods, as may be requested. The Act provides penalties for non-compliance with any request. Under Sec. 14 of the Crown Proceedings Act, 1947, the Crown may apply in a summary manner for the delivery of any accounts, the production of any books or the furnishing of any information under the enactments relating to purchase tax. The Commissioners applied for an order against the respondent. Lord Goddard stated (at p. 929) that

           

"counsel for the defendants has argued that the court would not order the production of documents which may incriminate the subject. In my opinion, one cannot make any such limitation here. The very object of the Finance Act, 1946, in the sections which relate to the matter, is to give to the Crown the power of investigating a person's accounts and so forth to see whether he is defrauding the Revenue by not paying that which he ought to pay... (It) is quite a common-place of legislation designed to protect the revenue of the Crown, as it is realised that all the information must generally be within the knowledge of the taxpayer or the subject,... to oblige him to do certain things which may have the effect of incriminating him... It is said that when a man is called on under sec. 20 to produce his documents, his books, invoices or accounts..., he is entitled to take objection and say: 'I will not produce this one or that one because it may incriminate me.' It seems to me that that would be stultifying the whole purpose of the section, and the claim for privilege, which, as between subject and subject in an action, may be made, has no application to this class of discovery or production."

 

These reasons are equally applicable in the present case.

 

Appeal dismissed

Judgment given on June 30. 1964.

CA 6601/96 Appeal and Counter-Appeal

 

1.   AES Systems (appellant in appeal and respondent in counter appeal)

2. Bamberger Rosenheim Ltd. (appellant in appeal and respondent in counter appeal)

v.

1.  Moshe Sa’ar (respondent in appeal and appellant in counter appeal)

2.   State of Israel (respondent in appeal and appellant in counter appeal)

 

 

The Supreme Court Sitting as the Court of Civil Appeal

[August 28th, 2000]

Before President A. Barak, Justices T. Or, E. Rivlin

 

Appeal and counter appeal on the Judgments of the Tel-Aviv District Court (Justice A. Goren) on June18th, 1996 in CC 1331/87, 500/88, 565/89.

 

Facts: Appellant No.1 developed independent computer word processing systems.  Appellant no.  2 was the exclusive distributer of the systems in Israel, and also provided its customers in Israel with maintenance and repair services.  The respondent had been an employed by the appellant as a computer technician, and had at the time of his employment, signed both an agreement not to compete with the appellant in anything related to the marketing and repair of Linear systems, as well as an “Agreement to Protect Confidentiality,” according to which he was obligated to maintain the absolute confidentiality of information that he may obtain in the framework of his employment.

 

The respondent was fired after twenty eight months of work, and started a business of computer systems services.  He advertised his services in the newspaper as a repair and maintenance technician for computer systems, including Linear systems, he approached the customers of the appellant directly, using a customer list of the appellant’s.  The newspaper advertisement led to a contract with The Armament Development Authority (RAFAEL-operated by respondent number two), according to which respondent would provide Linear services to RAFAEL.  These services replaced the repair and maintenance services that had been given in the past to RAFAEL by the appellant.

 

Against the background of these events three suits were filed in the District Court.  In one suit, in the framework of which a temporary injunction was issued prohibiting the respondent from dealing directly or indirectly in the sale or provision of service to Linear word processors for a period of eighteen months from the day the respondent was fired, which did not apply to the contract with RAFAEL, the appellant sued the respondent, for violation of his obligations to it, for doing damage to its property rights and its reputation, and for appropriating its trade secrets.  In the second suit the appellants claimed that the respondent made use of the magnetic disks and diskettes which store backup programs, application programs and diagnostic programs that were developed by the appellant and disks that were prepared for use by them, thereby doing damage to their property rights, and violating their copyright.  In this suit it was claimed that RAFAEL is assisting the respondent in his prohibited actions.  The appellants demanded damages from the respondents, and from RAFAEL. RAFAEL filed a third-party notice.  The third suit, directed by the appellant against RAFAEL, sought the return of hardware equipment and software lists that were lent by the appellant to RAFAEL and for payment of fair use.  RAFAEL filed a countersuit in which it sought removal of a barrier that the appellant created in its workspaces.  It also demanded equipment that it purchased and did not receive, and payment in the amount of NIS 7,022 for expenses it incurred as a result of violation of the agreement that the appellant had with RAFAEL.  Consideration of all these suits was joined. 

 

The District Court (Vice-President, Justice A. Goren), in its judgment, dismissed the appellants’ claims inasmuch as they related to violation of copyright or damage to reputation.  It was also held that the respondent violated the agreement not to compete with the appellant’s business, and that the respondent made use of the customer list of the appellant within the eighteen month period, and that a contract with RAFAEL resulted from the violation of the agreement not to compete.  It was also held that it was not proven that contracts with other customers resulted in agreements between those customers and the respondent, within the eighteen month period, and therefore it was not shown that agreement of the respondent in this matter was violated.  The court also held that as a result of the agreement between the respondent and RAFAEL, RAFAEL ceased receiving Linear System maintenance services from the appellants.  The court determined compensation for the appellants in the amount of $25,000.  Additionally, the State of Israel (under whose aegis RAFAEL was operating) was ordered by the court to pay the appellant for the value of certain hardware and software items, which were given to RAFAEL by the appellants, and which remained in their possession.  The appeal and the counter-appeal were directed against the judgment of the District Court.

 

Held:  The Court allowed the respondent’s appeal voiding the award of damages to the appellant for the contract with RAFAEL.  The court denied the appellants’ appeal and the appeal of respondent no. 2.  The Court also denied the respondent’s appeal inasmuch as it related to software and hardware. The appellants were ordered to pay the respondent’s costs in the sum of NIS 15,000.

 

For the appellant—Z Hubers

For Respondent no. 1 —A. Loit

For Respondent no. 2 –R. Zakai-Newman

 

Basic laws cited:

Basic Law: Human Dignity and Liberty, s. 8.

Basic Law: Freedom of Occupation, s. 4.

Legislation cited:

Contracts (General Part) Law 5733-1973, ss. 19, 25(b), 30, 31..

Restrictive Trade Practices Law 5748-1988.

Commercial Torts Law 5759-1999.

Contracts (Remedies for Breach of Contract) Law 5731-1970, ss. 3(4), 4.

 

Israeli Supreme Court cases cited:

CA 614/76 Jane Doe v. John Doe IsrSC 31(3) 85.
CA 294/91 Chevra Kadisha KAHSHA “Kehillat Yerushalayim” v. Kestenbaum IsrSC 46(2) 464.
CA 239/92 “EGGED” Israel Transport Cooperation Society v. Mashiach IsrSC 48(2) 66.
HCJ 1683/93 Yavin Plast Ltd. v. The National Labour Court IsrSC 47(4)702.
LCA 5768/94 A.S.I.R Import, Manufacture, and Distribution v. Accessories and Products Ltd. IsrSC 52(4) 289.
HCJ 1703/92 C.A.L. Cargo Airlines Ltd. v. The Prime Minister, IsrSC 52(4) 193.
HCJ 28/94 Tzarfati v. Minister of Health IsrSC 49(3) 804.
CA 2247/95 General Director of the Antitrust Authority v. T’nuvah Center for Cooperation and Marketing of Agriculture Products in Israel Ltd. 52(5) 213.
LCA 371/89 Leibovitz v. Eliyahu Ltd. IsrSC 44(2) 309.
HCJ 588/84 K.S.R.  Asbestos Trade Ltd. v. President of the Antitrust Tribunal IsrSC 40(1)29.
CA 312/74 Cable and Electric Cable Company in Israel Ltd. v. Martin Christianpalour IsrSC 29(1) 316.
CA 4/74 Berman v. Misrad Lehovalat Masaot Pardes Hana – Carcur “Amal” Ltd. IsrSC 29 (2) 718.
CA 618/85 Ma’ayanot Hagalil Hamaravi Ltd. v. Tavori BEHAR Soft Drinks Ltd. IsrSc 40(4)343.
CA 2600/90 Elite Israeli Company for Manufacture of Chocolate and Candies Ltd. v. Serengah IsrSC 49(5) 796.
CA 1142/92 Vargus Ltd. v. Camax Ltd.  IsrSC 51(3) 421.
CA 136/56 Fuchs. v. Eylon and Etzioni Ltd. IsrSC 11 358.
CA 136/64 “Francitext”Ltd. v. Utzitel Ltd. IsrSC 18(3) 617.
CA 238/73 Sharabi v. Chamtzani, IsrSC 28(1) 85.
CA 157/88 “EGGED” Israel Transport Cooperation Society v. Meiron IsrSC 44(1) 522.
HCJ 935/89 Ganor v. State Attorney IsrSC 44(2) 485 at pp. 513.
CA 155/80 Rav Bariach Ltd. v. Amgar IsrSC 35(1) 817.
CA 566/77 Dicker v. Moch IsrSC 32(2) 141.
CA 1371/90 Damati v. Ganor IsrSC 44(4) 847.
CA 901/90 Nahmias v. Columbia Trade and Manufacture Ltd. IsrSC 47(1)252.
LCA 672/96 “EGGED” Israel Transport Cooperation Society v. Rachtman (not yet reported).
CA 369/74 “TromAsbest” Company for Assembly of Pre Structures Ltd. v. Zakai, IsrSC 30(1) 793.
CA 4628/93 State of Israel v. Efromim Residence and Initiative (1991) Ltd. IsrSC 49(2) 265).
CA 214/89 Avneri v. Shapira IsrSC 43(3) 840.

 

Israeli National Labour Court cases cited:

LA 164/99 Frumer and Checkpoint Software Technologies Ltd. – Redguard Ltd. (not yet reported).
LC 54 3-110/ First Class Service Ltd. – Mati Kosacks LCC 26, 451 at p. 462.
LC 42 3-74/ Vardi-City of Netanyah LCC 14 59.

 

English cases cited:

Hepworth Manufacturing Co. v. Riyott, [1920] 1 Ch 1, 12.
Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd [1894] A.C.535.
Gledhow Autoparts Ltd v. Delaney [1965] 3 All. E.R. 288, 291.
Esso Petroleum Co. Ltd. V. Harper’s Garage (Stourport) Ltd [1967] 1 All E.R. 699.
Kores Manufacturing Co. v. Kolok Manufacturing Co. [1959] Ch. 108.
Lansing Linde Ltd v. Kerr [1991] 1 W.L.R 251.

 

French cases cited:

Cass. 5OC. 14 Mai 1992 Droit Social No. 12, 976 (1992).

 

Israeli books cited:

D. Friedman and N. Cohen Contracts 15 (Vol. A, 1991).
E. Zamir Contract Interpretation and Supplementation (1996).
A. Barak Interpretation in Law, Vol. 2, Statutory Construction (1993).

 

Israeli articles cited:

Porat ‘Considerations of Justice Between Parties to a Contract and Considerations of Guiding Behaviors in Israeli Contract Law’ Iyunei Mishpat 22.
Friedman “Contracts of Adhesion, Good Faith and Public Policy” Iyunei Mishpat 7, 431 at p. 433 (1979).
Gilo, ‘Toward a New Legal Policy toward Non-Compete Terms,’ Iyunei Mishpat 23, 63 (2000).
Cohen, ‘Freedom of Trade and Commercial Competition’ Iyunei Mishpat 19, 353 (1995).
Hermon, ““Public Policy” and the Limitations on Freedom of Occupation in the Perspective of Israeli and English Case Law,” The Cohen Book, 393,403 (1989).
Goldberg, ‘Limiting Freedom of Occupation of the Employee by Contract’ Mechkarei Mishpat 4, 7 (1987).
Goldberg ‘Freedom of Contract in Labour Law’ 672, 678 (1972)
Goldberg ‘Good Faith in Labour Law’ Sefer Bar-Niv 13 (1987).

 

Foreign books cited:

I.  T.  Smith and G.  Thomas, Industrial Law 86 (1996).
R. Upex, The Law of Termination of Employment 432 (5th. Ed., 1997)). 
Cheshire, Fifort and Furmston's, Law of Contract 420 (13th. Ed., 1996);
Chitty, On Contracts 890 (Vol. 1, 28th ed., 1999).
Trertel, The Law of Contract 416 (9th ed., (1995).
M. Weiss, Labour Law and Industrial  Relations in Germany 105 (1995).
A. Berenstein, Labour Law and Industrial Relations in Switzerland 134 (1994).
R.W. Arthure et al, Labour Law and Industrial Relations in Canada 138 (1993).

 

Foreign articles cited:

Hanna Bui-Eve, ‘To Hire or Not to Hire: What Silicon Valley Companies Should Know About Hiring Competitor’s Employees,’ 48 Hastings L. J. 981 (1997).
Gilson, ‘The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete,’ 74 N.Y.U.L. Rev. 575 (1999).
O’Malley, ‘Covenants Not to Compete in the Massachusetts Hi-Tech Industry: Assessing the Need for a Legislative Solution,’ 79 B.U.L.Rev. 1215 (1999).

 

Other:

Restatement 2d, Contracts, §§188, 188(1)(a).

 

 

JUDGMENT

 

President A. Barak

The Facts

 1.  Appellant No.1 developed independent computer word processing systems.  It used systems called “Linear systems”.   Appellant no.  2 (hereinafter, “the appellant”) received from appellant no. 1 the right of exclusive distribution of the systems in Israel.  It provided its customers in Israel with maintenance and repair services.  The respondent was an employee of the appellant.  He was employed as a computer technician.  At the time of his employment, he signed an agreement not to compete with the appellant in anything related to the marketing and repair of Linear systems.  This is the language of the agreement:

“The employee hereby undertakes not to compete with B/R [the appellant A.B.]  either directly or indirectly, whether or not he acts in his capacity as an employee of B/R, to the extent that any loss is caused by such competition to the business of B/R as distributor, marketer and service provider for equipment made by Linear and/or any other name by which such equipment will be called in the future.  So too the employee undertakes not to take any action that would undermine, eliminate, or damage B/R’s relationships with its customers."

The respondent signed an “Agreement to Protect Confidentiality.”  According to it he was obligated to maintain the absolute confidentiality of information that he might obtain in the framework of his employment.  The respondent was obligated not to make use of such information nor utilize it for commercial purposes.  Information that the respondent already possessed before beginning his employment and information that was available to the public was outside the purview of the agreement.  Both agreements were not limited in time. 

2.  After twenty eight months of work, the respondent was fired.  He started a business of computer systems services.  He took out an advertisement in the newspaper offering his services as a repair or maintenance technician for computer systems, including Linear systems.  In addition, he directly approached the customers of the appellant, using a customer list of the appellant’s that he had. As a result of the newspaper advertisement a contract was signed between the respondent and the Armament Development Authority (RAFAEL-operated by respondent number two) according to which the respondent would provide Linear services to RAFAEL.  These services came in place of the repair and maintenance services which the appellant had given in the past to RAFAEL.

3.  Against the background of these events three suits were filed in the District Court.  In one suit, the appellant sued the respondent for violation of his obligations toward it, for doing damage to its property rights and its reputation, and for appropriating its trade secrets.  In the framework of this suit the District Court granted a temporary injunction which prohibited the respondent from dealing directly or indirectly in the sale or provision of services for word processors of the Linear type until the expiry of eighteen months from the day the respondent was fired.  The injunction did not apply to the contract with RAFAEL.  In the second suit the appellants claimed that the respondent made use, in the course of providing services to his customers, of the magnetic disks and diskettes which store backup programs, application programs and diagnostic programs that were developed by the appellant and disks that were prepared for use by them.  In this the respondents, according to the appellants’ claim, violated their property rights and infringed on their copyright.  In this suit it was claimed against RAFAEL that it is aiding the respondent in his prohibited actions.  The appellants demanded compensation from the respondents, and from RAFAEL, for causing by their behavior the breach of contracts between the appellant and its customers, the breach of an implied term that arose from the work relationship between the appellant and the respondent, and for unjust enrichment.  RAFAEL for its part filed a third-party notice.  The third suit was directed by the appellant against RAFAEL, for the return of hardware equipment and software materials that were lent by it to RAFAEL and for payment of fair use for them.  RAFAEL for its part filed a countersuit in which it requested removal of a block that the appellant created in its workspaces.  It also demanded the supply of equipment that it purchased and did not receive, and payment in the amount of NIS 7,022 for expenses it incurred as a result of breach of the agreement that the appellant had with RAFAEL.  All of these suits have been joined for the purpose of consideration by the court.

 4.  In a comprehensive and thorough judgment the District Court (Vice-President, Justice A. Goren) dismissed the claims of the appellants inasmuch as they related to infringement of their copyright or damage to their reputation.  On the other hand, it was held that the respondent breached the agreement not to compete with the appellant’s business.  So too it was held that the respondent had made use of the customer list of the appellant.  Breach of the agreement not to compete yielded – within the eighteen months during which the temporary injunction was issued (this being the period to which the appellant limited its claims) – the contract with RAFAEL.  As for contracts with other customers based on the customer list in the possession of the respondent, it was held that it was not proven that these yielded -- during the limitation period of eighteen months -- agreements between those customers and the respondent and therefore it is not to be said that the respondent’s agreement in this matter was breached.  The Court held that as a result of the agreement between the respondent and RAFAEL, RAFAEL ceased to receive maintenance services from the appellants for the Linear systems in RAFAEL’s possession.  For these losses the court held that the respondent was to compensate the appellants in the amount of $25,000.  So too, a court ordered the State of Israel (under whose aegis RAFAEL was operating) to pay the appellant the value of certain hardware and software items given to RAFAEL by the appellants, and which remained in their possession.

The Appeals

5.  The appeal and the counter-appeal before us are directed against this judgment.  The appellants’ claim that it should be determined that the respondent made prohibited use of the programs that were developed by them and these actions damaged their property rights and their reputation.  They also claim that the District Court erred in holding that the marketing and advertising actions undertaken by the respondent during the eighteen months are not to be seen as a breach of their agreements with the appellants, even if this breach did not result in transactions.  The respondent, for his part, appeals the decision requiring him to pay damages to the appellant for his contract with RAFAEL.  He also appeals (alternatively) the amounts that were awarded.  The State of Israel (which operates RAFAEL) claims, in an appeal that was filed on its behalf, that it was inappropriate to require it to pay the appellants the value of the software and hardware items, either because they were not supplied to it at all or because the appellant is not entitled to payment for them.

Property Rights of the Appellant, Damage to Reputation, and Compensation for Software and Hardware Items

6.  The parties’ claims on these matters ask us to intervene in the factual findings of the trial court.  We will not do so.  The decisions of the District Court are based on findings that were determined on the basis of expert opinions and testimony.  These findings are well anchored in the evidentiary material and we will not interfere in them.  This also applies to the property rights of the appellant and to the damage to its reputation.  We have also not found that it would be appropriate to intervene in the judgment of the District Court as to the compensation for software and hardware items that were handed over to RAFAEL.  The factual findings in these matters rely on proper interpretation of the relevant documents and of the evidence that was brought before the District Court; we will not interfere in them.

Limiting Freedom of Occupation

7.  There are two questions before us: The one is whether the obligation of the respondent not to compete with the appellant is lawful; the second is whether it was lawfully determined that the respondent is not liable for the use that he made of the customer list, as this usage did not result in a contract with the customers within the period of eighteen months.  These two questions are related to one central issue, which relates to the validity of agreements which limit the freedom of occupation.  But the fundamental starting point for examining these issues is found in the provisions of section 30 of the Contracts (General Part) Law 5733-1973 which establishes:

"a contract whose execution, content, or purpose are illegal, immoral or against public policy -- is void."

"Public policy" reflects the fundamental approaches of Israeli society as to the appropriate level of behavior in contractual relationships.  It expresses the position of Israeli law as to what is permitted and what is prohibited in contractual relationships.  The content of public policy changes from society to society; it changes in any given society from one point in time to another point in time (see CA 614/76 Jane Doe v. John Doe [1] at p. 94).  The judge learns about the core values of Israeli society and the approach of Israeli law as to what is permitted and what is prohibited from the totality of values of the legal system.  Primary among these values are the constitutional values of the law and the regime.  Therefore, human rights anchored in the basic laws constitute a central source – even if not the only source -- from which the judge draws the values which come together to form the Israeli “public policy".  And note: human rights in the basic laws are directed toward public entities.  They do not grant, on their own and directly, rights to an individual as against another individual.  However, the basic rights -- and other constitutional provisions anchored in the basic rights -- establish a system of values and core concepts in the framework of which the law (the public and the private) operates and develops (see CA 294/91 Chevra Kadisha KAHSHA “Kehillat Yerushalayim” v. Kestenbaum  [2] at p.  531; see CA 239/92 “EGGED” Israel Transport Cooperation Society v. Mashiach [3]).  These core values also determine the content of "public policy."  They are not the only ingredients of "public policy."  The approaches of Israeli society to what is permitted and prohibited in contractual relationships are not only determined by the values which express human rights.  Public policy extends over further values, goals and interests, which reflect the policy of Israeli society (its public policy).  Therefore, national security, public peace, the welfare and strength of the nation are also values and interests which shape its  "public policy."

8.  The values of a legal system, its core values, purposes and interests, are in constant conflict.  When this conflict takes place in the framework of the basic laws themselves, it is resolved by the balances (vertical and horizontal) which apply to the matter (as to the vertical balance, the limitation clause in section 4 of the Basic Law: Human Dignity and Liberty and in section 8 of the Basic Law: Freedom of Occupation).  When this conflict takes place in the framework of private law -- and in our case, in establishing the parameters of "public policy" -- it is resolved by the proper balance between the conflicting values and interests.  This balance is determined by the relative weight of the competing interests and values in the framework of the private law.  And it should be noted that these values and interests are not solely the values and interests of the individual versus another individual.  These are also and primarily the values and interests of society as to the validity of contracts between individuals.  Indeed, "public policy" reflects the public interest which within its purview also takes into consideration the interests of various individuals.  It constitutes, by its very essence, a limitation on the parties’ free will.  Against this background we will focus our gaze on terms limiting the freedom of occupation.

Public Policy and Clauses Limiting Freedom of Occupation

9.  What does "public policy" require as to terms between employer and employee which limit the freedom of occupation, and in our case, terms by which upon termination of employment an employee agrees not to compete with the employer and not to make use of information received during his period of employment?  In order to develop "public policy" in this context it is necessary to understand the values, principles and interests competing for primacy, and the proper balance between them (see the judgment of the National Labour Court LA 164/99 Frumer and Checkpoint Software Technologies Ltd. – Redguard Ltd. [29] (para. 11) (hereinafter: "the Checkpoint case”)).  We will open with values, principles and interests which support granting validity to the contractual obligations the parties have taken upon themselves.  A first principle that is to be taken into account is freedom of contract.  From this principle the approach is derived that contracts are to be kept: pacta sunt servanda.  The contract is the "law" that the parties have established between themselves and which they must keep.  A civilized society cannot exist and develop if contracts that are made are not honored.  The public interest – an interest that reflects concepts of justice, morality and social efficiency together – is that obligations that a(n adult) person takes upon himself will be honored by him (see D. Friedman and N. Cohen Contracts 15 (Vol. A, 1991)[39]; E. Zamir Contract Interpretation and Supplementation (1996)[40]; A. Porat ‘Considerations of Justice Between Parties to a Contract and Considerations of Guiding Behaviors in Israeli Contract Law’ [42] at 647).  And note: I do not hold that it is "public policy" that contracts are to be kept.  Public policy is the weighted result which results from the internal balancing of values and principles which are under consideration.  However, I am of the opinion that freedom of contract and the performance of contracts are central values and interests which come together to form – in their balancing with other interests and values -- "public policy" in Israel (see Friedman “Contracts of Adhesion, Good Faith and Public Policy” [43] at p. 433).  The principle of freedom of contract is to be given substantial weight, as it reflects a constitutional right and a central public interest.

10.  A second interest that is to be considered is the personal advantage (to the employer) and the public advantage (to society as a whole) in protecting the employer from competition by the employee in general, and from use of information that he acquired from the appellant, in particular (see HCJ 1683/93 Yavin Plast Ltd. v. The National Labour Court [4] at p. 708).  In this context the investment of the employer in his business overall is to be particularly emphasized, as well as his investment in training his employees and in his trade secrets, in particular.  (See Gilo “Toward a New Legal Policy toward Covenants not to Compete” [44] at 63).  This would be the interest (private and public) that the employer be given protection for his investments in training his employees, and in building a client base and work methods.  Certain aspects of this interest are anchored in the freedom of property itself.  Other aspects stem from the public interest.  Indeed, there is a concern that if the employer is not able to protect these interests, he will not invest the necessary investments, and the public interest will be damaged (compare LCA 5768/94 A.S.I.R Import, Manufacture, and Distribution v. Accessories and Products Ltd. [5]).

11.  I have explained two considerations which support the validity of clauses limiting freedom of occupation.  What are the values, principles, and interests which are found at the core of the approach which desires to invalidate these clauses?  A first principle that is to be considered is freedom of occupation.  This is a constitutional principle, and is anchored in the Basic Law: Freedom of Occupation.  It is derived from human dignity, and from freedom of thought and action.  The significance of freedom of occupation is, inter alia, the freedom of an employee who concluded an employment relationship with his employer to contract with any employer with whom he desires as well as the freedom of the employee to start a business of his own, without being bound by agreements limiting trade.  Freedom of occupation is derived from freedom of competition.  (See HCJ 1703/92 C.A.L. Cargo Airlines Ltd. v. The Prime Minister [6]; HCJ 28/94 Tzarfati v. Minister of Health [7]).  However, freedom of competition is a public interest that stands on its own (see CA 2247/95 General Director of the Anti-Trust Authority v. T’nuvah Center for Cooperation and Marketing of Agriculture Products in Israel Ltd. [8] at p. 229). It was justly noted that "free competition is likely to bring about reduced prices, improved quality of the product and improvement of the service which is given with its sale" (President Shamgar in LCA 371/89 Leibovitz v. Eliyahu Ltd. [9] at p. 327; HCJ 588/84 K.S.R.  Asbestos Trade Ltd. v. President of the Antitrust Tribunal [10] at p. 37; Cohen “Commercial Competition and Freedom of Occupation [45] at p. 354 (1995)).  Expression for this public interest has been given in Israeli law inter alia  in anti-trust legislation (See the Restrictive Trade Practices Act 5748- 1988)  At the foundation of this law is competition, which was intended to ensure efficient allocation of resources and increased efficiency (see 2247/95 supra, at 229)  Judge Adler rightly emphasized in the Checkpoint case that: 

“The modern market is based on the existence of free competition in the open market and a free economy, inter alia, as to capital, and particularly human capital....  Free competition advances the marketplace and brings about, inter alia, reduction in prices for the consumer.  A competitive market encourages establishment of new companies, including companies started by employees who compete with their previous employers.  The employees offer their talents to various employers and compete with each other for places of work.  The employers on their part, offer improved working conditions with the goal of attracting skilled labor. . .  Society is interested in rapid and free transfer of information in the marketplace."  (Ibid. para. 14).  

This principle of freedom of occupation -- and the freedom of competition derived from it -- is to be given heavy weight, as it reflects a constitutional right and important public interest.

12.  A second interest which is to be considered is the employee himself.  His labor is his property, spiritual and physical.  It is the basis for his self-realization and fulfillment.  His freedom of choice is his life.  His capacity to choose an occupation for himself is the source of his existence and his property.  His training is the means by which he will be able to compete in the workplace.  Keeping him from his work for a specified period of time may remove him entirely from the workforce and bring about the destruction of many years of training.  "A person's place of work, where he spends at least a third of his day, is not merely a means of support, but a place from which he hopes to achieve self-realization and fulfillment.  Limiting the mobility of the employee will damage his right to personal fulfillment" (The Checkpoint case, paragraph 14).  This is primarily so in the context of employment in the field of high-tech.  These interests are first and foremost the interests of the employee.  But they also constitute the interest of the public.  "The good of the public demands that generally, knowledge, rules and professional skills acquired by an employee in his work will be used without limitation, as such use is a blessing to the individual and the public as one" (Justice Berinson in CA 312/74 Cable and Electric Cable Company in Israel Ltd. v. Martin Christianpalour [11] at p. 320; Hermon, ““Public Policy” and the Limitations on Freedom of Occupation in the Perspective of Israeli and English Case Law,” [46] 403).  This is primarily so in the fields of high-tech, in which the public as a whole has an interest in their development for the good of society.  Indeed, the public good justifies recognizing the freedom of the employee to choose for himself employment at his will.  This was justly noted by Judge Astbury in the Hepworth case (Hepworth Manufacturing Co. v. Riyott [1920] [32]) when he said:

“A man’s aptitude, his skill, his dexterity and his manual and mental ability may not, nor ought to be, relinquished by an employer.  They are not his masters [sic] property, they are his own, they are himself.”  Moreover, in a contractual relationship, the employer and the employee are not of equal status.  The employer generally is in a stronger bargaining position.  Justice Berinson discussed the “weakness of the employee versus the employer, who may dictate the terms of the employment contract."  (CA 4/74 Berman v. Misrad Lehovalat Masaot Pardes Hana – Carcur “Amal” Ltd. [12] at p. 722). 

The National Labour Court emphasized that "labour law is guided by a basic principle, which is based on the presumption of the fundamental inequality between the power of the employee and the power of the employer".  (Checkpoint case, paragraph 14).  Of course, this inequality changes over time.  The matter is conditioned on the structure of the labour market and the strength of the professional association.  However, in principle it may be said that the employee's interest and the public interest is to protect the work capacity and creative capacity of the employee.

Balance between Conflicting Considerations

13.  The various considerations which come together to form "public policy" do not all lead in one direction.  We have before us "competing" considerations (Vice-President Ben-Porat in CA 618/85 Ma’ayanot Hagalil Hamaravi Ltd. v. Tavori BEHAR Soft Drinks Ltd. [13] at p. 348; see also CA 2600/90 Elite Israeli Company for Manufacture of Chocolate and Candies Ltd. v. Serengah [14] at p. 808).  The one pair of considerations leads in most cases to the recognition of the validity of contractual clauses limiting the freedom of occupation of the employee.  The second pair of considerations also leads in most cases to invalidating such contractual terms.  The normative content that will be given to the concept of "public policy" constitutes, therefore, the result of the balance between the conflicting values, principles, and interests.  I have explained this in one of the cases, when I noted:

“As against the freedom of occupation stand other values, which the law also seeks to protect.  The protection given to freedom of occupation is a result of the balance that stems from the confrontation between freedom of occupation on the one hand and other individual liberties (such as freedom of property, freedom of contract (as part of human dignity and liberty) on the other, and the confrontation between the freedom of occupation and the public interest (such as the public interest in the protection of professional secrets).  . . . as against the freedom of occupation of the employee and the new employer stand the interests of the original employer that are worthy of protection, including his property (section 3 of the Basic Law: Human Dignity and Liberty) and perhaps also his privacy (section 7).  The freedom of contract of the original employer and the public interest are also to be considered.” (HCJ 1683/83 [4] supra at p. 708; see also CA 239/92 supra, at p. 72; CA 1142/92 Vargus Ltd. v. Carmax Ltd. [15]; see also LC 54 3-110/ First Class Service Ltd. – Mati Kosacks [30] at p. 462).

14.  Israeli case law, in the footsteps of English case law, has determined that the criterion for balance between the competing interests is reasonableness.  A contractual limitation on the freedom of occupation of the employee will not damage “public policy” if the limitation is reasonable in terms of the interests of the parties and in terms of the public interest.  Lord MacNaghten’s words are well known:

 “It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable -- reasonable, that is, in reference to the interest of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public” (Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd [1894] [33]).

These words and similar ones have been quoted at length in Israeli case law (see CA 136/56 Fuchs. v. Eylon and Etzioni Ltd. (hereinafter: “the Fuchs case”) [16] at p. 361; CA 136/64 “Francitext”Ltd. v. Utzitel Ltd. [17] at p. 626; CA 238/73 Sharabi v. Chamtzani [18]; CA 4/74 [12] supra; CA 157/88 “EGGED” Israel Transport Cooperation Society v. Meiron [19] at p. 526).  Of course the reasonableness test is an appropriate and good test.  However, it does not advance us very much, as the key question is what are the tests for determining the reasonableness of the contractual limitation.  Reasonableness means proper balance between competing values, interests and principles.  (See HCJ 935/89 Ganor v. State Attorney [20] at p. 514; A. Barak Interpretation in Law, 663 (volume two, 1993) [41]).  The balance is appropriate if we give the correct weight to the various considerations that are to be taken into account.  What is the proper weight -- and what, therefore, is the proper balance -- among the various considerations that are to be taken into account in providing an answer to the question whether the employee’s agreement not to compete is reasonable?

"Legitimate Interests”

15.  The fundamental starting point should be to avoid the approach of "all or nothing".  It is not to be said that all clauses limiting the freedom occupation of the employee who departs his workplace are consistent with "public policy."  So too, it is not to be said that all such clauses go against "public policy."  The validity of clauses which limit freedom of occupation should be determined by the legitimate interests which they protect.  Indeed, this was the approach taken by the Supreme Court when it placed the "legitimate interests of the parties and the public” in the center of its analysis.  Justice Berinson explained this, noting:

"the limitation must meet the double condition that it is necessary for the protection of the legitimate interests of the employer from whose workplace the employee has departed and that it is for the good of the public" (CA 312/74 [11] supra  at  319). 

Justice Bechor reiterated this approach noting:

"the general law is that there exists the right to freedom of occupation in the field of the employee who has left a place of work with an employer.  And if there is an agreement which limits him in this freedom of occupation after the conclusion of his work with the employer, two conditions must be met, in order for this limitation to be valid.  The first condition is that it is necessary to protect the legitimate interests of the employer from which the employee has left, and the second condition is that this is also necessary for the good of the public in terms of the interests of the two parties" (CA 155/80 Rav Bariach Ltd. v. Amgar  [21] at p. 825).

M. Goldberger wrote in a similar vein:

"there is nothing wrong with limiting the right of a person to choose their occupation and employment up to the boundaries of the ‘limited right’ of his former employer in protecting his legitimate interests" (Goldberg, ‘Limiting Freedom of Occupation of the Employee by Contract’ [47] at 27 (1987)).

Professor Cohen takes a similar approach:

"a valid limitation of freedom of occupation is one that protects a legitimate interest of one in whose favor it is applied, and it must be reasonable both in terms of the parties and in terms of the public (Cohen, ‘Freedom of Trade and Commercial Competition’ [45]).

Comparative law undertakes a similar approach (as to the appropriate use of comparative law in the matter of limitation of freedom of occupation see CA 566/77 Dicker v. Moch [22] at p. 146).  The American Restatement 2d (Contracts) [61] establishes that a non-competition clause between an employer and employee is not reasonable if (section 188(1) (a)):

"The restraint is greater than is needed to protect a promisee’s legitimate interests."

English law takes a similar approach (see I.  T.  Smith and G.  Thomas, Industrial Law 86 (1996) [50] as well as Gledhow Autoparts Ltd v. Delaney [1965] [34]).  This approach is also common in French law (see Cass. 5OC. 14 Mai 1992 Droit Social No. 12, 976 (1992) [38].  Indeed, the relevant question is what are the interests considered legitimate -- in terms of the parties and the public --by the legal system, which clauses limiting freedom of occupation lawfully protect.

16.  In connection with "legitimate interest" it has occasionally been emphasized in the case law that both the legitimate interests of the parties and the legitimate interests of the public are to be considered, and that the public interest is secondary to the legitimate interests of the parties.  The following words of Justice Berinson which relate to the consideration of "the public good" are typical:

"the public good remains important; however, it has always been of secondary importance compared with the first reason which relates to the interest of the parties themselves" (CA 4/74 [12] supra, at p.722; see also CA 1371/90 [23] supra; CA 238/73 [18] supra at p.  91).

However, it has been emphasized "there exist extraordinary cases, as in the example of the creation of a harmful monopoly, in which the public interest would be sufficient to justify invalidating a clause of that type" (CA 901/90 Nahmias v. Columbia Trade and Manufacture Ltd. [24] at p. 264).  Personally, I do not believe it is appropriate to distinguish between the legitimate interests of the parties and the legitimate interests of the public.  This is a matter of invalidating a contractual clause on the grounds of "public policy."  It appears that the perspective is that of the public.  The legitimacy of the parties’ interest is determined, therefore, from the perspective of public policy.  Moreover: the various human rights -- such as freedom of contract, freedom of occupation, property rights and other human rights -- express both the private interest and the public interest.  Indeed, we must not separate between the legitimate interests of the parties (as opposed to an undefined interest) and the public interest.  This is a matter of the public interest, which takes account of the totality of the facts, including the legitimate interests of the parties.  Lord Pierce discussed this in a key case on this issue:

“Although the decided cases are almost invariably based on unreasonableness between the parties, it is ultimately on the ground of public policy that the court will decline to enforce a restraint as being unreasonable between the parties...  There is not, as some cases seem to suggest, a separation between what is reasonable on the ground of public policy and what is reasonable as between the parties.  There is one broad question: is it in the interest of the community that this restraint should, as between the parties, be held to be reasonable and enforceable?"(Esso Petroleum Co. Ltd. V. Harper’s Garage (Stourport) Ltd [1967] [35] 724).

Indeed, the employer has his own interest and the employee his own interest.  Those interests may be different from the public interest.  But we are not interested in the parties’ interest.  We are interested in the legitimate interests of the parties.  And the legitimacy of the interest is determined by general considerations of the legal system, its principles and approaches.  The public interest and the legitimate interests of the parties are one and the same.  Therefore, whilst I will continue to discuss the legitimate interests of the parties and the legitimate interests of the public, I do not see them as separate concepts, but a uniform concept of the legitimate interests of the public ("public policy") which takes into account for its part, inter alia, the parties’ interests, whereby some of them will be protected (the "legitimate" ones) and the others will not be protected.

17.  From the perspective of the legitimacy of the interests the following conclusion is warranted: as a rule, the employer does not have "a legitimate interest" that a non-competition agreement will be given validity, without any other connection to the other interests of the employer; similarly, as a rule the employee does not have a "legitimate interest" that a non-competition agreement will be invalidated, without any connection to the other interests of the employer.  Indeed, as a rule, the employer's interest in preventing a former employee from competing with him, without this coming to protect additional interests (beyond the non-competition), such as trade secrets or customer lists, is not a legitimate (nor a "protected") interest.

Non-Competition for its Own Sake

18.  I will open with the employer’s interest that a former employee not compete with him.  In this matter we must presume that the employer does not have trade secrets or customer lists or another “legitimate interest” which he seeks to protect.  The single interest claimed by the employer is his wish – a wish that is expressed in a non-competition clause– that his employer not compete with him.  Is this “bare” interest – non-competition “on its own” – a “legitimate” interest to be protected, in such a manner that a non-competition clause will not be considered against “public policy”?  This problem came before the court in the Fuchs case, in which Justice Landau distinguished between an employee’s agreement with his employer not to compete with him and a contract in which the seller of goodwill undertakes an obligation vis-à-vis the buyer not to deal in a competing business.  In relating to the first type of case – the type we are dealing with in this appeal – Justice Landau writes:

“The tendency to invalidate the agreement is much greater in the first type.  The reason for this is that in such cases the employer is not protecting an existing interest but is trying to obtain an advantage he is not entitled to, as the rules of commerce require him to resign himself to the competition of any person dealing in similar trade, and this includes the competition of his employee, after he has left his employment, with the condition that the employee is not utilizing to his advantage the trade secrets of his employer or the special ties which he made with the clients of his employer during the period of his employment with the employer.  Therefore, the court provides a remedy for the employee on whom the employer has imposed, due to his superior bargaining position, an agreement which limits his freedom of occupation – and permits the prohibited.” (Fuchs case, p. 361)

In a similar vein Justice Bechor held:

“The general law is that there exists a right to freedom of occupation in the profession of the employee who has left his employer’s workplace.  If there is an agreement which limits him in this freedom of occupation after the conclusion of his work with the employer, two conditions must be met so that this limitation will be valid.  The first condition is that it is necessary for the protection of the legitimate interests of the employer which the employee has left, and the second condition is that the matter also is necessary for the good of the public in terms of the interest of both parties.  The good of the public requires that the departing employee will generally be able to make use, without limitation, of the general knowledge and skill that he acquired in his work.  The legitimate interest of the employer is to protect his trade secret, and that is the first condition necessary to justify the conditioning of the limitation of freedom of occupation” (CA 155/80 [21] supra, at p. 825).

Justice Bejski repeated the same principal:

“Inasmuch as it is a matter of general knowledge and even professional skill that was acquired during the course of employment, the public interest requires that the employee will be able to used them with another employer or as an independent.  If you say otherwise, this may sentence the employee to abandoning the immediate profession for which he has qualified and he may become a burden on the public.  Not so as to special trade secrets which typify a specific business, the use of which by the employee may cause a loss to the employer.  As to the latter, and this includes ties with suppliers and customers, the employer is entitled to protection” (CA 1371/91 [23] supra, at p. 854).

This is also the approach of the National Labour Court.  In the Checkpoint Case the National Labour Court emphasized that “absent ‘trade secrets’ the principal of freedom of occupation prevails over the principal of freedom of contract” (Ibid, para. 14). 

President Adler noted that “a legal system protects the property of the employer, even during consideration of suits whose purpose is to limit an employee who worked with an employer from handing over trade secrets which belong to him.”  We find that as a rule a “bare” agreement not to compete, which does not protect the interests of the employer beyond the interest of non-competition “for its own sake” (such as his interests in protecting trade secrets and customer lists) does not shape a “legitimate interest” of the employer, and is subject to be invalidated as being against “public policy” (but see LCA 672/96 “EGGED” Israel Transport Cooperation Society v. Rachtman [25]).

19.  This is also the law in England.  In discussing non-competition agreements by an employee Professor Upex writes:

“To be enforceable, such covenants must protect the employer’s legitimate business interests, either trade secrets or goodwill and trade connections. It is not possible to prevent competition as such” (R. Upex, The Law of Termination of Employment 432 (5th. Ed., 1997)) [51].  Cheshire, Fifort and Furmston's, Law of Contract 420 (13th. Ed., 1996) [52]; see also Chitty, On Contracts 890 (Vol. 1, 28th ed., 1999) [53]; Trertel, The Law of Contract 416 (9th ed., (1995) [54]).

Jenkins, L.J. discussed this, noting:

 “An employer has no legitimate interest in preventing an employee, after leaving his service, from entering the service of a competitor merely on the ground that the new employer is a competitor” (Kores Manufacturing Co. v. Kolok Manufacturing Co. [1959]  [36] 125). 

Similar law applies in the United States.  The employer does not have a legitimate interest in preventing competition for its own sake.  He must point to an additional interest beyond the non-competition itself, such as trade secrets or customer lists (see Restatement [61] ibid, par. 188).  The German, Swiss, and Canadian, law take a similar approach. (see M. Weiss, Labour Law and Industrial Relations in Germany 105 (1995) [55]; A. Berenstein, Labour Law and Industrial Relations in Switzerland 134 (1994) [56]; R.W. Arthure et al, Labour Law and Industrial Relations in Canada 138 (1993) [57]).

20.  We will now turn to the employee's interest in competing with the employer.   Our premise here is that the employee undertook not to compete with his employer after the conclusion of his employment.  The employee seeks to be released from this obligation.  His claim is that this obligation damages his ability to compete with his employer.  Is this "bare" interest -- the competition "for its own sake" -- a "legitimate" interest that is to be protected, in a manner that a contractual obligation which limits it will be against "public policy"?  Similar to the matter of the employer, here too the answer is that only a legitimate interest of the employee will be sufficient to justify invalidating clauses limiting freedom of occupation.  The employee does not have a "legitimate interest" in competing with his employer under all circumstances.  There exist employer interests (such as his interest in protecting trade secrets and customer lists) which are worthy of protection.  In the framework of these interests, the employee's interest in competing retreats, and the employee's obligation not to compete with his employer is validated (see the Fuchs case, p. 361; CA 155/80 [21] supra, at p.  825).  Justice Berinson explained this, noting:

"The big difference between the employee's duty to protect the employer’s professional secrets and secret information and the limitation of freedom of occupation of the employee after his departure from employment with the employer must be pointed out.  Trade secrets and secret information are property rights of their owners and the employee is prohibited from using them for his own purposes or from revealing them to others at any point in time" (CA 312/74 [11] supra at 319). 

In a similar vein Justice Bejski noted, when relating to a term between an employer and employee limiting the freedom of occupation of the employee:

"The tendency to invalidate a restrictive clause  in an agreement of the first type is stronger -- because in that case the employer attempts to achieve an advantage that he is not entitled to, and this is as long as the employee does not take advantage of trade secrets or commercial ties that he established  during his work with the employer.” (CA 369/74 [26] supra at 796)

21.  What are the reasons that lie at the base of the approach that freedom of competition is not absolute, and that it does not always exist (as the employee claims) and is not always to be prevented (as the employer claims relying on a contractual obligation)?  My answer is that at the base of this approach there are three reasons: First there is the proper balance between the constitutional rights of freedom of contract on the one hand and freedom of occupation on the other.  This balance requires mutual concessions.  Freedom of contract is recognized.  The obligation of the employee not to compete with his employer is fulfilled.  However, it holds only where it protects a legitimate interest of the employer.  Similarly, freedom of occupation and the right to compete which derives from it -- are recognized.  The right of an employee to find himself an occupation, even if he is competing with his employer, is fulfilled.  However, it does not apply where it damages a legitimate interest of the employer.  Thereby, a proper balance between human rights which are competing for supremacy is found; second is the proper balance between the employer's interest in protecting his business and the employee's interest in fulfilling his employment potential.  This balance is achieved according to considerations of the public good.  As a rule, the public good demands that the trade secrets and customer lists of the employer are protected from use by an employee after his departure.  The same public good generally demands that the employee be enabled to compete with his employer and develop his employment potential, without being bound by an obligation that he undertook under conditions of what are largely unequal bargaining conditions.  Goldberg explained this, noting:

 “The public, as such, has an interest in developing the potential of the employee, and an employer is not entitled to prevent competition by his former employee even if said employee obtained all his knowledge from the employer.  However, if the employer has "a pure property interest" in preventing competition of this type, it is possible... to enforce a clause limiting freedom of occupation." (Goldberg ‘Freedom of Contract in Labour Law’ [48] at 678 (1972); 1371/90 [23] at 854).

Third, this balance reflects the relationship of trust that exists between an employee and employer.  This relationship of trust justifies obliging the employee not to do damage to the employer by means of use of secret information that has come into his possession during his employment (see LC 42 3-74/ Vardi-City of Netanyah [31] 59; Goldberg ‘Good Faith in Labour Law’ [49]).  I explained this in one of the cases when I noted:

"The employee has an obligation, derived from the relationship of trust between him and his employer and anchored in the contract with the employer and in the need to implement a contract in good faith, to protect the employer's trade secrets, not to use them for his own purposes or for the purposes of others and not to reveal them other than with the employer's permission" (HCJ 1683/93 [4] supra at 707).

So too this balance reflects the proper laws of commerce (see Commercial Torts Law 5759-1999), the principle of good faith and the fair conduct between employer and employee in our society (compare LCA 5768/94 [5] supra).  Justice Strasberg-Cohen explained this in one of the cases:

"One must consider the public interest in establishing a behavioral norm characterized by fairness and good faith.  In principal, such a balance requires that an employee who has left a workplace protect the trade secrets of his previous employer, live up to his duty of trust in him and not be unjustly enriched at his expense" (CA 1142/92 [15] supra at 429).

22.  Thus, the reasons I have explained justify a middle ground, according to which in the overall balance freedom of occupation prevails when all that stands against it is the employer's interest in non-competition, while freedom of contract prevails when alongside it stands a legitimate interest of the employer such as a "proprietary" or "quasi-proprietary” interest of the employer.  It is then the case that limiting competition “for its own sake” – a “bare” limitation which does not protect the employer’s interest beyond the interest in non-competition – does not protect any “legitimate interest” of the employer at all.  It goes against the public good and it will be invalidated in the framework of “public policy”.

On the other hand, limitation of competition which is intended to protect the interests of the employer in trade secrets, customer lists, reputation and the like the "legitimate interests" of the employer, and as a rule does not go against public policy.  This overall balance is achieved entirely in the framework of “public policy” and is shaped by “public policy” considerations...  ,There may therefore in a special case be a public interest that will justify deviation from this overall balance (see Gilo, ‘Toward a New Legal Policy toward Non-Compete Terms’ [44] at p. 75 (2000)).

Protection of the “Legitimate Interests” of the Employer

23.  Thus, limitation of freedom of occupation operates, as a rule, in the framework of the “legitimate interests” of the employer.   Examining  these interests raises three questions: the first, what are these interests, and how are they characterized; the second, what is the extent of the protection given to “legitimate interests” and what are the limitations which apply to a contractual obligation not to compete in the framework of the “legitimate  interests”; the third, what are the remedies that the employer is entitled to when the employee breaches his obligation not to compete in the framework of the “legitimate interests.”  We will discuss these questions separately.  We will do so only to the extent that the appeal before us raises those questions.

The Essence of the “Legitimate Interests”

24.  The case law recognizes trade secrets and customer lists as legitimate interests of the employer worthy of protection.  Occasionally these interests are described as “proprietary rights” of the employer (see for example CA 312/74 [11] supra, at 319).  In English literature the “proprietary interests” of the employer are referenced (see Upex [51] Ibid. at 433).  This list is not comprehensive and is not closed.  The “proprietary” language in this context raises difficult questions.  In my opinion, it is appropriate to move away from these characterizations.  The reasons found at the basis of the law, and not the label given to them, should determine the scope of the “legitimate interests” of the employer.  In the framework of this appeal it is not necessary to examine these questions in depth.  Thus, for example, I accept that the appellant’s customer list, in the circumstances of the matter before us, constitutes a “legitimate interest” for the appellant which enables limitation of the freedom of occupation of the respondent.

The Scope of the Protection Given to the Protected Interests

25.  Identifying the “protected interests” – such as trade secrets and customer lists – is only the beginning of the road in establishing the legality of limitation on freedom of occupation.  After it was determined that the contractual clause limiting freedom of occupation relates to the employer’s “legitimate interests”, the question arises whether the extent of the limitation is lawful.  Smith and Thomas discussed this, noting:

“Once there is a legally protected interest, the question which then arises concerns the extent to which the employer can bind the employee’s future conduct in order to protect that interest” (Ibid. [50] p. 88).

In a similar vein Chestire, Fifoot and Furmston note:

“The existence of some proprietary or other legitimate interest... must first be proved, and then it must be shown to the satisfaction of the court that the restraint as regards its area, its period of operation and the activities against which it is directed is not excessive”  (Chestire, Fifoot and Furmston’s, Law of Contract 420 (13th.  Ed., 1996)).

Even if an employer is entitled to the protection of his “legitimate interests” such protection is not absolute.  This is relative protection which must take into account the public interest (including the “legitimate interests” of the employee).  Justice Strasberg-Cohen explained this when she noted:

“Hand in hand with the recognition of the right to protect trade secrets, barriers and brakes have been created and relevant considerations have been established for bounding the limits of the protection that is afforded . . .  the confidentiality is relative and is not viewed as absolute.  It changes in accordance with the circumstances” (CA 2600/90 [14] supra at 807).

The test is one of reasonableness or proportionality.  The employer is entitled to protection of his “legitimate interests” to the appropriate proportion.  Beyond this proportion, the interest ceases to be legitimate.  What is this reasonableness or proportionality and how does it operate?

26.  The reasonableness or proportionality test seeks to ensure that the protection of the “legitimate interests” of the employer do not deviate beyond that which is necessary.  In this context the extent of the limitation is to be examined in terms of time, place, and type of activity.  The question in every case is whether the timeframe, limits, and type of limitation do not deviate beyond that which is reasonable and necessary in order to protect the legitimate interests of the employer.  President Adler explained this in the Checkpoint case, noting

"In the framework of the judicial balance, the courts must apply the proportionality and reasonableness test; –that is, they must examine whether the limitation on freedom of occupation passes the reasonableness test under the circumstances.  In this context, one must consider the reasonableness of the period of limitation, including the need to safeguard the trade secrets which belong to the prior employer, its scope, and its geographic range...  So too the measure of damage to the employee is to be examined as well as the measure of damage to the prior employer...  It is to be noted that the reasonableness test is a broad test, which includes the protection of many and varied interests of the employer.  However, the protected interest, generally, is the trade secrets which belong to him" (Ibid. paragraph 12).

The restrictive means must be adapted to the "legitimate interest" entitled to protection, and must not deviate from it (the test of time, place and type).  In this context the “legitimate interests” of the employee are also to be considered.  A limitation which denies to the employee the capacity to work in his field of expertise should not be recognized.  A limitation that denies to the employee his ability to make a living is not to be justified.  The restatement explains this, noting:

"The harm caused to the employee may be excessive if the restraint inhibits his personal freedom by preventing him from earning his livelihood if he quits” (Restatement, Second, Contracts [61] par.  188, comment c.  p. 43).

It is in this context that one may consider, inter alia, the question whether an employment contract guarantees the employee a (full or partial) salary during the period of limitation.  This practice (known as "Garden leave") is common in England (See I.T. Smith and G.H. Thomas, Industrial Law 306 (3th. Ed., 1996) [50]).  In Germany the law itself establishes that a contractual clause limiting freedom of occupation is legal only if the principal promises the agent a salary payment equal to at least half of his salary during the period of limitation (section 74(a) of the Commercial Code).  The case law has broadened this approach to include all employer-employee relations (See. M. Weiss, Labor Law and Industrial Relations in Germany 105 (1995) [55]).

27.  Alongside the employee interest one must also consider the public interest.  The public interest may demand invalidation of the limitation on freedom of occupation, which from other perspectives appears proportional.  The public interest is expressed, inter alia, in the needs of the marketplace, the development of industries and encouragement of competition.  Such is generally the case (see Gilo [44] Ibid.).  This is so in particular in high-tech industries (see Hanna Bui-Eve, ‘To Hire or Not to Hire: What Silicon Valley Companies Should Know About Hiring Competitor’s Employees’[58];Gilson, ‘The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete’ [59]; O’Malley, ‘Covenants Not to Compete in the Massachusetts Hi-Tech Industry: Assessing the Need for a Legislative Solution’ [60]).

28.  One may ask: if the validity of clauses limiting freedom of occupation is  limited only to situations in which the employer has a "legitimate interest," what need is there for such clauses, as generally the "proprietary" interest or the "quasi-proprietary" interest of the employer is protected without the need for an explicit clause (see HCJ1683/93 [4] supra)  The answer is that with the development of duties in the law which protect the "legitimate interests" of the employer, indeed the importance of clauses limiting freedom of occupation has diminished.  However, they are not superfluous, and this is so for two primary reasons: First, there is not complete overlap between the protection given by the general law to the "legitimate interests" of the employer and the protection given them in the framework of clauses limiting freedom of occupation; this is primarily so in all that relates to considerations of trust, fairness, good faith and fair dealing.  In these matters the general law is still in its early stages of development (compare LCA 5768/94 [5] supra) and therefore there is importance to the explicit contractual clause; second, the contractual clause has “evidentiary” importance.  On can see by it what is regarded by the parties as a trade secret or customer list or other "legitimate interest,” the importance attributed to it, the degree of knowledge that they had as to it, and the proportionality of the limitation (see Chitty [53] at 891).

Remedies

29.  Clauses limiting freedom of occupation beyond the legitimate interests of the parties go against "public policy," and are therefore void (section 30 of the Contracts (General Part) Law, also taking into consideration section 31 of the Contracts Law).  A clause which limits freedom of occupation in the framework of the legitimate interests of the parties is valid, and the party in breach is entitled to all the remedies given for breach of contract.  These remedies raise complex questions inasmuch as they relate to fulfilling the "legitimate interest" of the employer and to his protection.  These questions do not arise before us and I will not express an opinion on them.  I will only note that occasionally the question arises as to whether the court may limit the scope of a limitation on freedom of occupation in order to bring it within the requirements of reasonableness and proportionality.  Such was the action of the court in the case before us in limiting a limitation which had no timeframe to the timeframe of eighteen months.  The court will do so first and foremost through the use of the rules of construction.  “Where a contract is open to various interpretations, an interpretation which validates it is preferable to an interpretation according to which it is void” (section 25(b) of the Contracts (General Part) Law).   Indeed the presumption is that the purpose of a contract is that the freedom of occupation of the employee is limited as far as the legitimate interests of the employer.  If this presumption can be realized – taking into consideration other presumptions and the parties’ perspective, as it emerges from the contract and from the circumstances (see CA 4628/93 State of Israel v. Efromim Residence and Initiative (1991) Ltd. [27]) – via the language of the contract, the court will do so.  In this context, it is possible, in a suitable case, to limit general language by the purpose at its core, in such a manner that it will be constructed as applying only to the “legitimate interests” of the employer.  But what if the general rules of construction are not sufficient to save the clause from being voided?  In such a case the court may bring the limitation on freedom of occupation within the boundaries of the proportional or reasonable, and this by way of “severance” between the void portion and the valid portion (section 19 and section 31 of the Contracts (General Part) Law), but even in the absence of the option of severance -- and as a condition of enforcement (section 3(4) and section 4 of the Contracts (Remedies for Breach of Contract) Law 5731-1971) -- the court may limit the scope of the limitation to its proper proportion (see CA 1371/90 [23] supra at 856).  “If a person has undertaken an obligation as to the protection of a trade secret of another and it is too broad an obligation, there is no bar to limiting it and adjusting it to the proportionality of the secret within the information” (Justice Strasberg-Cohen in CA 2600/90 [14] supra at 808).

30.  Frequently in the type of case before us an interlocutory order is sought.  Generally the granting of an interlocutory order is sufficient to determine the entire conflict as the final order may be granted after the period of limitation has passed.  From this derives the importance of taking great care in this area.  An interlocutory order should not be general, and should be adapted to the legitimate interests of the employer.  Thus, for example, the order would not prevent employment of the employee by a new employer, but would prohibit him from handing over trade secrets and customer lists (see Lansing Linde Ltd v. Kerr [1991] [37]).  Such a careful approach is necessary partially due to the nature of freedom of occupation as a constitutional right (compare CA 214/89 Avneri v. Shapira IsrSC [28]).  The remedy of the employer will be in the proportion of damages he will be awarded, if it turns out at the end of the day that limiting the employment protected his “legitimate interests".

Interim Conclusion

31.  Before I move on to the special circumstances of the appeal before us, it would be proper to summarize the main points.  My position can be summarized by the following four propositions: first,  a clause between employer and employee limiting the freedom of occupation of the employee after the conclusion of his employment without protecting the ”legitimate interests" of the employer is void as going against "public policy"; second, a "legitimate interest" of the employer -- that gives validity to a clause limiting the freedom of occupation of the employee -- is a "proprietary" or "quasi-proprietary" interest of the employer in his trade secrets and customer lists (to the extent they are confidential).  This is not a closed list, and in determining the list of "legitimate interests” the relationship of trust between the employer and the employee, proper trade laws, and the duty of good faith and fairness between the employer and employee are to be considered; third, the protection given to the "legitimate interests" of the employer are not absolute.  Its extent is determined by tests of reasonableness and proportionality, which take into account its timeframe, scope and the type of the limitation; fourth, as a rule, an employer does not have a "legitimate interest" in his employee not competing with him after conclusion of his employment.  Therefore, limitation of the freedom of occupation of the employee which only realizes the employer’s interest that the employee not compete with him ("non-competition for its own sake") is against public policy.  The voidness of this limitation stems from the lack of a "legitimate interest" at its core, and therefore, as a rule, it is not appropriate to examine the reasonableness or proportionality of such a limitation.

From the General to the Specific

32.  The factual basis in the framework of which the legal problems in this appeal are examined is the one established by the District Court.  According to it the one legal question before us is whether the respondent breached a duty to the appellant by contracting with RAFAEL?  In my opinion, the answer to this question is in the negative. 

33.  What is the duty that was breached by the respondent in the RAFAEL case?  The respondent did not breach his duty not to make use of the customer list of the appellant.  The reason for this is that it has not been proven that the respondent approached RAFAEL on his own initiative and in any case his business ties with them are not to be seen as a result of use of the appellant's customer list.  Indeed, the duty that was breached by the respondent is the duty not to compete with the appellant. This agreement of the respondent not to compete with the appellant is a "bare" agreement (see paragraph 18 supra).  This is an agreement of "non-competition for its own sake".  Let us re-examine (see paragraph 1 supra) this agreement:

“The employee hereby undertakes not to compete with B/R [the appellant] either directly or indirectly, whether in his capacity as an employee of B/R or not, to the extent that there shall be in such competition any loss caused to the business of B/R as a distributor, marketer and service provider for equipment made by Linear and/or any other name by which such equipment will be called in the future.  So too the employee undertakes not to take any action that would undermine, eliminate, or damage B/R’s relationships with its customers."

This agreement-- in accordance with its construction, language and purpose – was intended to protect the appellant from competition “for its own sake”.  When the appellant wanted to protect itself from damage to its property, it did so in the framework of an additional agreement signed by the respondent, which included an “Agreement to Protect Confidentiality,” according to which the respondent undertook to keep in confidence information that he might obtain in the framework of his employment.  Indeed, the obligation of the respondent not to compete with the appellant – and this is the only obligation that was breached by the respondent – does not protect the “proprietary” or “quasi proprietary” interest of the appellant.  It does not protect a “legitimate interest” of the appellant.  It goes against “public policy,” and therefore is to be declared void.  All the appellant sought was to ensure for itself immunity from competition.  It is not entitled to do this, as such immunity goes against “the public interest.”  As to this, there is no significance to the reasonableness or proportionality of the obligation that the respondent took upon himself.  It is not proper to examine whether the limitation to eighteen months is reasonable or proportional.  The obligation in its entirety is void and voided.

34.  Until now I dealt with the obligation of the respondent not to compete with the appellant.  What about the additional obligation that he undertook to keep in confidence any information that he may obtain in the framework of his employment?  As to this matter, the appellant’s appeal is to be denied, if only for the reason that no causal connection has been shown between the breach of the obligation and the appellant’s losses.  Indeed, even if in the use of the respondent’s customer list the respondent breached his obligation, this breach did not cause the appellant any loss, as it has not been proven that within the eighteen months to which the obligation was limited, relationships between the respondent and those customers were developed.  This is sufficient to deny the appellant’s appeal on this matter.  Therefore, there is no need for me to deal with the question as to whether limiting the extent of the obligation not to make use of the information that he obtained in the framework of his employment, is reasonable and proportional.  As to this it is acceptable to me that this information is, under the circumstances, confidential information, entitled to protection in the framework of the “legitimate interests” of the employer.  But is the scope of the protection proportional and reasonable?  This question is not simple in the least.  It is sufficient for me to note, without making a determination on the matter, that there is room for the argument that the scope of this obligation under the circumstances is not reasonable and is not proportional.  We are dealing with the field of computers, this is a dynamic arena.  The scientific developments in this area are many.  Within a matter of months the reality changes unrecognizably.  Against this background there is room for the argument that a period of eighteen months is too long.  Indeed, I would be ready to examine whether in this evolving arena – in which not taking advantage of expertise for such a long period of time may do significant damage to work capacity– a stricter approach is not necessary.  However, as said, this is not to be determined in this appeal and I will leave it as open for future discussion.

In conclusion, we allow the respondent’s appeal and cancel the award of damages to the appellant for the contract with RAFAEL.  We deny the appellants’ appeal and the appeal of respondent no. 2.  So too, we deny the respondent’s appeal in all that relates to software and hardware. Under the circumstances, the appellants shall pay the respondent’s costs in the sum of NIS 15,000.

 

Justice T. Or  

I agree.

 

Justice E. Rivlin

I agree.

 

Decided as per the judgment of President Barak.

 

27 Av 5760

August 28, 2000

 

 

HCJ 2605/05

1.  Academic Center of Law and Business, Human Rights Division

2.  Major-General (ret.) Shlomo Twizer

3.  Yadin Machness

v.

1. Minister of Finance

2. Minister of Public Security

3. A.L.A. Management and Operation (2005) Ltd

4. Knesset

 

 

The Supreme Court sitting as the High Court of Justice

[19 November 2009]

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

 

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

 

Facts: The Knesset enacted the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (‘amendment 28’), which provides that the State of Israel will establish, for the first time, a (single) prison that will be operated and managed by a private corporation rather than by the state. The constitutionality of this law was challenged by the petitioners, who argued that amendment 28 disproportionately violated the rights of prison inmates as a result of the actual transfer of imprisonment powers to a private enterprise, and as a result of the concern that human rights in a private prison would be violated to a greater extent than in a state-run prison.

 

Held: (Majority opinion — President Beinisch, Vice-President Rivlin, Justices Procaccia, Grunis, Naor, Arbel, Joubran, Hayut) Amendment 28 violates human rights disproportionately and is therefore unconstitutional.

(President Beinisch, Vice-President Rivlin, Justices Grunis, Naor, Arbel, Joubran, Hayut) The concern that human rights in a private prison will be violated more than in state managed prisons addresses a future violation of human rights, and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. However, the human rights of prison inmates are violated ipso facto by the transfer of powers to manage and operate a prison from the state to a private concessionaire that is a profit-making enterprise. The denial of personal liberty is justified only if it is done in order to further or protect an essential public interest, and therefore the question whether the party denying the liberty is acting in order to further the public interest (whatever it may be) or is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. Therefore, amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself.

When the state transfers power to manage a prison, with the invasive powers that go with it, to a private profit-making corporation, it violates the human dignity of the inmates of that prison, since the public purposes that give imprisonment legitimacy are undermined and the inmates becomes a means for the private corporation to make profits (Justice Grunis reserved judgment on this issue).

The main public purpose underlying amendment 28 is the economic purpose of saving the state money.

The ‘additional’ violation of constitutional rights deriving from giving imprisonment powers to a private profit-making corporation is disproportionately greater than the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

The unconstitutionality of amendment 28 requires it to be set aside in its entirety, because it is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part. Were only the provisions concerning the granting of the invasive powers set aside, the remaining provisions would be unable to stand independently.

(Justice Procaccia) The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment depend upon the exercise of authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Transferring this power to a private enterprise undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional authority over the individual offender.

The main purpose of amendment 28, as can be seen from its legislative background and context, is to promote the welfare of prison inmates by reducing overcrowding in the prisons, improving services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. However, this benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign authority to a private concessionaire. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state.

(Minority opinion — Justice Levy) The state has not divested itself of its powers but merely exchanged them for supervisory powers. It is hard to see how this conflicts with the constitutional role of the government, and the mechanisms of indirect government should be examined on their merits.

It is premature to determine whether a private prison will violate human rights disproportionately. Time will tell. The law should be put to the test before the court reaches any conclusions on this matter.

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

 

Legislation cited:

Basic Law: The Judiciary, s. 15(d)(2).

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 5, 8, 9.

Basic Law: the Army, ss. 2, 3.

Basic Law: the Government, ss. 1, 44(a).

Basic Law: the Knesset, ss. 7(8), 7(9), 7A.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 12(a)(1)(b).

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 23, 67.

Deferral of Service of Full-Time Yeshivah Students, 5762-2002.

Emergency Powers (Arrests) Law, 5739-1979.

Execution Law, 5727-1967, s. 5.

General Security Service Law, 5762-2002, ss. 3, 4.

Internment of Unlawful Combatants Law, 5762-2002.

Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969.

Parole Law, 5761-2001.

Penal Law, 5737-1977, art. B1.

Police Ordinance [New Version], 5731-1971, s. 8.

Prisons Ordinance [New Version], 5732-1971, ss. 45A, 76(a), 78, 95B, 95D, 95E, 128F, 128G(a), 128G(b), 128I, 128K, 128K(c)(1), 128L, 128L(a)(1), 128L(a)(2), 128L(a)(3), 128M, 128O, 128R, 128R(c)(1), 128R(c)(4), 128R(c)(5), 128S, 128U-128X, 128V-128X, 128Y, 128Z, 128AA, 128AB, 128AE, 128AF-128AG, 128AF-128AL, 128AJ, 128AO, 128AS-128BA, 128AW.

Prisons Ordinance Amendment Law (no. 28), 5764-2004.

Release from Imprisonment on Parole Law, 5761-2001, s. 9(7).

State Comptroller Law [Consolidated Version], 5718-1958, s. 9(6).

Taxes (Collection) Ordinance.

Torts (State Liability) Law, 5712-1952

o t applies the provs  provision e same way as civil servants. toerein or an inmate held in custody therein'wever, for decidingTreatment of Mentally Ill Patients Law, 5751-1991, s. 9.

 

Israeli Supreme Court cases cited:

[1]      AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [2002] IsrSC 56(3) 673.

[2]      AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel (unreported decision of 7 December 2006).

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

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

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

[6]      CrimA 6659/06 Iyyad v. State of Israel (unreported decision of 11 June 2008).

[7]      HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[8]      CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221; [1995] IsrLR 1.

[9]      HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[10]    HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security (unreported decision of 12 February 2007).

[11]    PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

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

[13]    HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[14]    HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673; [1998-9] IsrLR 537.

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

[16]    HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [2004] IsrSC 58(5) 202.

[17]    HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [2001] IsrSC 55(3) 79.

[18]    HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [2003] IsrSC 57(3) 652.

[19]    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (unreported decision of 11 May 2006).

[20]    HCJ 355/79 Katlan v. Israel Prison Service [1980] IsrSC 34(3) 294.

[21]    HCJ 1163/98 Sadot v. Israel Prison Service [2001] IsrSC 55(4) 817.

[22]    CrimFH 10987/07 State of Israel v. Cohen (unreported decision of 2 March 2009).

[23]    HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2006] IsrSC 60(1) 38; [2005] (1) IsrLR 340.

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

[25]    HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[26]    HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (unreported decision of 10 May 2006).

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

[28]    HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [2006] (1) IsrLR 443.

[29]    HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [2006] (2) IsrLR 352.

[30]    HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[31]    HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[32]    HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2006] (3) 464; [2005] (2) IsrLR 335.

[33]    CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

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

[35]    HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[36]    HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

[37]    CrimA 4855/02 State of Israel v. Borovitz [2005] IsrSC 59(6) 776.

[38]    HCJ 39/82 Hanfling v. Mayor of Ashdod [1982] IsrSC 36(2) 537.

[39]    HCJ 2245/06 Dobrin v. Israel Prison Service [2006] (2) IsrLR 1.

[40]    LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[41]    HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[42]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[43]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

[44]    HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 529.

[45]    HCJ 410/90 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[46]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[47]    HCJ 4676/94 Meatreal Ltd v. Knesset [1996] IsrSC 50(5) 15.

[48]    HCJ 10203/03 National Census Ltd v. Attorney-General (unreported decision of 20 August 2008).

[49]    HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [1998] IsrSC 52(3) 679.

[50]    HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

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

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

[53]    CrimA 40/58 Attorney-General v. Ziad [1958] IsrSC 12 1358.

[54]    PPA 7440/97 State of Israel v. Golan [1998] IsrSC 52(1) 1.

[55]    HCJ 4253/02 Kariti v. Attorney-General (unreported decision of 17 March 2009).

[56]    CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [2000] IsrSC 54(2) 433.

[57]    CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [2003] IsrSC 57(4) 769.

[58]    HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [2001] IsrSC 55(3) 625.

[59]    HCJFH 5361/00 Falk v. Attorney-General [2005] IsrSC 59(5) 145.

[60]    HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

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

[62]    CrimA 7053/01 A v. State of Israel [2002] IsrSC 52(1) 504.

[63]    LHCJA 818/03 Zarka v. Israel Prison Service (unreported decision of 11 March 2003).

[64]    HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security (unreported decision of 9 March 2003).

[65]    HCJ 1319/03 Israel Bar Association v. Minister of Public Security (unreported decision of 1 March 2004).

[66]    HCJ 572/04 Berry v. Minister of Justice (unreported decision of 6 April 2005).

[67]    HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [1980] IsrSC 34(2) 566.

[68]    CA 404/61 Skivinskaya v. Uroshitz [1962] IsrSC 16(1) 347.

[69]    HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [1987] IsrSC 41(2) 449.

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

[71]    EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC 42(4) 177.

[72]    HCJ 410/91 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[73]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[74]    HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [2003] IsrSC 57(2) 102; [2002-3] IsrLR 165.

[75]    HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.

[76]    HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [2004] IsrSC 58(1) 529.

[77]    HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister (not yet reported).

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

[79]    HCJ 1074/93 Attorney-General v. National Labour Court [1995] IsrSC 49(2) 485.

[80]    HCJ 761/86 Miari v. Knesset Speaker [1988] IsrSC 42(4) 868.

[81]    HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [1991] IsrSC 45(3) 154.

[82]    HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[83]    Pischke v. Litscher, 178 F. 3d 497 (7th Cir. 1999).

[84]    Montez v. McKinna, 208 F. 3d 862 (10th cir. 2000).

[85]    White v. Lambert, 370 F. 3d 1002 (9th cir. 2004).

[86]    Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County, 2000 OK 2 (2000).

[87]    Richardson v. McKnight, 521 U.S. 399 (1997).

[88]    Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

[89]    Skelton v. Pri-Cor, Inc., 963 F. 2d 100 (6th Cir. 1991).

[90]    Rosborough v. Management and Training Corporation, 350 F. 3d 459 (5th Cir. 2003).

 

For petitioners 1-2 — G. Barnea, A. Wasserman, E. Michaely, Y. Berda.

The third petitioner represented himself.

For respondents 1-2 — Y. Genessin, R. Giladi, R. Keidar.

For the third respondent — Y. Shalheveth, B. Fiel, R. Kook, O. Roth.

For the fourth respondent — N. Elstein, R. Scherman-Lamdan, I. Eshet.

 

 

JUDGMENT

 

 

President D. Beinisch

The Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), provides that the State of Israel will establish for the first time a (single) prison that will be operated and managed by a private corporation rather than by the state. The arrangement provided in amendment 28 leads to a transfer of basic powers of the state in the field of law enforcement — imprisonment powers — the exercise of which involves a continuous violation of human rights, to a private profit-making corporation. As we shall explain below, this transfer of powers violates the constitutional rights to personal liberty and human dignity, which are enshrined in the Basic Law: Human Dignity and Liberty. The question of the constitutionality of this violation lies at the heart of the petition before us. It should already be said at the outset that, for the reasons that will be set out below, we have arrived at the conclusion that the aforesaid amendment does not satisfy the test of constitutionality.

The main facts and the arguments of the parties

1.    On 31 March 2004, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’) was published. According to the amendment, chapter C2 was added to the Ordinance. This chapter is entitled ‘Privately managed prison.’ The amendment, which resulted in the addition of sections 128F-128BB, regulates the establishment of one prison that will be built, managed and operated by a private corporation, which will enter into an agreement for this purpose with the Israel Prison Service and act as a concessionaire in accordance with a special permit that it will receive. The amendment provides, inter alia, the procedure for granting and cancelling the permit, the qualifications that should be satisfied by the corporation and its employees, the scope of the powers of the corporation’s employees and the supervisory measures that the state is required to undertake with regard to the activity of the corporation and its employees. In the Third Schedule to the Prisons Ordinance, it is provided that the privately managed prison will be constructed in the prison compound south of the city of Beer-Sheba, and its maximum capacity will be eight hundred inmates. The Schedule also lays down the conditions that should be satisfied with regard to inmates that will be imprisoned in the privately managed prison.

The petition before us was filed on 16 March 2005. The first petitioner is an academic institution, which is acting as a public petitioner in the petition before us. The second petitioner is a retired senior officer in the Israel Prison Service. The third petitioner, who was subsequently joined as a party to the petition at his request, was, on the date that he was joined as a petitioner, an inmate of a prison managed by the Israel Prison Service. On 27 October 2005 an initial hearing of the petition took place before a bench of three justices. On 15 November 2005, the third respondent (hereafter: ‘the concessionaire’) was chosen as the winning group in the tender for the construction and operation of the private prison, and the concession agreement was signed with it on 2 January 2006. On 18 June 2006 a further hearing of the petition was held before a bench of seven justices, which was presided over by President A. Barak. Following this, an order nisi was made. On 31 August 2006, following a further hearing that took place before a bench of nine justices, and after the court was notified by the Knesset’s legal adviser that draft laws had been tabled to repeal amendment 28, it was decided to postpone the hearing of the petition in order to allow the legislative proceedings that had apparently been restarted in the Knesset to be exhausted. Since these proceedings did not progress and the legal position set out in the statute under discussion was not changed, on 8 July 2007 we heard the actual petition. While the hearing of the petition was taking place, the proceedings for setting up the privately managed prison also progressed, and the third respondent was given the permit required under the law. The construction of the prison and its preparation for the initial partial admission stage were supposed to be completed by June 2009, but on 18 March 2009 we made an interim order that prevented the prison being put into operation. It should be noted that the delay that has occurred in giving this judgment derived from the complexity of the issues under consideration, which raised constitutional questions of significant importance that have not yet been decided in our case law, but mainly from the court’s desire to allow the Knesset to exhaust the legislative proceedings mentioned above and the public debate that the Knesset wished to hold on the privatization phenomenon during the 2007-2008 winter session, as stated in the Knesset legal adviser’s notice of 28 June 2007, before we considered the complex question concerning the setting aside of primary legislation of the Knesset.

2.    The petition is directed at the constitutionality of amendment 28 of the Prisons Ordinance, and the petitioners’ argument is that this amendment should be regarded as a choice by the state ‘to carry out a complete privatization of prisons in Israel.’ As will be explained below, the petition has two main arguments.

In the first argument the petitioners claim that a complete privatization of the prisons constitutes an unconstitutional violation of the constitutional rights to personal liberty and human dignity. In this context, the petitioners claim that several factors combine in this respect to cause an unconstitutional violation of constitutional basic rights. The main cause of this lies in the combination of the following: the nature of the powers that are being privatized, which include the actual power of imprisonment and the powers relating to the human dignity of the inmate and his personal liberty (such as holding a prisoner in administrative isolation, carrying out an external examination of a inmate’s naked body and using reasonable force to carry out a search on an inmate); the low standards that have been set, according to the petitioners, for staffing the positions in the privatized prison in comparison to the standards in the Israel Prison Service; and the inadequate supervision, according to the petitioners, of the actions of the private enterprise that will operate the prison. The petitioners claim that this combination is likely to lead to a violation of the inmates’ rights to liberty and human dignity in the privatized prison. According to the petitioners, this expected violation of constitutional basic rights does not satisfy the limitations clause tests laid down in s. 8 of the Basic Law: Human Dignity and Liberty.

It is argued that a violation of the basic principle that the power to enforce criminal judgments is exercised exclusively by the state, in order to achieve an economic purpose, is not a violation that is made for a proper purpose. The petitioners argue that it is also not a proportionate violation. In this respect, the petitioners claim that from the viewpoint of whether the chosen means will lead to the desired purpose, they have expert opinions that indicate that experience around the world does not show a clear connection between the privatization of prisons and an economic saving; that there are other less harmful measures that are capable of realizing the economic purpose underlying amendment 28, including the building of additional public prisons or a partial privatization that only involves powers that do not contain a predominant element of the exercise of sovereign power; and that the damage that will result from a complete privatization of prisons is disproportionate to the benefit that will arise from such a privatization (especially, according to the petitioners, in comparison to the possibility of a partial privatization of prisons).

3.    In the other argument, the petitioners claim that amendment 28 constitutes a violation of the constitutional rule laid down in s. 1 of the Basic Law: the Government, according to which ‘The government is the executive branch of the state.’ The reason for this is that the power of the state to operate prisons constitutes, according to the petitioners, a part of its authority to exercise executive power in order to enforce the law and maintain the peace; and as such the power lies at the heart of the basic principle that ‘The government is the executive branch of the state.’ According to the petitioners, since the Basic Law: the Government is a Basic Law, its normative status is a super-legislative one, and therefore any ordinary law that violates it should satisfy two requirements, one formal and the other substantive.

First, in the formal sphere, the petitioners argue that the violating law should be passed by a majority of at least 61 members of the Knesset in each of the three readings, according to the entrenchment provision set out in s. 44(a) of the Basic Law: the Government. Since amendment 28 was not passed with this majority, the petitioners claim that this alone should lead to its being set aside. Second, in the substantive sphere, the petitioners claim that the violating law should satisfy the tests of the limitations clause. The petitioners argue that these tests should also be applied, by way of judicial interpretation, to laws that violate the Basic Laws that concern the organs of the state, such as the Basic Law: the Government, even though these Basic Laws do not contain an express limitations clause like the ones provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.

4.    It should also be mentioned that we also heard the arguments of the third petitioner, Mr Yadin Machness, who at that time was serving a custodial sentence at Maasiyahu Prison. The third petitioner’s arguments focused on the practical aspects relating to the services provided to inmates in the prisons of the Israel Prison Service, in fields such as health, food and education. According to him, there is a concern that the standard of these services will decrease in the privately managed prison as a result of the economic considerations that will motivate the concessionaire operating the prison. The third petitioner also raised in his arguments a concern that use will be made of the various powers given to the private concessionaire in such a way that will allow the concessionaire to worsen the conditions of the inmates in the privately managed prison and punish them, without it first being necessary to charge the inmates in disciplinary proceedings, for which the Israel Prison Service remains responsible, even under amendment 28.

5.    All of the respondents oppose the granting of the petition. Replies to the petition were filed by respondents 1-2 (hereafter: ‘the state’), the concessionaire and the Knesset. In its reply to the petition, the state says that the construction of a privately managed prison is one of the solutions planned by it for contending with the serious shortage of prisons in Israel, and this is the main purpose underlying the enactment of amendment 28. The state also claims in the affidavit in reply that in addition to an improvement of the inmates’ prison conditions, the construction of the prison that is the subject of the petition is very much in the public interest, since it will lead to an economic saving of an estimated amount of approximately 20-25 per cent in comparison to a prison of similar standards operated by the Israel Prison Service, and on the basis of experience around the world it can be estimated that the construction of a private prison may also lead to greater efficiency in state-run prisons.

According to the state, the privatization model adopted in amendment 28 of the Prisons Ordinance is a unique and experimental model, which constitutes a ‘pilot’ test that is expressly limited to one prison and includes mechanisms to protect the rights of the inmates and effective supervision and intervention mechanisms that are available to the state and will allow it, inter alia, to reverse the process at any stage and take back control of the prison because of a breach of the terms of the permit given to the concessionaire. The state emphasizes in its pleadings that the existence of a real concern of a serious violation of inmates’ rights is one of the grounds provided in amendment 28 for the state to take away the power to manage the prison from the concessionaire. In this regard, the state further argues that amendment 28 provides measures for supervising the manner in which the concessionaire exercises the powers granted to it: these include the activity of the designated supervision unit of the Israel Prison Service inside the prison (even though the location of the supervision unit was not stipulated in amendment 28 itself, but only in the concession agreement and the permit); the supervisory powers given to the state with regard to the appointment of officers in the privately managed prison; and the extensive reporting duties imposed on the concessionaire with regard to various incidents, both under amendment 28 and under the concession agreement. According to this argument, the supervisory measures will guarantee the prison inmates’ rights. The state also points out that amendment 28 also provides that the permit for operating the prison and the concession agreement may be revoked by the state, if the permit’s conditions are breached.

The state also goes on to say that, under s. 15(d)(2) of the Basic Law:  The Judiciary and according to the case law of this court, from the moment that the concessionaire receives sovereign powers, it becomes directly subject to both administrative law and the jurisdiction of the High Court of Justice, without even resorting to the doctrine of the dual-nature corporation. In addition to the judicial scrutiny of the High Court of Justice to which the concessionaire is subject, the state says that an inmate in the privately managed prison, like every inmate in the Israel Prison Service, has the right to file a prisoner’s petition to the District Court under the provisions of the Prisons Ordinance. This possibility of judicial scrutiny of the prison conditions constitutes, according to the state, an independent and very powerful means of supervision and control that is available to every inmate at all times. Additional control mechanisms with regard to the activity of a privately managed prison to which the state refers are the scrutiny of the State Comptroller, since the concessionaire is an audited body within the meaning of this term in s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958, and the scrutiny of an advisory committee chaired by a retired District Court justice. According to amendment 28, this committee will advise the Commissioner of Prisons on the subject of upholding the rights of inmates in the privately managed prison, and also on the subject of their rehabilitation, welfare and health, and it shall submit its recommendations to the Minister of Public Security, the Commissioner of Prisons and the Internal Affairs and Environment Committee of the Knesset once a year. In view of the aforesaid, the state argues that there is no basis for the claim that it has divested itself of its powers, and it adds that in the Israeli model chosen for the privatization of the prison, a significant part of the sovereign powers is retained by the state.

The state goes on to argue that the rights of the inmates will be guaranteed not merely by the mechanisms provided in the law itself but also in the administrative sphere, by the permit for constructing and operating the prison, as well as in the contractual sphere, by the concession agreement with the concessionaire. In this regard, the state says that various powers that are potentially particularly harmful and are not essential for the ongoing management of the prison (which are given to governors of prisons managed by the state) were not given by amendment 28 to the governor acting on behalf of the concessionaire. The state also says that, even if this court holds, contrary to its position, that amendment 28 violates constitutional human rights to a greater extent than the violation of prison inmates’ rights under the general law, this violation satisfies the tests of the limitations clause.

6.    Regarding the provisions of s. 1 of the Basic Law: the Government, which provides that ‘the Government is the executive branch of the state,’ the state claims that this provision is intended to define in a ‘ceremonial’ manner the nature and character of the government in relation to the other organs of state. According to the state, the purpose of this provision does not concern any specific executive power at all, merely the general position of the government within the democratic system. The state goes on to argue that in any case the government carries out its functions as the executive branch in a variety of ways, including by relying on private entities. Therefore the government does not stop acting as ‘the executive branch of the state’ when it carries out its functions through private entities or delegates certain powers to them. The state goes on to argue that even if s. 1 of the Basic Law: the Government can be used to set aside the delegation of powers made pursuant to a statute, there is no basis for using it to disqualifying amendment 28, since the privately managed prison will be run with the full involvement of the state, and therefore the amendment will not undermine the principle that the government is the executive branch of the state. The state further argues that even if amendment 28 can be regarded as a violation of the principle provided in the Basic Law: the Government, it is a negligible and very remote violation that lies at the margin of the principle and not at its centre.

The state also says that the Israeli model chosen for entrusting a prison to private management is based on the English model that is characterized by a regulatory approach, according to which the supervision of the activity of the private concessionaire is carried out by state inspectors who are stationed inside the supervised prison. Notwithstanding, according to the state, the Israeli model of delegating powers to manage one prison to a private concessionaire is more moderate with regard to the powers given to the concessionaire and more comprehensive, compared to similar legislative models in other countries, with regard to the powers to supervise the concessionaire, and it should therefore be regarded as an ‘improved English model.’

In view of the aforesaid, the state claims that since the petition challenges a privatization determined by law, which does not violate constitutional rights, the intervention of the court should be limited to rare and extreme cases, in which the privatization shakes the foundations of democracy and the fundamental principles of the system of government; according to the state, circumstances of this kind do not exist in the case before us.

7.    The concessionaire that was chosen in the tender to build and operate the privately managed prison also argues that the petition should be denied. It argues that not only will the operation of a privately managed prison not harm the liberty, dignity and rights of the inmates, but it will result in an improvement of their conditions, because of the high standards laid down by the state in the minimum requirements of the tender for the construction and operation of the prison (standards that the concessionaire claims it undertook to improve upon) and because of the extensive supervisory powers retained by the state. The concessionaire emphasizes in its reply to the petition the importance that it attaches to the social goals that the prison is intended to realize, including the rehabilitation and education of the inmates. The concessionaire further argues that there is no basis to the petitioners’ claims regarding the concern of a violation of inmates’ rights as a result of the legislation of amendment 28. In this context, the concessionaire argues that the petitioners’ claim that the running of a prison with the assistance of a private enterprise necessarily leads to a greater danger of a violation of inmates’ basic rights than a prison entirely managed by the state needs to be proved factually on the basis of research and empirical evidence; according to the concessionaire, however, the petitioners did not even attempt to discharge this heavy burden. The concessionaire goes on to argue that even if amendment 28 violates a constitutional right protected in the Basic Law: Human Dignity and Liberty, that violation satisfies the conditions of the limitations clause. With regard to the third petitioner’s arguments regarding the concern that the concessionaire’s economic motives will result in a deterioration in the inmates’ prison conditions at the privately managed prison, the concessionaire argues that these claims do not address the constitutionality of amendment 28, merely the manner in which it is implemented, and in any case they are without merit, in view of the high standard for operating the prison set out in the conditions of the tender, the concession agreement and the concessionaire’s bid.

With regard to the petitioners’ claims that are founded on the provisions of s. 1 of the Basic Law: the Government, the concessionaire argues that this provision is a declarative constitutional provision that does not prevent a delegation of powers by the government, or the state availing itself of the assistance of private enterprises to carry out its duties.

8.    An additional argument that is raised both by the state and by the concessionaire is the claim of laches. The state and the concessionaire say that the petition before us was filed approximately a year after the Knesset enacted amendment 28, without any justification for the delay in filing the petition. In this respect, it was argued by the state and the concessionaire that the delay in filing the petition adversely changed their position, since by the date of filing the petition they had already gone to considerable expense and invested significant work and time in the project — the state in preparing the tender and the documents of the tender, and the concessionaire in studying the documents of the tender and preparing a detailed bid for the tender. It was also argued that the cancellation of the project at a late stage would harm the foreign parties who had entered into contracts with the concessionaire and relied on the legislation of the Knesset, and it might even prejudice the attractiveness of the State of Israel to foreign investors and experts, as well as other national projects requiring large investments. We should already point out at this stage that we see no reason to dismiss the petition on the ground of laches. Even if we assume in favour of the state and the concessionaire that the rules of laches also apply to constitutional petitions, and that in the present case there were both an objective delay and a subjective delay on the part of the petitioners, in view of the constitutional importance of the issues raised in the petition — both from the viewpoint of the principles of the system of government in Israel and from the viewpoint of the effect on the human rights of prison inmates — there is no basis for dismissing this petition because of the delay in filing it (with regard to the tests for examining a claim of laches, see, for example: AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [1], at pp. 678-679; AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel [2], at paras. 86-101 of the judgment).

9.    In addition to the replies of the state and the concessionaire, we also heard the position of the Knesset with regard to the petition. According to the Knesset, s. 1 of the Basic Law: the Government, which it will be recalled is the basis for the petitioners’ constitutional argument concerning the state divesting itself of its powers, does not contain any provision with regard to the manner of carrying out the government’s powers; it does not contain any provision that restricts the Knesset’s power to permit the government to act in various ways to discharge its executive function; nor does the section provide criteria for examining the constitutionality of laws. Therefore, the Knesset claims that s. 1 of the Basic Law: the Government is not relevant at all when considering the constitutionality of amendment 28. The Knesset goes on to argue that there is no basis for examining the constitutionality of the amendment in accordance with the provisions of a ‘judicial limitations clause’ that is based on the limitations clauses provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. In this respect the Knesset argues that no clear case law ruling has yet been made that the Knesset’s legislative power is limited by the tests in the limitations clause even when the relevant Basic Law does not have an express limitations clause, and it adds that a substantive restriction of the kind that is found in the limitations clause in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation is unsuited to the examination of legislation that prima facie conflicts with a provision in a Basic Law that concerns the organs of the state. It should be noted that in so far as the concrete question of the privatization of prisons is concerned, the Knesset included in its arguments a comprehensive description of the phenomenon of prison privatization around the world. The Knesset emphasized that this is a ‘hard case’ of privatization and it argued that the state needs to carry out close supervision of the private entity, and that the concessionaire should be made subject to the rules of public law.

Deliberations

10. Amendment 28 of the Prisons Ordinance, whose constitutionality is being challenged by the petitioners in this case, introduced a material change in the sovereign outlook of our system of government; it departs from the ordinary and accepted outlook of privatizing government activities in that it gives a private concessionaire various powers that, when exercised, necessarily involve a serious violation of human rights. In this petition we are required to decide whether granting these powers to a private concessionaire, i.e., privatizing these powers, is constitutional (with regard to the various definitions of the concept of privatization, see Y. Katz, Privatization in Israel and Abroad (1997), at pp. 23-30). On this question, our approach will be as follows: first, we shall address the nature of the arrangement provided in amendment 28. Thereafter, we shall consider in brief the scope of judicial review of Knesset legislation. Our main deliberations on the question of the constitutionality of amendment 28 will focus on the Basic Law: Human Dignity and Liberty. At the end of our deliberations we shall address the arguments of the parties regarding the constitutional scrutiny of the amendment from the viewpoint of the Basic Law: the Government. It should immediately be pointed out that in view of the conclusion we have reached, that the amendment under discussion does not satisfy the constitutionality tests in the Basic Law: Human Dignity and Liberty, various questions that arise with regard to the constitutionality of the amendment from the viewpoint of the Basic Law: the Government do not require a decision.

The nature of the arrangement provided in amendment 28

11. The following are the main relevant provisions that were introduced by the aforesaid amendment 28.

Section 128G(a) of the Prisons Ordinance provides that ‘The service [i.e., the Israel Prison Service] may, for the purpose of carrying out its functions as stated in section 76, rely on a corporation’ that satisfies certain minimum requirements stipulated in the section, ‘and to this end it may enter into an agreement with it to construct, manage and operate one prison’ (it should be noted that the functions of the Israel Prison Service are defined in general terms in s. 76(a) of the Prisons Ordinance, which provides that the Israel Prison Service ‘shall engage in the management of the prisons, the security of inmates and everything entailed therein’). The corporation to which s. 128G(a) of the Prisons Ordinance refers is therefore the concessionaire, which is supposed, according to the provisions of amendment 28, to construct, manage and operate the ‘privately managed prison.’ The various powers given to the concessionaire under amendment 28 are naturally derived from the scope of the responsibility imposed on it. Section 128L of the Prisons Ordinance defines the spheres of responsibility imposed on the private concessionaire in the following terms:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The powers of the concessionaire and its employees, whose privatization within the framework of amendment 28 lies at the heart of the petition before us, are those powers that are derived from the spheres of responsibility provided in ss. 128L(a)(1) and 128L(a)(2) of the Prisons Ordinance, namely the responsibility of maintaining order, discipline and public security in the prison and the responsibility of preventing the escape of inmates that are held in custody in the prison. In order that the private concessionaire that manages and operates the prison can discharge its responsibility in these fields, the governor of the private prison on behalf of the concessionaire and the concessionaire’s employees (subject to several important exceptions) were given various powers, which are parallel to the powers given to the governor of an Israel Prison Service prison and the prison employees that are subordinate to him. Exercising these powers — and this petition is directed against granting them to a private concessionaire rather than against their actual existence — naturally entails a serious violation of various human rights, including the right to life, the right to personal liberty and the right to human dignity. Below we shall discuss several of the powers given to the private concessionaire’s employees at their various levels.

12. The powers of the governor of the privately managed prison are defined in s. 128R of the Prisons Ordinance, which states the following:

‘Functions and powers of the governor of a privately managed prison

128R. (a) The governor is responsible for the proper management and operation of a privately managed prison, as stated in section 128L(a), and in this respect all of the provisions under this Ordinance that apply to a prison governor shall apply to him, subject to the provisions of this section.

 

(b) In order to carry out his functions as stated in subsection (a), the governor shall be given the powers given to a governor of a prison under this Ordinance and under every other law, except for the powers according to service orders and the following powers:

 

(1) Making an order to transfer an inmate because of a contagious disease, under the provisions of section 13(b);

 

(2) Extending a period during which an inmate is held in isolation under the provisions of section 19C(a);

 

(3) Confiscating a possession under the provisions of section 44;

 

(4) Jurisdiction regarding prison offences under the provisions of article 8 of chapter 2;

 

(5) The power of an examiner with regard to a letter to a member of Knesset under the provisions of section 47D;

 

(c) In addition to the powers given to the governor under the provisions of subsection (b), he shall also be given the following powers:

 

(1) The power given to a senior prison officer to order the holding of a prisoner in isolation, under the provisions of section 19C(a);

 

(2) The power to order the conducting of an external examination of the naked body of a prison inmate, when he is admitted into custody, as stated in section 95D;

 

(3) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a prison inmate, under the provisions of section 95E(b);

 

(4) The power given to an Israel Prison Service officer to approve the use of reasonable force in order to conduct a search on a prison inmate, under the provisions of section 95F(b);

 

(5) The power given to an Israel Prison Service officer to order the taking of a urine sample from a prison inmate, an external examination of his naked body or the making of an external search, under the provisions of sections 95H(a) and 95I(c);

 

(6) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a visitor under the provisions of section 95J(b);

 

(7) The powers given to a prison security guard under the provisions of section 128AA.’

A study of the provisions of the aforementioned s. 128R shows that although the governor of the privately managed prison was not given important powers that are given to the governor of an Israel Prison Service prison (including the power to extend the period for holding an inmate in administrative isolation for more than 48 hours and jurisdiction regarding prison offences), the law still gives him powers that, when exercised, involve a serious violation of the rights to personal liberty and human dignity. These powers include, inter alia, the power to order an inmate to be held in administrative isolation for a maximum period of 48 hours; the power to order the conducting of an external examination of the naked body of an inmate; the power to order the taking of a urine sample from an inmate; the power to approve the use of reasonable force in order to carry out a search on the body of an inmate; and the power to order an inmate not to be allowed to meet with a particular lawyer in accordance with the restrictions provided in s. 45A of the Prisons Ordinance.

It should be further pointed out that in addition to all these there is a series of invasive powers that are given to the governor of the prison on behalf of the private concessionaire, which are embodied in the concession agreement rather than in amendment 28 itself.

13. Additional invasive powers are also given to the concessionaire’s employees that are subordinate to the governor of the privately managed prison. Thus, for example, s. 128Y provides which powers are given to a ‘senior employee of the concessionaire,’ which is defined in s. 128F of the Prisons Ordinance as a ‘employee of the concessionaire who carried out command and management functions’:

‘Powers of a senior employee of the concession­aire

128Y. In order to carry out his functions, a senior employee of the concessionaire shall have the following powers:

(1) The powers given to a prison security guard under the provisions of section 128AA;

 

(2) The powers set out in section 128R(c)(1) to (6), in whole or in part, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(3) The powers that are given to an examiner under the provisions of sections 47A to 47C, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(4) The power given to the governor to deny privileges, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization.’

An additional position that was created within the framework of amendment 28 is the position of ‘prison security guard.’ This position in the privately managed prison is de facto equivalent to the position of a prison officer in the Israel Prison Service. The functions of a ‘prison security guard’ are set out in s. 128Z of the Prisons Ordinance as follows:

‘Functions of a prison security guard

128Z. The functions of a prison security guard are:

(1) To maintain public safety and security in the privately managed prison;

 

(2) To prevent the escape of the inmates who are held in custody in the privately managed prison;

 

(3) To maintain order, discipline and routine in the privately managed prison;

 

(4) To discover or prevent offences that are committed within the compound of the privately managed prison or the surrounding area, when accompanying an inmate out of the privately managed prison or when chasing an escaped inmate, all of which with regard to a privately managed prison or inmate;

 

(5) To carry out any additional function that the agreement provides shall be carried out by a prison security guard.’

The powers given to a ‘prison security guard’ in order to discharge his aforesaid functions (powers that are all also given to the governor of the privately managed prison and to a ‘senior employee of the concessionaire’) are set out in s. 128AA of the Prisons Ordinance as follows:

‘Powers of a prison security guard

128AA. (a) (1) When carrying out his job and for that purpose only, a prison security guard has the powers given to a prison officer under the provisions of this Ordinance, including powers to carry out the instructions of the governor or of a senior employee of the concessionaire, as stated in section 125R(c)(1), (3), (5) and (6), subject to the following changes:

 

(a) The power under the provisions of section 95 with regard to a weapon that is a firearm, according to the meaning thereof in the Firearms Law, 5709-1949, is given to a prison security guard in the following circumstances only:

 

(1) When he is carrying out perimeter security functions on the walls of the privately managed prison or in the area surrounding the prison;

 

(2) When he is accompanying an inmate outside the privately managed prison;

 

(3) In circumstances where there has been a serious violation of order and discipline in the privately managed prison, as stated in section 128AJ(a)(1), in accordance with a permit from the commissioner and according to the conditions set out in the permit;

 

(b) He shall have the power to make an external examination of the naked body of an inmate when he is admitted into custody, under the provisions of section 95D, only in accordance with an order from the governor or from a senior employee of the concessionaire under the provisions of section 128R(c)(2);

 

(2) In this subsection, ‘senior employee of the concessionaire’ — a senior employee of the concessionaire who has been authorized for this purpose under the provisions of section 128Y(2).

 

(b) Notwithstanding the provisions of subsection (a)(1), a prison security guard shall not have the following powers:

 

(1) The powers given under the provisions of this Ordinance to a prison officer who belongs to the Anti-Drugs Unit, as defined in section 95A;

 

(2) The power to order an inmate to be held in isolation under the provisions of section 19C;

 

(3) Jurisdiction regarding prison offences, under article 5 of chapter 2, and any other power that is given to a prison officer under the aforesaid chapter.

 

(c) A prison security guard shall have the powers as stated in this section within the compound of the privately managed prison, or in the surrounding area, and when accompanying an inmate outside the prison or when chasing an escaped inmate; nothing in the provisions of this subsection shall derogate from the provisions of subsection (a)(1)(a).’

The aforesaid s. 128AA therefore gives a prison security guard, who it will be remembered is a employee of the concessionaire who operates the privately managed prison, powers that are given to a prison officer of the Israel Prison Service, subject to certain restrictions. These powers include, inter alia, the power to use a weapon in order to prevent the escape of an inmate from the prison, the power given to a policeman to arrest and detain a person without a warrant under ss. 23 and 67 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (a power that is given to a prison employee under s. 95B of the Prisons Ordinance), and the powers provided in ss. 95D and 95E of the Prisons Ordinance to carry out a search on the person of an inmate when he is admitted into custody and during his stay in the prison. Exercising these powers also leads, of course, to a serious violation of the inmates’ human rights. It should also be noted that a employee of the concessionaire who is not a prison security guard is also entitled in certain circumstances to use reasonable force and to take steps to restrain an inmate, in accordance with s. 128AB of the Prisons Ordinance, which provides the following:

‘Powers of a employee of the concessionaire to use force

128AB. A employee of the concessionaire that is not a prison security guard, who has undergone training as provided in the agreement, may use reasonable force and take measures to restrain an inmate, until a prison security guard or a prison officer comes, if one of the following is satisfied:

 

(1) The inmate commits in his presence a violent offence or causes real damage in his presence to a person or property;

 

(2) There is a real concern of harm to the health or physical integrity of a person;

 

(3) There is a reasonable concern that the inmate is escaping or is trying to escape from the privately managed prison.’

The petition before us does not address the actual existence of the aforesaid harmful powers, nor does it deny the need for them in order to operate and manage a prison properly. As stated above, the petitioners’ claims address the constitutionality of giving the aforesaid functions and powers to a private concessionaire and its employees.

The scope of judicial scrutiny of Knesset legislation

14. The premise for examining the constitutionality of amendment 28 is that it is a law passed by the Knesset that reflects the will of the representatives of the people, and as such the court is required to respect it; the court will therefore not determine lightly that a certain statute is unconstitutional (see HCJ 3434/96 Hoffnung v. Knesset Speaker [3], at p. 67; HCJ 4769/95 Menahem v. Minister of Transport [4], at pp. 263-264). Moreover, it should be recalled that a law that is enacted by the Knesset enjoys the presumption of constitutionality that imposes on someone claiming unconstitutionality the burden of showing, at least prima facie, that the statute is unconstitutional, before the burden passes to the state and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the court to adopt the assumption that the statute was not intended to undermine constitutional principles (see Hoffnung v. Knesset Speaker [3], at p. 68; HCJ 6055/95 Tzemah v. Minister of Defence [5], at pp. 267-269 {663-667}). At the same time, the court should carry out the role given to it in our constitutional system and examine the constitutionality of the legislation enacted by the legislative branch. This examination should be made by striking a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the protection of human rights and the basic values underlying the system of government in Israel, on the other. This also means that the constitutional scrutiny should be carried out with caution and restraint, without reformulating the policy chosen by the legislature (see CrimA 6659/06 Iyyad v. State of Israel [6], at para. 29 of the judgment). This rule of caution and restraint when intervening in the policy chosen by the legislature is particularly applicable with regard to court intervention in matters reflecting economic policy. President A. Barak said in this respect:

‘The court does not seek to replace the thinking of the legislature with its own thinking. The court does not put itself in the legislature’s place. It does not ask itself what measures it would choose, were it a member of the legislature. The court exercises judicial scrutiny. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective or justified. The question is whether it is constitutional. A “socialist” legislature and a “capitalist” legislature may enact different and conflicting laws, which will all satisfy the requirements of the limitations clause. Indeed, the Basic Laws are not a plan for a specific political course of action. Nationalization and privatization can both exist within their framework. A market economy or a centrally planned economy can both satisfy judicial scrutiny, provided that the economic activity that violates human rights satisfies the requirements of the limitations clause. Therefore, where there is a range of measures, the court should recognize a margin of appreciation and discretion that is given to the legislature… Determining social policy is the province of the legislature, and its realization is the province of the government, which both have a margin of legislative appreciation’ (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386; see also Menahem v. Minister of Transport [4], at pp. 263-264. For criticism regarding the limited scope of judicial intervention in economic policy, see B. Medina, ‘“Economic Constitution,” Privatization and Public Funding: A Framework of Judicial Review of Economic Policy,’ Itzchak Zamir Book on Law, Government and Society (2005) 583, at pp. 648-652).

Moreover, it is important to clarify that when speaking of legislation that results in a serious violation of protected human rights, the fact that the motive underlying the legislation is an economic one does not decide the question of the scope of constitutional scrutiny of that legislation. In such circumstances, the predominant element in the constitutional scrutiny will be the nature and degree of the violation of human rights, as well as the existence of possible justifications for that violation. The deciding factor will therefore not be the economic aspect of the legislation causing the violation, but the question whether the legislation leads to a serious and grave violation of constitutional human rights and does not satisfy the tests of the limitations clause.

15. The constitutional issue lying at the heart of the petition before us is whether and to what extent the state — and especially the government, which is the executive branch of the state — may transfer to private enterprises the responsibility for carrying out certain tasks that for years have been its exclusive concern, according to the basic constitutional principles of the democratic system in Israel, when those tasks involve a significant and fundamental violation of human rights. The question that we are called upon to decide is, therefore, whether it is possible to determine that the privatization of sovereign powers in this case is unconstitutional, even though it is done pursuant to primary legislation of the Knesset.

An examination of the constitutionality of amendment 28 in accordance with the Basic Law: Human Dignity and Liberty

16. When we examine the petitioners’ arguments that are founded on the provisions of the Basic Law: Human Dignity and Liberty, we should first decide the question whether granting the various powers involved in the management and operation of a prison to a private concessionaire, as was done in amendment 28, violates a constitutional right that is protected in the Basic Law: Human Dignity and Liberty. If we find that such a right has been violated, we should examine whether the violation is lawful, i.e., whether the violation satisfies the tests of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. If we ultimately arrive at the conclusion that amendment 28 violates a constitutional right that is protected by the Basic Law: Human Dignity and Liberty, and that this violation does not satisfy the tests of the limitations clause, we shall need to determine what is the appropriate constitutional remedy for the unlawful violation (regarding the three stages of constitutional scrutiny, see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 428; HCJ 4128/02 Israel Union for Environmental Defense v. Prime Minister of Israel [9], at p. 517).

17. The first question that we need to decide, therefore, is whether the provisions of amendment 28 involve a significant violation of a constitutional right that is protected by the Basic Law: Human Dignity and Liberty. Our deliberations as to whether amendment 28 violates the human rights of the inmates of the privately managed prison are based on the premise that imprisoning a person and holding him in custody in itself violates his right to liberty and freedom of movement. This is the case even when the imprisonment is lawful. In addition to this premise, there is another premise that has become a rule in our legal system, that the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law (see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 11 of the judgment; PPA 4463/94 Golan v. Prisons Service [11], at pp. 152-156 {501-504}). In this respect, the remarks of Justice E. Mazza are apt:

‘It is established case law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law’ (Golan v. Prisons Service [11], at pp. 152-153 {501}).

18. On the basis of these premises, we should examine the petitioners’ arguments with regard to the violation of basic constitutional rights that arises from the provisions of amendment 28, which focus de facto on two issues. First, the petitioners argue that there is a real concern that the powers that were provided in amendment 28 will be exercised by the private concessionaire in a manner that violates the human rights of the inmates to a greater degree than the manner in which the corresponding powers are exercised in the prisons managed by the Israel Prison Service. Second, the petitioners argue that the transfer of powers to manage and operate the prison to a private concessionaire ipso facto violates the constitutional rights of the inmates in the privately managed prison to their personal liberty and human dignity.

As we shall clarify below, amendment 28, which allows the construction of a prison that will be managed and operated by a private corporation, leads to a violation of the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise. We therefore do not need to decide the arguments of great weight raised by the petitioners regarding the potential for violating the inmates’ human rights in the privately managed prison to a greater degree than the violation of the inmates’ human rights in the prisons managed by the state. It should be noted that the petitioners’ claims in this regard were mainly based on the provisions set out in amendment 28 with regard to the nature of the powers granted to the concessionaire’s employees, the state’s supervision of the private concessionaire’s actions, the economic inducements that will present themselves to the concessionaire and the state with regard to the manner in which the prison is managed and the minimum conditions determined for the professional qualifications of the concessionaire’s employees. In this context, the petitioners also raised arguments concerning the violation of human rights that has been caused by the operation of privately managed prisons in other countries, and especially in the United States.

19. We have examined the petitioners’ claims that are based on the concern that the human rights of inmates will be violated in the privately managed prison to a greater extent than in state managed prisons. In this respect, we are of the opinion that the concerns raised by the petitioners are not unfounded and that there is indeed a concern that the manner of operating the privately managed prison will lead to a greater violation of inmates’ human rights than in state managed prisons, because of the fact that the private prison is managed by a corporation that is a profit-making enterprise. It would appear that the aforesaid concern troubled both the primary legislature and the granter of the concession, and for this reason broad supervision and inspection powers were provided in amendment 28 to allay this concern. Notwithstanding, we have reached the conclusion that although the concerns raised by the petitioners are not unfounded, they address a future violation of human rights and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. In this regard it should be noted that the petitioners’ claims regarding the ramifications of the privatization of prisons in other countries (and especially the United States) are an insufficient basis for this court to reach an unequivocal and a priori determination that the method of operating a prison by means of private management will necessarily result in a violation of human rights that is significantly greater than the violation of human rights in state managed prisons. The reasons for this are, first, that the legislative arrangements in other countries are different from the legislative arrangement in Israel (especially with regard to the degree of state supervision of the concessionaire and the scope of the concessionaire’s powers), and, second, that the comparative figures are not unambiguous (see: A. Volokh, ‘Developments in the Law — The Law of Prisons: III. A Tale of Two Systems: Cost, Quality and Accountability in Private Prisons,’ 115 Harv. L. Rev. 1838, 1868 (2002); U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 85-88; D.E. Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ 19 Journal of Law & Politics 253 (2003), at pp. 271-276). Our decision will therefore be based on the assumption that, despite the potential violations indicated by the petitioners, there is no empirical proof that the manner of operating private prisons necessarily leads to a greater violation of the inmates’ human rights than that in the state managed prisons. Notwithstanding, we have reached the conclusion that the actual transfer of powers to manage a prison from the state, which acts on behalf of the public, to a private concessionaire that is a profit-making enterprise, causes a serious and grave violation of the inmates’ basic human rights to personal liberty and human dignity — a violation that should, of course, be examined from the viewpoint of the limitations clause. Let us now turn to clarify our reasons for this conclusion.

The violation caused by amendment 28 to the constitutional right to personal liberty

20. Sending someone to prison — whether it is managed privately or by the state — first and foremost violates the constitutional right to personal liberty. This right is set out in s. 5 of the Basic Law: Human Dignity and Liberty, which states the following:

‘Personal liberty

5.  A person’s liberty shall not be denied or restricted by imprisonment, arrest, extradition, or in any other way.’

The right to personal liberty is without doubt one of the most central and important basic rights in any democracy, and it was recognized in our legal system before it was enshrined in the Basic Law. Denying this right is one of the most severe violations possible in a democratic state that upholds the rule of law and protects human rights. A violation of the right to personal liberty is especially serious because it inherently involves a violation of a series of other human rights, whose potential realization is restricted physically, mentally and ethically. The special status of the right to personal liberty and the serious ramifications arising from a violation thereof were discussed by Justice Zamir in Tzemah v. Minister of Defence [5]:

‘By virtue of s. 5 of the Basic Law: Human Dignity and Liberty, personal liberty is a constitutional right. Moreover, personal liberty is a constitutional right of the first order, and from a practical viewpoint it is also a prerequisite for realizing other basic rights. A violation of personal liberty, like a stone hitting water, creates a ripple effect of violations of additional basic rights: not only the freedom of movement, but also the freedom of speech, privacy, property rights and other rights… As stated in s. 1 of the Basic Law: Human Dignity and Liberty, “Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free….”. Only someone who is free can realize his basic rights fully and properly. It is personal liberty, more than any other right, that makes man free. For this reason, denying personal liberty is a particularly serious violation. Indeed, a denial of personal liberty by means of imprisonment is the most serious sanction that a civilized state imposes on offenders’ (see Tzemah v. Minister of Defence [5], at pp. 261-262 {656}; see also Iyyad v. State of Israel [6], at para. 28).

But like all human rights, the right to personal liberty, despite its exalted constitutional status, is not an absolute right.

From the provisions of s. 5 of the Basic Law: Human Dignity and Liberty, it can be seen that imprisoning a person — whether in a state managed prison or in a privately managed prison — violates his constitutional right to personal liberty. In this respect it is important to emphasize that even when a person is convicted of an offence and sentenced to imprisonment, this does not mean that he no longer has the basic constitutional right to personal liberty; however, in consequence of the conviction and the sentence that follows it, the scope of the protection afforded to this right is reduced and it is denied for the period stipulated in the sentence. This denial is justified under the provisions of the limitations clause (see CrimA 4424/98 Silgado v. State of Israel [12], at p. 550).

21. The special constitutional status of the right to personal liberty and the fact that it constitutes a condition for exercising many other human rights mean that the legitimacy of denying that liberty depends to a large extent on the identity of the party that is competent to deny that liberty and on the manner in which that liberty is denied. The basic constitutional principle underlying this approach is that in a democracy that respects human rights, the basic justification for denying the personal liberty of the individual lies in the fact that denying his liberty results in the realization of some essential public interest. Of course, this condition is insufficient in itself for denying the personal liberty of the individual, but it is an essential condition. This essential public interest that may justify, and sometimes even necessitate, the denial of the personal liberty of a particular individual, can be of various kinds. Thus, for example, usually when we are dealing with the denial of personal liberty in criminal proceedings, the public interest is expressed in the various goals of criminal punishment, such as deterrence, retribution or rehabilitation. In addition to considerations of criminal punishment, the public interest in denying the personal liberty of a particular individual may also be based on the danger that he presents to state security (see, for example, the Emergency Powers (Arrests) Law, 5739-1979, and the Internment of Unlawful Combatants Law, 5762-2002).

22. According to our approach, which will be explained below, since the denial of the right to personal liberty is justified only if it is done in order to further or protect an essential public interest, the question whether the party denying the liberty is acting first and foremost in order to further the public interest (whatever it may be) or whether that party is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. The answer to the aforesaid question is of importance to the very legitimacy of the denial of liberty. According to the basic principles of modern political philosophy, the violation of the right to personal liberty resulting from giving a private enterprise the power to deny liberty within the context of the enforcement of criminal law derives ipso facto from the fact that the state is giving that party one of its most basic and invasive powers, and by doing so the exercise of that power loses a significant part of its legitimacy. In order to clarify the nature of the violation of the right to personal liberty that is caused by amendment 28, let us now examine the principles underlying our aforementioned approach and the manner in which these principles apply to amendment 28.

23. According to modern political philosophy, one of the main factors that led to the organization of human beings in society, whereby invasive powers — including the power to send convicted offenders to prison — were given to the authorities of that society and especially the law enforcement authorities, is the aspiration to promote the protection of personal security and public order. This approach lies at the heart of the approach of the founders of modern political philosophy. In his classic work Leviathan, which was published in 1651, Thomas Hobbes discussed the nature of the roles of ‘publique ministers’ that are employed by the ‘Soveraign’:

‘For Execution

Publique Ministers are also all those, that have Authority from the Soveraign, to procure the Execution of Judgements given; to publish the Soveraigns Commands; to suppresse Tumults; to apprehend, and imprison Malefactors; and other acts tending to the conservation of the Peace. For every act they doe by such Authority, is the act of the Common-wealth; and their service, answerable to that of the Hands, in a Bodie naturall’ (Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil (1651), at chap. XXIII).

An additional expression of the manner in which modern political philosophy regards the role of the ‘political society’ in enforcing the law and punishing offenders can be found in the work of the English philosopher John Locke, Two Treatises of Government, which was published in 1690. In the Second Treatise, Locke presents his position that society rather than each of the individuals within it has jurisdiction regarding offences and the punishment for them:

‘But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together (John Locke, Second Treatise of Government (1690), at para. 87).

This outlook concerning the responsibility of society or the sovereign (and those acting on their behalf) to enforce the criminal law and preserve public order became over the years a cornerstone in the modern political philosophy of democratic states. Although, naturally, many changes and developments have occurred since the seventeenth century in the way in which the nature and functions of the state are regarded, it would appear that the basic political principle that the state, through the various bodies acting in it, is responsible for public security and the enforcement of the criminal law has remained unchanged throughout all those years, and it is a part of the social contract on which the modern democratic state is also based. An expression of the fundamental outlook concerning the nature of the basic functions of the state and the relationship between it and the citizen can be found in the remarks of Justice I. Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 320 {34}:

‘... the relationship between the authority and the citizen is, in practice, a two-way relationship. Therefore, in my opinion, the authority’s duty to act fairly necessitates a corresponding duty to act fairly on the part of the citizen. This requirement is deeply rooted: it springs from the social contract on which the state is based. Under this contract, as it is understood in a democratic state, the authority and the citizen are not opposing forces on different sides of a barricade but stand side by side as partners in the state. In a democracy, as Justice Silberg said, “... the government and the citizen are one and the same” ... The government (in my opinion we should say: the public administration) has a duty to serve the public – to keep peace and order; to provide essential services; to protect the dignity and liberty of every citizen; to do social justice. But the public administration, which has nothing of its own, can only give to the public if it receives from the public. The proper relationship between the administration and the public, which is in fact the essential relationship, is a reciprocal relationship of give and take.’

In principle, the dispute between supporters and opponents of the privatization of the prisons depends largely on the question of who is the authority that is competent to deprive a person of his liberty in order to enforce the criminal law, and whether it is permitted and desirable to depart from the rule that the exercise of power in this regard lies with the state in its capacity as the representative of the public, and entrust this power to a private enterprise, such as an interested capitalist. This debate has been conducted in academic and public circles, but it has not yet been decided in the courts (see: I.P. Robbins, ‘The Impact of the Delegation Doctrine on Prison Privatization,’ 35 UCLA L. Rev. 911 (1988); J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987); A.A. White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ 38 Am. Crim. L. Rev. 111 (2001), at pp. 134-145). This highlights the special role of the state in enforcing the criminal law and in managing public prisons for the aforesaid purpose. The remarks of the American scholar, Prof. J.J. Dilulio, Jr., are pertinent in this regard:

‘At a minimum, it can be said that, both in theory and in practice, the formulation and administration of criminal laws by recognized public authorities is one of the liberal state’s most central and historic functions; indeed, in some formulations it is the liberal state’s reason for being… It is not unreasonable to suggest that “employing the force of the Community” via private penal management undermines the moral writ of the community itself’ (J.J. Dilulio, Jr., ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ Private Prisons and the Public Interest (D.C. McDonald ed., 1990), 155, at pp. 175-176).

24. According to the aforesaid constitutional principles and the basic social and political tenets of the system of government in Israel, the state — through the government and the bodies that answer to it — is regarded as the party that has the responsibility for ensuring security, public order and the enforcement of the criminal law. The various security services in Israel — including the Israel Defence Forces, the Israel Police, the Israel Prison Service and the General Security Service — take their orders from the government, and as a rule their heads are appointed by it (see ss. 2 and 3 of the Basic Law: the Army, s. 8 of the Police Ordinance [New Version], 5731-1971, s. 78 of the Prisons Ordinance and ss. 3 and 4 of the General Security Service Law, 5762-2002). When these agencies, which all constitute a part of the executive branch of the state, exercise their powers, they are acting on behalf of the state as an organized force that receives its orders from the government. Indeed, the subordination of the various security services to the elected government has always been one of the hallmarks of the State of Israel as a modern democratic state, and it is one of the basic constitutional principles underlying the system of government in Israel (for the constitutional basis for the special status of persons serving in the various security services (including the Israel Prison Service), see ss. 7(8) and 7(9) of the Basic Law: the Knesset, and the special limitations clause provided in s. 9 of the Basic Law: Human Dignity and Liberty).

25. In addition to the subordination of the security forces in the state to the government, one of the hallmarks of the great power that has always been held by the executive branch in Israel is the power given to it, through the police, the state attorney’s office and the prison service, to enforce the provisions of the criminal law in Israel. The issue before us concerns the manner of implementing one of the main elements of the criminal law enforcement mechanisms in Israel — the power to deprive of their liberty those persons who have been convicted under the law and sentenced to imprisonment. This power is one of the most invasive powers that a modern democratic state has over its subjects.

It should be noted that prima facie, in so far as imprisonment as a sentence in a criminal trial is concerned, it might be argued that the violation of the right to personal liberty caused by the imprisonment derives in its entirety from the custodial sentence imposed by the court. Indeed, from a normative viewpoint, the decision of the competent courts of the state to sentence a particular person to imprisonment is the source of the power to violate the constitutional right of that individual to personal liberty. But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison. This violation of the right to personal liberty is inflicted by the party that manages and operates the prison where the inmate is held in custody, and by the employees of that party, whose main purpose is to ensure that the inmate duly serves the term of imprisonment to which he has been sentenced (subject, of course, to the provisions of the law) and complies with the rules of conduct in the prison, which also restrict his personal liberty.

In Israel the power to punish someone who has been convicted under the law and to imprison him in order that he may serve his sentence is, therefore, one of the most significant powers of the state, and under the law the body that is responsible for carrying out this function of the state is the Israel Prison Service. This power, as well as the powers of the other security services, is an expression of a broader principle of the system of government in Israel, according to which the state — through the government and the various security services that are subordinate to it — has exclusive authority to resort to the use of organized force in general, and to enforce the criminal law in particular (for a critical discussion of the question of the monopoly given to the state to use force, see C.J. Rosky, ‘Force, Inc.: The Privatization of Punishment, Policing and Military Force in Liberal States,’ 36 Conn. L. Rev. 879 (2004).

26. The monopoly given to the state — through the executive branch and the bodies acting through it — with respect to the use of organized force is of importance in two spheres. In one sphere, we need to take into account that the democratic legitimacy for the use of force in order to restrict the liberty of individuals and to deny various human rights relies on the fact that organized force exercised by and on behalf of the state is what causes the violation of those rights. Were this force not exercised by the competent organs of the state, in accordance with the powers given to them and in order to further the general public interest rather than a private interest, this use of force would not have democratic legitimacy, and it would constitute de facto an improper and arbitrary use of violence. In the other sphere, the fact that the organized force is exercised by a body that acts through the state and is subject to the laws and norms that apply to anyone who acts through the organs of the state and also to the civil service ethos in the broad sense of this term is capable of significantly reducing the danger that the considerable power given to those bodies will be abused, and that the invasive powers given to them will be exercised arbitrarily or in furtherance of improper purposes. Naturally, both of these spheres are interrelated and affect one another, since the democratic legitimacy given to the bodies that exercise organized force on behalf of the state is what allows them in a substantive sense to exercise the powers given to them vis-à-vis any individual. At the same time, since those bodies act within the framework of the democratic political mechanism and are subject to its rules, their legitimacy is enhanced. Prof. Dilulio discussed the close connection between the identity of the party that uses force against prisoners and the legitimacy of the actual use of force in the following terms:

‘In my judgment, to continue to be legitimate and morally significant, the authority to govern those behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. Regardless of which penological theory is in vogue, the message “Those who abuse liberty shall live without it” is the philosophical brick and mortar of every correctional facility. That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual. The administration of prisons and jails involves the legally sanctioned coercion of some citizens by others. This coercion is exercised in the name of the offended public. The badge of the arresting police officer, the robes of the judge, and the state patch of the corrections officer are symbols of the inherently public nature of crime and punishment’ (Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 173).

27. Now that we have discussed the constitutional principle regarding the monopoly given to the state to use force in general, and to deny the personal liberty of individuals in order to enforce the criminal law in particular, let us now examine the relationship between this general principle and the arrangement provided in amendment 28. The main provision of amendment 28, which will form the focus of the constitutional scrutiny and from which all of the other provisions of the amendment whose constitutionality is under consideration are derived, is s. 128L of the Prisons Ordinance. This provision defines the spheres of responsibility of the private concessionaire, who is supposed to construct, manage and operate the privately managed prison. The wording of s. 128L appears in para. 11 above, but because of its importance in this case we shall cite the wording of the section once again:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The constitutional difficulty presented by amendment 28 concerns the management and operation of the prison by a private concessionaire, and in particular the responsibility imposed on it for the matters set out in the aforesaid ss. 128L(a)(1) and 128L(a)(2), namely the responsibility for ‘maintaining order, discipline and public security’ and the responsibility for ‘preventing the escape of inmates that are held in custody.’ These spheres of responsibility, from which all the other invasive powers given to the governor of the prison on behalf of the concessionaire and the concessionaire’s employees are de facto derived, are the spheres in which, according to the petitioners, the state may not delegate or transfer its responsibility to a private enterprise. Moreover, it is important to point out that the provisions of amendment 28 may also to some degree affect the length of the term of imprisonment, since the conduct of the prison inmate has a not inconsiderable effect on the possibility of his early release from prison under the Parole Law, 5761-2001. In this respect it should be pointed out that under s. 9(7) of the Parole Law, the parole board acting under the law is required to consider, inter alia, the recommendation concerning the prisoner that was given by the governor of the privately managed prison, who, it will be recalled, is appointed by the concessionaire (it should be noted that the aforesaid s. 9(7) also relates to the possibility that one of the supervisors acting in the prison on behalf of the Israel Prison Service will submit a recommendation regarding the prisoner in the privately managed prison).

28. The powers involved in maintaining order, discipline and public security in the prisons and the powers involved in preventing the escape of prisoners from custody are traditionally powers that manifestly belong to the state. The sovereignty of the state and its power to use coercive force against its subjects are typified by the power given to it to imprison persons who have been convicted by the court, to supervise those prisoners strictly, continuously and closely, in a manner that seriously (but justifiably) violates their personal liberty, human dignity and privacy, and to take various steps — including the use of deadly force in a manner that endangers the right to life and physical integrity — in order to prevent the escape of the inmates from the prison. Therefore, a prison, even when it operates within the law, is the institution in which the most serious violations of human rights that a modern democratic state may impose on its subjects may and do occur.

We have already discussed the fact that according to the basic values of society and the system of government in Israel, the legitimacy for exercising powers that involve a serious violation of the constitutional right to personal liberty derives from the fact that these powers are exercised by and on behalf of the state, after the person with regard to whom they are exercised has been tried and convicted by the legal system of the state. Imprisoning a person is the culmination of the criminal proceeding initiated against that person by the state on behalf of the entire public. The power of imprisonment and the other invasive powers that derive from it are therefore some of the state’s most distinctive powers as the embodiment of government, and they reflect the constitutional principle that the state has a monopoly upon exercising organized force in order to advance the general public interest. In this context it should be remembered that when an offender who has been convicted by a competent court and sentenced to imprisonment serves his sentence, this is not merely a technical stage of implementing the criminal law; it is a significant and integral part of the criminal proceeding that the state initiates against the individual, without which the earlier parts of the proceeding lose a significant part of their significance. Indeed, just as the state through the legislature is responsible for regulating criminal legislation, so too it is responsible for enforcing the criminal law and punishing offenders according to the law through the executive branch — a responsibility that is realized, inter alia, by imposing the role of managing and operating prisons on the state (see Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

29. The scope of the right to personal liberty and the power to violate this right lawfully are derived from the basic principles of the constitutional system in Israel that we discussed with regard to the responsibility of the state and those acting on its behalf to maintain public order and enforce the criminal law — a responsibility that justifies giving them extensive powers to violate human rights. Therefore, it is possible to say that when it is the state through its competent organs that exercises the coercive power inherent in denying prison inmates their liberty and when the state is de facto responsible for denying the liberty, the violation of the constitutional right to liberty of those inmates has greater legitimacy. Indeed, when the state, through the Israel Prison Service, denies the personal liberty of an individual – in accordance with the sentence that is imposed on him by a competent court — it thereby discharges its basic responsibility as sovereign for enforcing the criminal law and furthering the general public interest. By contrast, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined, since the sanction is enforced by a party that is motivated first and foremost by economic considerations — considerations that are irrelevant to the realization of the purposes of the sentence, which are public purposes.

30. It would therefore appear that amendment 28 gives rise to a question of paramount constitutional important that lies, as we explained in paragraph 22 above, at the very heart of the right to personal liberty, namely whether it is possible to entrust the power to deny liberty to a party that operates in order to further an interest that is essentially a private one.

 Amendment 28 provides an arrangement that authorizes a private profit-making corporation to violate the constitutional right to personal liberty; by making the prison inmates subservient to a private enterprise that is motivated by economic considerations, amendment 28 creates a violation of the constitutional right to personal liberty, which is an independent violation that is additional to the violation caused by the actual imprisonment under lock and key. This violation goes to the heart of the right to personal liberty, since it involves the actual power to hold a person in prison and the conditions of his imprisonment (including the possibility of denying various benefits inside the prison). The source of the violation of the constitutional right to personal liberty that is caused by amendment 28 is therefore inherent to the identity and nature of the body that has been given the powers to violate liberties that are involved in the management and operation of a prison, in two respects. First, the state, after it has determined through its courts that a custodial sentence should be imposed on a certain person, does not bear complete responsibility for the implementation of this decision, with the violation of human rights that arises from it. This situation undermines the legitimacy of the actual sanction of imprisonment and of the violations of various human rights that derive from it (and especially the constitutional right to personal liberty). Second, in addition to the aforesaid, the inmate of a privately managed prison is exposed to a violation of his rights by a body that is motivated by a set of considerations and interests that is different from the one that motivates the state when it manages and operates the public prisons through the Israel Prison Service. The independent violation of the constitutional right to personal liberty of inmates in a privately managed prison exists even if we assume that from a factual-empirical viewpoint it has not been proved that inmates in that prison will suffer worse physical conditions and invasive measures than those in the public prisons.

Indeed, when we examine the extent of the violation of the right to personal liberty inherent in placing a person under lock and key we should take into account not merely that person’s actual loss of personal liberty for a certain period but also the manner in which he is deprived of liberty. The broad scope of the protected right finds expression in various ways, and this too justifies affording it broad protection. The right to liberty is not violated only by denying it in its entirety. The right can be violated on various levels. The manner in which the constitutional right is violated and the nature and extent of the violation naturally affect the constitutional scrutiny of the violation from the perspective of the limitations clause (see and cf. HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [14], at pp. 681-683, 692-693, 693-694 {545-549, 562-563, 564-565}; Menahem v. Minister of Transport [4], at pp. 260-261).

31. In this respect it should be stated that we see no reason to accept the concessionaire’s argument that all that amendment 28 provides is tantamount to the state availing itself of the assistance of a private enterprise rather than delegating or transferring powers to it. It is well known that a distinction between an authority availing itself of the assistance of a private enterprise in order to carry out its duties and a delegation of powers to a private enterprise has been made in our administrative law, and the main distinction between the two situations concerns the scope of the powers and the discretion given to the party to whom the competent authority delegates its powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at pp. 422-424; HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16]; I. Zamir, Administrative Authority (vol. 2, 1996), at pp. 541-550, 561-562). In the circumstances of the case before us, even if there are certain differences between the scope of the powers given to the employees of the private concessionaire that operates the prison and the scope of powers given to prison officers of the Israel Prison Service, an examination of the provisions of amendment 28 shows that the private concessionaire was given wide-ranging powers with regard to the day-to-day management of the prison, including the enforcement of order and discipline therein.

The powers given to the private concessionaire are not merely technical powers. They are invasive powers that are involved on a regular basis when discretion is exercised by the prison governor acting on behalf of the concessionaire and the employees subordinate to him, who are in control of the managing the lives of the inmates in the prison on a daily basis. Moreover, the management and operation of a prison naturally require dealing with unexpected situations in the course of direct contact with the inmates and making quick decisions on an immediate basis, where the supervision and scrutiny of the making of the decisions and the manner of exercising the discretion can only be carried out retrospectively. Indeed, it would seem that in so far as the management of private prisons is concerned, there is a very significant difficulty in making a clear distinction between the policy decision of the state and the actual manner in which it is implemented by the private concessionaire (see J. Freeman, ‘The Private Role in Public Governance,’ 75 N. Y. U. L. Rev. 543 (2000), at pp. 632-633; Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 176). In these circumstances, it is clear that the arrangements provided in amendment 28 constitute a transfer (or at least a delegation) of powers from the Israel Prison Service to the private concessionaire, which is responsible for the management and operation of the prison, rather than a government authority merely availing itself of the assistance of a private enterprise, as the concessionaire claims.

32. We should further mention that, in their pleadings in reply to the petition, the respondents (the state and the concessionaire) argued that there are various other arrangements that allow private enterprises to exercise different sovereign powers. Examples of such arrangements are the possibility of appointing a private lawyer as a prosecutor in a criminal trial by virtue of an authorization from the attorney-general under s. 12(a)(1)(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (see HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [17]; HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [18]); the possibility provided in s. 5 of the Execution Law, 5727-1967, of appointing a private individual, who has been authorized for this purpose, as an ‘officer’ for the enforcement of civil judgments; and the existence of nursing and psychiatric institutions, which operate for profit, where the members of staff have full control of the various aspects of the lives of the inmates of those institutions. The question of the constitutionality and legality of these arrangements does not arise in the petitions before us, and therefore we are not required to adopt any position with regard to it. But it is hard to deny that these are functions that are not so closely related to the manifestly sovereign functions of the state and that the violation of human rights that results from exercising them is less than that involved in the management and operation of a prison, which is the subject of the petition before us (for a discussion of the question of the constitutional and legal restrictions imposed on the privatization process, see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001); D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007); cf. also C.P. Gillette & P.B. Stephan III, ‘Constitutional Limitations on Privatization,’ 46 Am. J. Company. L. 481 (1998)).

33. In summary, the conclusion that we have reached is that amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself. It can therefore be said that our position is that the scope of the violation of a prison inmate’s constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right of an inmate when the entity responsible for his imprisonment is a government authority that is not motivated by those considerations, even if the term of imprisonment that these two inmates serve is identical and even if the violation of the human rights that actually takes place behind the walls of each of the two prisons where they serve their sentences is identical. This conclusion gives rise to a question, which we shall consider below, as to whether it is possible to determine that this independent violation was made lawfully in accordance with the limitations clause.

Amendment 28 violates the constitutional right to human dignity

34. In addition to the violation of the right to personal liberty, amendment 28 also violates the constitutional right to human dignity that is enshrined in section 2 of the Basic Law: Human dignity and Liberty as follows:

‘Preservation of life, body and dignity

2.  One may not harm the life, body or dignity of a person.’

In order to examine the claim that the provisions of amendment 28 cause a violation of human dignity, we first need to discuss the content of the constitutional right to human dignity and the extent to which it applies in the circumstances of the case before us. In the judgment in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19] it was held that the model adopted by the Supreme Court with regard to the scope of application of the constitutional right to human dignity is an ‘intermediate model’; in other words, the right to human dignity does not only include those clear violations that relate to a person’s humanity, such as physical and emotional injuries, humiliation and defamation, but it does not encompass all human rights. In that case President Barak addressed the content of the constitutional right to human dignity in the following terms:

‘What is human dignity according to the approach of the Supreme Court? This question should be answered by means of constitutional interpretation of the language of the statute against the background of its purpose. This interpretive approach is based on the history of the provision in the Basic Law, its relationship to other provisions in the Basic Laws, the basic values of the legal system and comparative law. It gives central weight to the case law of this court regarding the scope of human dignity. On the basis of all of these, our conclusion is that the right to human dignity constitutes a set of rights that needs to be upheld in order for dignity to exist. The right to human dignity is based on the recognition that man is a free creature, who develops his body and mind as he wishes in the society in which he lives; the essence of human dignity lies in the sanctity of his life and his liberty. Human dignity is based on the autonomy of the individual will, the freedom of choice and the freedom of action of a human being as a free agent. Human dignity relies on the recognition of the physical and spiritual integrity of a human being, his humanity, his worth as a human being, all of which irrespective of the degree of benefit that others derive from him’ (see Movement for Quality Government in Israel v. Knesset [19], at para. 35 of the judgment).

35. Whatever the content of the constitutional right to human dignity may be, no one denies that the right to dignity applies with regard to preventing the denigration of a person and preventing any violation of his human image and his worth as a human being. The right to dignity is a right that every human being is entitled to enjoy as a human being. Admittedly, when a person enters a prison he loses his liberty and freedom of movement, as well as additional rights that are violated as a result of the imprisonment; but an inmate of a prison does not lose his constitutional right to human dignity. A long time before the Basic Law: Human Dignity and Liberty was enacted, Justice Barak discussed how prison inmates and persons under arrest also enjoy the right to human dignity. Justice Barak held in this regard in HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298:

‘Every person in Israel enjoys a basic right to physical integrity and to the protection of his human dignity. These rights are included in the “charter of judicial rights”… that has been recognized by this court. The right to physical integrity and human dignity is also a right of persons under arrest and prison inmates. The walls of the prison are not a barrier between the inmate and human dignity. The regime in the prison naturally requires a violation of many liberties that free people enjoy… but the regime in the prison does not demand that the inmate is denied his right to physical integrity and to protection against a violation of his dignity as a human being. The inmate loses his freedom, but he is not deprived of his human image.’

This finding regarding the right of prison inmates and persons under arrest to human dignity was, of course, given extra force when the Basic Law: Human Dignity and Liberty was enacted and the right to human dignity became a super-legislative constitutional right that every government authority is liable to respect. The social importance that should be attributed to the protection of the human dignity of prison inmates was discussed by Justice E. Mazza in the following terms:

‘We should remember and recall that the human dignity of the prison inmate is the same as the dignity of every human being. Imprisonment violates the prison inmate’s liberty, but it should not violate his human dignity. A prison inmate has a basic right not to have his dignity violated, and every government authority has a duty to respect this right and to prevent it from being violated… Moreover, a violation of the human dignity of a prison inmate does not merely affect the inmate, but also the image of society. Humane treatment of prison inmates is a part of a humane-moral norm that a democratic society is required to uphold. A state that violates the dignity of its prison inmates breaches the obligation that it has to all of its citizens and residents to respect basic human rights’ (Golan v. Prisons Service [11], at p. 256).

36. Indeed, it is hard to deny that imprisoning someone under lock and key and imposing upon him the rules of conduct in the prison violates his human dignity. This violation is caused whether that person is imprisoned in a public prison or in a privately managed prison. Therefore, the question that we need to decide in this case is whether imprisoning a person in a privately managed prison causes a greater violation of his human dignity than imprisoning him in a public prison.

Imprisoning persons in a privately managed prison leads to a situation in which the clearly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose, namely the desire of the private corporation operating the prison to make a financial profit. There is therefore an inherent and natural concern that imprisoning inmates in a privately managed prison that is run with a private economic purpose de facto turns the prisoners into a means whereby the corporation that manages and operates the prison makes a financial profit. It should be noted that the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings, and this violation of the human dignity of the inmates does not depend on the extent of the violation of human rights that actually occurs behind the prison walls (cf. in this respect the question of employing employees in a prison (HCJ 1163/98 Sadot v. Israel Prison Service [21])).

37. The violation of the human dignity of prison inmates described above, which inherently derives from the existence of a privately managed prison, is naturally exacerbated by the invasive character of the powers that amendment 28 allows the private concessionaire and its employees to exercise vis-à-vis the inmates in addition to the violation inherent in the actual imprisonment. These include, as aforesaid, placing an inmate in administrative isolation for a period of up to 48 hours, the use of firearms in order to prevent inmates escaping from the prison, the use of reasonable force in order to conduct a body search on the inmates, a visual examination of the naked bodies of inmates and taking urine samples from inmates. It should also be noted that we do not accept the state’s claim that the injury caused by the exercise of authority over an inmate by a employee of a private company lies in the subjective feelings of the person making the claim and  that this is not essentially a legal argument. The violation of the human dignity of inmates in a privately managed prison is not an injury that derives from the subjective feelings of those inmates, but an objective violation of their constitutional right to human dignity.

38. An additional aspect of the violation of the constitutional right to human dignity that is caused by amendment 28 lies in the social and symbolic significance of imprisonment in a privately managed prison. This aspect of the right to human dignity, which distinguishes it from other human rights, is discussed by the learned Prof. Meir Dan-Cohen, who expresses a view that the existence of a violation of human rights that derives from a certain act or institution depends on the symbolic significance that society attributes to that act or institution, whether the source of that symbolic significance lies in its clear and express content or in some form of social consensus with regard to the aforesaid act or institution, irrespective of the empirical data regarding that act or institution (which may be the source of that symbolic significance), and irrespective of the specific intention of the party carrying out an act of that type in specific circumstances. Prof. Dan-Cohen writes in this respect:

‘Once an action-type has acquired a symbolic significance by virtue of the disrespect it typically displays, its tokens will possess that significance and communicate the same content even if the reason does not apply to them… As long as certain actions are generally considered to express disrespect, one cannot knowingly engage in them without offending against the target’s dignity, no matter what one’s motivations and intentions are’ (see M. Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (2002), at p. 162).

This fundamental approach to the special nature of the right to human dignity expresses an approach that befits the matter before us, when we consider the narrow and essential meaning of the right. Indeed, in many cases a violation of human dignity is accompanied by a violation of additional human rights such as a violation of the right to life and physical integrity and a violation of the right to privacy. Notwithstanding, a violation of human dignity may also be an ‘independent’ violation, when a certain act that is done or a certain institution that is created do not inherently violate other human rights, but they reflect an attitude of disrespect from a social viewpoint towards the individual and his worth as a human being. In so far as amendment 28 is concerned, this approach requires us to examine the significance that Israeli society attached to the imprisonment of a person in a prison that is managed and operated by a private corporation, whose employees are given various invasive powers over the inmates in that prison.

39. As we explained above, amendment 28 admittedly violates the constitutional right to personal liberty, but in addition it independently violates, as described above, the human dignity of the inmates in a privately managed prison. This is because the imprisonment of a person in a privately managed prison is contrary to the basic outlook of Israeli society (an outlook that we discussed in paragraphs 24-25 above) with regard to the responsibility of the state, which operates through the government, for using organized force against persons subject to its authority and with regard to the power of imprisonment being one of the clear sovereign powers that are unique to the state. When the state transfers the power to imprison someone, with the invasive powers that go with it, to a private corporation that operates on a profit-making basis, this action — both in practice and on an ethical and symbolic level — expresses a divestment of a significant part of the state’s responsibility for the fate of the inmates, by exposing them to a violation of their rights by a private profit-making enterprise. This conduct of the state violates the human dignity of the inmates of a privately managed prison, since the public purposes that underlie their imprisonment and give it legitimacy are undermined, and, as described above, their imprisonment becomes a means for a private corporation to make a profit. This symbolic significance derives, therefore, from the very existence of a private corporation that has been given powers to keep human beings behind bars while making a financial profit from their imprisonment (see, in this regard, I.P. Robbins, ‘Privatization of Corrections: Defining the Issues,’ 40 Vand. L. Rev. 813, at pp. 826-827 (1987)).

The relationship between the restrictions on the concessionaire’s powers and the supervisory mechanisms provided in amendment 28, on the one hand, and the violation of the right to personal liberty and human dignity, on the other

40. When we seek to assess the nature and the intensity of the violation of the constitutional rights to personal liberty and human dignity that is caused by amendment 28, we are required to take into account the various restrictions on the private concessionaire’s activity provided in amendment 28 and the various supervisory measures for the concessionaire’s activity that were provided within the framework of the amendment. According to the state and the concessionaire, in view of the aforesaid restrictions and supervisory arrangements, it should not be said that the amendment reflects a shirking by the state of its basic responsibility for enforcing the criminal law.

41. Indeed, the respondents correctly argue that a significant attempt was made by the legislature to limit the violation of human rights caused by amendment 28; it is important to point out that no provisions were included in the amendment that allow a more serious violation of the human rights of the inmates of a privately managed prison than the violation of human rights of the inmates in state managed prisons. Moreover, it should be noted that certain invasive powers that are given to the officers of the Israel Prison Service — including the power to disciplinary adjudicate inmates and the power to order an extension of the period during which an inmate is held in administrative isolation beyond 48 hours — are not given to the employees of the private concessionaire. Moreover, section 128K of the Prisons Ordinance, which was enacted within the framework of amendment 28, regulates the manner in which the provisions of the law regarding a state managed prison will apply to a privately managed prison, and in this regard s. 128K(c)(1) of the Ordinance provides that an inmate held in a privately managed prison shall have all the rights, benefits and services that are given to an inmate in a prison that is not privately managed. Moreover, s. 128I of the Prisons Ordinance imposes on ‘the concessionaire, individuals with significant influence therein, the governor and the concessionaire’s employees’ the provisions of the Penal Law, 5737-1977, that apply to civil servants (cf. CrimFH 10987/07 State of Israel v. Cohen [22]). This provision was also intended to result in making the legal norms that apply to the employees of the private concessionaire the same as those that apply to the officers of the Israel Prison Service. In this respect it is not superfluous to point out that it would appear that the concessionaire operating the privately managed prison is subject to the judicial scrutiny of the High Court of Justice and the rules of administrative law, as it is a body that fulfils a public function under s. 15(d)(2) of the Basic Law: The Judiciary. In view of this, and since the powers of the employees of the private concessionaire are subject to restrictions parallel to those imposed on the powers of the officers of the Israel Prison Service, we cannot determine that the provisions of amendment 28, in themselves, allow the private concessionaire and its employees to violate the human rights of inmates in the privately managed prison to a greater degree than the violation of the human rights of inmates in a state managed prison.

42. In addition to the provisions described above, which were intended to make the normative position of the inmates in the privately managed prison equal to those of the inmates in the state managed prisons, amendment 28 provides various mechanisms for the state to supervise the activity of the private concessionaire (see sections 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). These supervisory mechanisms, which are apparently more comprehensive than the supervisory mechanisms that exist in other countries where private prisons operate in a similar format, are prima facie capable of reducing the concern that the violation of human rights in the privately managed prison will be greater than that in the prisons of the Israel Prison Service (regarding the supervisory mechanisms for private prisons that exist in the United States, Britain and other countries, see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 276-281; C.M. Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective (2007), at pp. 105-108; R.W. Harding, Private Prisons and Public Accountability (1997), at pp. 51-55). In this context it should also be pointed out that according to the presumption of constitutionality that amendment 28 enjoys, we should assume that the supervisory mechanisms provided in the amendment will operate properly; in any case, the arguments with regard to the manner of exercising them are the kind of arguments that are more suited to being examined in an administrative petition than in a constitutional one.

We have not overlooked the fact that amendment 28 contains a provision that is intended to contend with the concern that the violation of the human rights of inmates in the privately managed prison will be greater because of improper economic considerations. This provision appears in s. 128G(b) of the Prisons Ordinance, which provides the following:

‘Agreement between the Israel Prison Service and the corporation regarding the construction, management and operation of a privately managed prison

128G. ...

(b) The amount of the consideration for the concessionaire that will be determined in the agreement shall not be made conditional upon the number of inmates that will actually be held in a privately managed prison, but it may be determined in accordance with the availability of prison places in the number provided in the schedule or on a smaller scale as the commissioner shall determine with the approval of the comptroller-general at the Ministry of Finance.’

This provision is indeed intended to limit the concern that economic inducements will motivate the concessionaire operating the privately managed prison to act in improper ways to increase the number of inmates in the prison or to extend their terms of imprisonment.

43. The creation of the aforementioned supervisory mechanisms for the activity of the private concessionaire, as well as the various restrictions on the scope of its powers as provided in amendment 28, show that the legislature was also aware of the constitutional difficulty inherent in transferring powers to manage and operate a prison to a private corporation that is a profit-making enterprise. But the supervisory measures described above cannot provide an answer to the difficulty inherent in the very management and operation of a prison by a private concessionaire. As we clarified at length in paragraphs 29-30 and 36-39 above, and for the reasons set out there, in view of the degree of the violation of the constitutional rights caused as a result of the actual transfer of the powers of imprisonment and the invasive powers included therein to a private corporation, public supervision is insufficient to eliminate the violation and the damage that it involves. We shall discuss the relationship between the violation and the possibilities of supervision in greater detail in paragraphs 52-54 below.

Does amendment 28 satisfy the limitation clause tests?

44. Since we have found that granting powers to manage and operate a prison — together with the invasive powers involved therein — to a private corporation and its employees, as was done in amendment 28, violates the constitutional rights to personal liberty and human dignity of the inmates in the privately managed prison, we are called upon to examine whether this is a permitted violation. Indeed, the rights to personal dignity and human dignity, like the other human rights recognized in our constitutional law, are not absolute, and a certain act of legislation will not be unconstitutional solely because it violates a constitutional right. The violation of the constitutional rights to liberty and human dignity in amendment 28 will be lawful it is satisfies the conditions of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty, which provides the following:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or under a law as stated by virtue of an express authorization therein.’

The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (see HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 52 {355}; HCJ 1661/05 Gaza Coast Local Council v. Knesset [24], at p. 546). The limitations clause provides that four cumulative conditions need to be satisfied in order that a violation of a constitutional right that is protected in the Basic Law: Human Dignity and Liberty, will be lawful: the violation of the right should be made in a law (or by virtue of an express authorization in a law); the law should befit the values of the State of Israel; the purpose of the law should be a proper one; and the violation of the constitutional right should not be excessive. If one of these four conditions is not satisfied, this means that the violation of the constitutional right is not lawful, and the provision of the law that violates the constitutional right is unconstitutional. Since we have found that amendment 28 violates the constitutional rights to personal liberty and human dignity, we should examine whether the conditions of the limitations clause are satisfied by it.

45. Regarding the first condition provided in the limitations clause — the demand that the violation of the protected constitutional right should be made by a law — no one disputes that amendment 28 satisfies this condition.

The second condition provided in the limitations clause, according to which the law that violates the constitutional right should befit the values of the State of Israel does not give rise to any real difficulty in our case. This condition refers, according to the purpose clause provided in s. 1A of the Basic Law: Human Dignity and Liberty, to ‘the values of the State of Israel as a Jewish and democratic state’ (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 53 {356}). In their petition, the petitioners raised a claim that amendment 28 is inconsistent with the values of the State of Israel as a democratic state because it violates the principle of the separation of powers. We see no reason to accept this claim in the case before us. Indeed, the values of the State of Israel as a democratic state also include the principle of the separation of powers and it is possible that a particularly serious violation of this principle in a certain law will justify a determination that the law is unconstitutional, since it is inconsistent with the values of the State of Israel as a democratic state. Notwithstanding, the petitioners’ claims in the petition before us did not focus on the question of whether this condition is satisfied, and it is indeed hard to see how this condition may be violated by anything other than unusual and exceptional circumstances; it is therefore possible to assume that amendment 28 satisfies the condition of befitting the values of the State of Israel.

The third condition provided in the limitations clause is that the violation of the constitutional right should be done for a proper purpose. The purpose of the law should be regarded as a proper purpose when it is intended to protect human rights or to realize an important public or social purpose, in order to maintain a basis for coexistence within a social framework that seeks to protect and advance human rights (see Menahem v. Minister of Transport [4], at p. 264). The nature of the violated right and the extent of the violation may also shed light on whether the purpose of the violating law is a ‘proper purpose’ (see Iyyad v. State of Israel [6],at para. 30 of the judgment). According to the state, the purpose of amendment 28 is to bring about a direct and indirect improvement of inmates’ prison conditions at a reduced budgetary cost. This purpose of improving the prison conditions of inmates in Israel — even if it is combined with an economic purpose — is a proper purpose. It should be noted that the petitioners’ claim with regard to the requirement of the proper purpose is that the purpose of economic efficiency does not in itself constitute a proper purpose that justifies a violation of constitutional rights. This claim of the petitioners is too sweeping, since there are situations in which an economic purpose will be considered a proper purpose that justifies a violation of human rights, depending on the type of purpose, its importance to the public interest and the extent of the violation of the constitutional right (see, for example, HCJ 5578/02 Manor v. Minister of Finance [25], at pp. 739-740; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [26], at para. 11 of the judgment). As we shall clarify below, the weight of the economic purpose in amendment 28 is very significant, and this aspect is capable of affecting the manner in which we consider whether amendment 28 satisfies the requirement of proportionality and the constitutional balance that it requires between various principles and values. But in the circumstances of the case before us, the mere existence of an economic purpose that is combined with an attempt to realize the purpose of improving prison conditions, as expressed in amendment 28, cannot prevent the amendment from satisfying the requirement of a proper purpose. It follows that we need to examine whether the means chosen by the legislature to realize the proper purpose of amendment 28 satisfy the requirement of proportionality.

46. The fourth condition provided in the limitations clause, on which we shall focus our main deliberations, demands that the violation caused by the law under discussion to the protected constitutional right shall be ‘to an extent that is not excessive.’ This condition concerns the proportionality of the violation of the constitutional right; in other words, even if the violation of the constitutional right is effected by a law that befits the values of the State of Israel and that is intended for a proper purpose, the law may still be found to be unconstitutional if its violation of the constitutional right is disproportionate. The requirement of proportionality therefore examines the means chosen by the legislature to realize the (proper) purpose of the legislation.

The case law of this court has recognized three subtests that are used to examine the proportionality of the violation of a protected constitutional right by an act of legislation. The first subtest is the rational connection test, which examines whether the legislation that violates the constitutional right is consistent with the purpose that it is intended to realize. The second subtest is the least harmful measure test. This test requires us to examine whether, of all the possible measures for realizing the purpose of the violating law, the measure that harms the protected constitutional right to the smallest possible degree was chosen. The third subtest is the test of proportionality in the narrow sense. This test requires the violation of the protected constitutional right to be reasonably commensurate with the social advantage that arises from the violation (see Menahem v. Minister of Transport [4], at pp. 279-280; Movement for Quality Government in Israel v. Knesset [19], at paras. 57-61 of the opinion of President Barak).

The three aforementioned subtests do not always require one option to be chosen in order to realize the purpose of the legislation. In many cases the legislature may be confronted by several options that differ in the degree to which they violate the constitutional right under discussion and the extent to which they realize the relevant legislative purposes. When there are various possibilities that may satisfy the requirement of proportionality, the legislature has a margin of legislative appreciation that we call the ‘margin of proportionality,’ within which the legislature may choose the possibility that it thinks fit. The limits of the margin of appreciation given to the legislature in a concrete case are determined by the court in accordance with the nature of the interests and the rights that are at issue. The court will intervene in the legislature’s decision only when the measure that was chosen by it departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate (see Menahem v. Minister of Transport [4], at p. 280; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [27], at pp. 812-813; Gaza Coast Local Council v. Knesset [24], at pp. 550-552).

47. With regard to the first subtest of proportionality — whether the legislative measure chosen is consistent with the legislative purpose — the dispute between the parties focuses on the question whether amendment 28 is expected to realize the economic aspect of its purpose. The petitioners claim in this respect that they have in their possession opinions that indicate that global experience does not show a clear connection between the privatization of prisons and an economic saving, and they argue that this conclusion can also be seen in various works of academic research. The state, on the other hand, relies on an opinion that was submitted to the tenders committee for the privately managed prison project, which argues that the bid of the concessionaire that won the tender is expected to bring about a saving for the state, which is estimated at approximately 20%-25% of the cost of operating a prison, with similar standards, that is built and operated by the Israel Prison Service. According to this opinion, the saving over the whole period of the concession is estimated at approximately NIS 290-350 million. This question of achieving the budgetary savings goal, as well as the goal of improving the prison conditions of the inmates, is a question that naturally depends on the manner in which the provisions of amendment 28 will actually be implemented. In the case before us, we are not speaking of a situation in which prima facie there is no rational connection between the provisions of the legislation that violates the protected constitutional right and the purposes that the act of legislation is supposed to realize. In any case, at this stage of the ‘privatization’ planning process, the state cannot prove that better conditions for the inmates will indeed be achieved with the expected budgetary savings, nor are we able to determine that amendment 28 is not prima facie capable of realizing the purposes of an economic saving and improving the prisons conditions of inmates that it was designed to achieve. Therefore, we are prepared to assume for the sake of argument that the rational connection regarding the purpose of amendment 28 does exist.

48. The second test of proportionality is, as we have said, the least harmful measure test, which requires that of all the possible measures for realizing the purpose of the legislation, the measure that violates the protected constitutional right to the smallest extent should be chosen. With regard to this subtest, the petitioners argued that it is possible to achieve the economic purpose underlying amendment 28 with measures that violate human rights to a lesser degree. This can be done, according to the petitioners, by building additional state managed prisons or by means of only a partial privatization of powers that do not contain a predominant element requiring the exercise of sovereign power. The state claims in reply that it has not yet found a sufficiently effective means of furthering the purpose of improving the prison conditions of inmates in Israel at a reduced budgetary cost that involves a lesser violation of human rights (in so far as such a violation actually exists). In this regard the state emphasizes that the arrangement provided in amendment 28 includes many significant safeguards. The state further argues that when the policy concerning the privatization of the prisons was formulated, the ‘French model’ in this field was also examined. According to the ‘French model’ for privatizing prisons (which is also used in a similar form in Germany), there is cooperation between the state and the private enterprise in managing the prison, which is reflected in the fact that various logistical services provided in the prison are outsourced, but the issues of security and enforcement are not entrusted to the private enterprise.

As can be seen from the state’s affidavit in reply, in June 2002 the Minister for Public Security approved the privatization of prisons on an ‘expanded French model,’ which also included the transfer to the private enterprise of certain powers in the fields of security and guarding. However, the state claims that ultimately, after examining the experience that has been obtained around the world in operating prisons, it was decided that the privatization would be done in accordance with the ‘English model’ (according to the state, in accordance with an ‘improved English model’), in which the management of the prison is entrusted to a private enterprise operating under the supervision of the state, which retains for itself a limited number of powers (especially powers to try and sentence inmates). The main reason given in the state’s pleadings for rejecting the ‘French model’ for privatizing prisons is that the division of responsibility and powers between the Israel Prison Service and the private enterprise that operates the prison is expected, on the basis of experience around the world, to cause many problems in the proper management of the prison. The concessionaire states in this regard that there is serious criticism of the ‘French model,’ which in the opinion of many does not give expression to the advantages of privatization and the involvement of the private sector, and that the separation of the security functions from the administrative functions makes it difficult to create a uniform policy and to define goals. The concessionaire further argues that, to the best of its knowledge, at the stage when the state considered implementing the ‘French model,’ a considerable difficulty was discovered in finding international enterprises that would be prepared to enter into an investment and partnership in Israel on the basis of this model. From these arguments it therefore follows that, according to the state and the concessionaire, the model that was ultimately adopted in amendment 28 is the one that best realizes the purposes that giving the powers to manage and operate a prison to a private concessionaire was intended to realize.

49. From the state’s affidavit-in-reply it can therefore be seen that after various options were examined with regard to the manner of implementing the privatization, each with its various administrative and economic significances, the option called by the state ‘the improved English model’ was chosen. This option is the one embodied in amendment 28. Since this option provides that powers to exercise force, which is essentially a sovereign function, will be transferred to the private enterprise’s employees, it results in a more serious violation of the personal liberty and human dignity of the inmates than the ‘French model’ for prison privatization (a model which, as aforesaid, only includes outsourcing of the logistic powers in the prison, rather than the powers relating to security and enforcement). In the circumstances of the case, we have arrived at the conclusion that the data presented to us is insufficient for determining that the option that was chosen does not satisfy the second subtest of proportionality. It is well known that the second subtest of proportionality does not merely examine whether there is a measure that violates the protected constitutional right to a lesser degree, but it requires us to examine whether that less harmful measure realizes the legislative purpose to the same degree or to a similar degree as the measure chosen by the legislature (see HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak). The state claims, with regard to the difficulty in implementing the French model, that this model does not realize the purpose of improving prison conditions with a budgetary saving to the same extent as this purpose may be realized by amendment 28. Since we are unable to determine in what less harmful way it is possible to achieve the combined purpose of improving prison conditions while making a budgetary saving, which according to the state underlies the purpose of amendment 28, and since this issue naturally requires proof that we do not have before us, the conclusion that follows is that amendment 28 also satisfies the second subtest of proportionality.

50. The third subtest of proportionality is the test of proportionality in the narrow sense. This test is essentially an ethical test in which we are required to examine whether the public benefit that arises from the legislation whose constitutionality is under discussion is commensurate with the damage to the constitutional right caused by that act of legislation (see Gaza Coast Local Council v. Knesset [24], at p. 550; Movement for Quality Government in Israel v. Knesset [19], at para. 60 of the opinion of President Barak). The existence of this proper proportion is examined by striking a balance between the relative social importance of the various principles underlying the expected public benefit from the act of legislation against the degree of harm to the violated human right. Within the framework of this subtest, we should examine the additional social benefit that arises from the legislation relative to the position before the law was enacted, and the additional damage to the constitutional right that is caused by enacting the law (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 91-92 of the opinion of President Barak). The third subtest of proportionality assumes that the constitutional violation satisfies the first two subtests of proportionality. It assumes that there is a rational connection between the act of legislation that violates the constitutional right and the purpose that the act of legislation is intended to achieve, and that the measure chosen by the legislature inflicts upon the constitutional right the least possible harm that is required in order to realize the legislative purpose. Subject to the existence of these requirements, the third subtest examines whether the purpose of the legislation justifies the measures chosen to realize it. The special function of the third subtest of proportionality was discussed by President Emeritus Barak in HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29] in the following terms:

‘... there is a major difference between the first and second subtests and the third subtest. The first two subtests — the rational connection and the least harmful measure — focus on the means of realizing the purpose. If it transpires, according to these, that there is a rational connection between realizing the purpose and the legislative measure that was chosen, and that there is no legislative measure that is less harmful, the violation of the human right — no matter how great — satisfies the subtests. The third subtest is of a different kind. It does not focus merely on the means used to achieve the purpose. It focuses on the violation of the human right that is caused as a result of realizing the proper purpose. It recognizes that not all means that have a rational connection and are the least harmful justify the realization of the purpose. This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the judgment).

In the case before us we are required, within the context of the test of proportionality in the narrow sense, to examine the relationship between the public benefit that arises from amendment 28 and the damage caused by amendment 28 to the constitutional rights to personal liberty and human dignity of inmates in the privately managed prison. When implementing this subtest of the requirement of proportionality, we are also obliged to take into account the provisions provided in amendment 28, which we discussed in paragraphs 41-42 above, that were intended to address the concerns of a violation of the human rights of the inmates as a result of transferring imprisonment powers to a private corporation motivated by a desire to maximize its financial profits.

51. In our deliberations above, we discussed at length the type of violation of human rights created by amendment 28. In paragraphs 22-30 above, we set out in detail the special significances of the violation of liberty as a result of privatization of the prison. Inter alia, we clarified that the violation of the rights to liberty and dignity deriving from introducing a private prison system is not reflected in the actual power of imprisonment, which is invasive in itself, since the actual violation of the personal liberty also occurs when the imprisonment takes place in a state managed prison. In the case of a privately managed prison, the violation lies in the identity and character of the body to which powers are given to violate liberties in the format provided in amendment 28 of the Prisons Ordinance.

We mentioned the democratic legitimacy of the use of force by the state in order to restrict the liberty of individuals and to deny various rights that they have, when this violation is carried out by the organs of the state and for the purposes of protecting the public interest. By contrast, as we clarified above, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined and the extent of the violation of liberty is magnified. As graphically described by one of the scholars that criticize the privatization of prisons, there is a significant difference between a situation in which the party holding the keys to the prison is the state acting for and on behalf of the public, where the inmate is one of the members of that public, and a situation in which the key is entrusted to a commercial enterprise, which represents its own personal economic interest (N. Christie, Crime Control as Industry (second edition, 1994), at p. 104). This difference has implications for the type and extent of the violation. Imprisonment that is based on a private economic purpose turns the inmates, simply by imprisoning them in a private prison, into a means whereby the concessionaire or the operator of the prison can make a profit; thereby, not only is the liberty of the inmate violated, but also his human dignity.

52. Now that we have addressed the violation of human rights that will be caused by amendment 28, we need to examine, within the framework of the third subtest of proportionality, what lies on the other pan of the scales, namely the public benefit that amendment 28 is intended to advance. In its affidavit-in-reply, the state argued that this benefit is a twofold benefit — achieving a significant financial saving, which according to the state is expected throughout the whole period of the concession (which according to the wording of the permit that was attached to the state’s affidavit-in-reply is twenty-four years and eleven months) to reach the amount of NIS 290-350 million, while improving prison conditions for the inmates. In other words, it can be said that the state, in enacting amendment 28, was aware of the need to contend with the serious overcrowding that exists in Israeli prisons, which has also been addressed by this court (see Physicians for Human Rights v. Minister of Public Security [10]). The question before it concerned the means it should adopt in order to contend with this crisis, and in these circumstances the state chose a measure of dealing with the aforesaid crisis that in its opinion is the most economically viable. The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state.

It is important to mention in this context that the special defence mechanisms for prison inmates’ rights that were provided in amendment 28, on which the state and the concessionaire base their replies to the petition, do not constitute a part of the public benefit that amendment 28 is intended to achieve. An examination of these mechanisms as a whole — starting with the various restrictions that were imposed on the powers of the concessionaire’s employees that operate the prison, continuing with the state’s ongoing means of supervising the concessionaire’s activity and ending with the possibility that the state will intervene in what is happening if the private concessionaire does not carry out its undertakings — show that these mechanisms were intended to prevent the private concessionaire abusing the invasive powers given to it within the framework of amendment 28. The introduction of these mechanisms, as we said in paragraph 43 above, is an expression of the fact that the legislature was also aware of the difficulties that amendment 28 raises and the concerns inherent in giving imprisonment powers and the invasive powers deriving therefrom to a private concessionaire. We are therefore not dealing with legislative measures that were enacted merely because the legislature recognized a need to improve the protection of the human rights of inmates in Israeli prisons, but with preventative measures that were intended to neutralize, in so far as possible, the concerns that arise from a transfer of imprisonment powers to a private concessionaire, which was designed to achieve as large an economic saving as possible for the state. In this context we should further add that we are of the opinion that there is an inherent difficulty in estimating the economic benefit that is expected to accrue to the state from the operation of the privately managed prison, certainly when we are speaking of a concession period of almost twenty-five years. Prima facie, in view of the supervisory mechanisms that the state is required to operate by amendment 28, it would appear that the actual economic benefit of amendment 28 can be questioned. Notwithstanding, since it is impossible to determine categorically that amendment 28 is not expected to give rise to an economic benefit to the state, we are prepared for the purposes of our deliberations to assume, as we said in paragraph 47 above, that the economic benefit underlying amendment 28 will indeed be realized.

53. When we examine the question whether the expected benefit that will arise from realizing the purpose of amendment 28 — improving prison conditions while maximizing economic savings — is commensurate with the damage inherent in giving a private concessionaire power to harm inmates, we should remember that since the third subtest of proportionality is essentially an ethical test, it depends to a considerable extent on the values and norms that are accepted in the society under discussion. Naturally, in different countries there may be different outlooks with regard to the question of the scope of state responsibility in various fields and the relationship that should exist between the fields of activity that should be managed by the public sector and the fields in which most activity will be carried out by the private sector. These outlooks are determined, inter alia, by political and economic ideologies, the special history of each country, the structure of the political system and the government, and various social arrangements. These differences between the various countries are expressed in the content of the constitutional arrangements laid down in each country. The role of the court, which is required to interpret and give content to the various constitutional arrangements is not, of course, to decide between various economic and political ideologies; notwithstanding, the court is required to reflect the values enshrined in the social consensus and in the ethical principles that are common to the members of society, to identify the basic principles that make society a democratic society and identify what is fundamental and ethical, while rejecting what is transient and fleeting (see HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [30], at p. 780).

54. As to whether amendment 28 satisfies the test of proportionality in the narrow sense, we have reached the conclusion that the relationship between the intended social benefit of achieving an improvement in prison conditions while making a maximum financial saving by using a private concessionaire, as described in the state’s affidavit-in-reply, and the degree of the violation of human rights caused by the provisions of amendment 28 is a disproportionate one. The violation of the inmates’ human rights that is caused by establishing a privately managed prison in which the private concessionaire’s employees are given extensive powers to use force, which is in essence a sovereign power, is not a violation that is limited to a single issue or an isolated incident. Amendment 28 results in the establishment of an organizational structure whose very existence seriously violates the personal liberty of the inmates of the privately managed prison, to an extent that exceeds what is required by imprisonment itself, and the human dignity of those inmates in the basic and fundamental sense of this concept. This violation is an ongoing violation that occurs continuously for as long as an inmate is confined within a prison where he is subject to the authority of the employees of a private concessionaire. As we have said, this violation is exacerbated by the invasive character of the powers given to the private concessionaire. Indeed, the various supervision and control measures may reduce, and maybe even prevent, the concrete violation of the inmates’ human rights in the privately managed prison as compared with the violation of the human rights of inmates in state managed prisons from the viewpoint of prison conditions and routine; but as we said in paragraph 43 above, these mechanisms do not eliminate the violation of human rights involved in the actual transfer of imprisonment powers over inmates to a private profit-making corporation. In other words, in view of the great social importance of the principles underlying the granting of power to imprison offenders and the invasive powers that derive from it solely to the state, in comparison to the result achieved by realizing the goal of improving prison conditions while making as large a financial saving as possible for the state, the ‘additional’ violation of the constitutional rights to personal liberty and human dignity deriving from granting the aforesaid powers to a private profit-making corporation is disproportionate to the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

It should further be noted that the fact that amendment 28 allows the establishment of only one prison as a ‘pilot’ cannot affect the constitutional analysis that we have made. The reason for this is that, from the viewpoint of the inmates who are supposed to be housed in that prison, the violation of their human rights that derives from their imprisonment in the privately managed prison is caused irrespective of the question whether there are additional inmates imprisoned in other privately managed prisons (in this respect it should be noted that no argument was raised before us with regard to discrimination against inmates in the privately managed prison relative to the inmates in the prisons of the Israel Prison Service, and therefore we see no reason to address this issue).

Therefore, our conclusion is that the damage described above — the greater violation of rights that are in the ‘hard core’ of human rights — is not commensurate with the benefit, in so far as there is any, in the economic saving expected from the construction, management and operation of a prison by a private concessionaire. The purpose of having state managed prison authorities is to realize the law enforcement process by imprisoning persons who have been lawfully sentenced to imprisonment, and to realize sentencing goals with tools and means that the system of democratic government provides for this purpose. No one denies the need to take action to improve the welfare and living conditions of prison inmates in Israel; but blurring the boundaries between this proper purpose and the goal of financial saving, by allowing a private concessionaire of a prison to make financial profits, disproportionately violates human rights and the principles required by the democratic nature of the regime.

55. It should be noted that the petitioners claim that the important purpose of improving the prisons conditions of inmates in Israel can also be achieved in other ways that they indicated, such as building additional state managed prisons or building a prison in which the powers that will be privatized do not include giving the private concessionaire’s employees sovereign power over the inmates. Prima facie, it would appear that the main disadvantage inherent in these methods lies in the economic-administrative sphere, and we are prepared to assume in favour of the state and the concessionaire that the method of operating prisons adopted in amendment 28 will lead to greater economic and administrative efficiency than the methods indicated by the petitioners. But when we balance the violation of the human rights of prison inmates as a result of their being imprisoned in a privately managed prison that operates in the format set out in amendment 28 against the realization of the purpose of improving prison conditions while achieving greater economic and administrative efficiency, the constitutional rights to personal liberty and human dignity are of greater weight. In other words, for the reasons that we have explained above, the benefit to the public interest arising from a realization of the purpose of amendment 28 — improving the prison conditions of inmates while achieving a maximum saving by employing a private concessionaire — is disproportionate to the damage caused as a result of the violation of the human rights of inmates in the privately managed prison. Indeed, in so far as the state is required to improve the prison conditions of inmates — a proper and important purpose — it should be prepared to pay the economic price that this involves, and it should accept that ‘efficiency’ (whatever the meaning of this concept is) is not a supreme value, when we are dealing with a violation of the most basic and important human rights that the state is obliged to uphold.

Therefore, our decision in the case before us is that the social benefit arising from amendment 28 is not commensurate with the violation of protected human rights caused by the provisions of the amendment.

56. Since we have found that amendment 28 does not satisfy the third subtest of proportionality, we are led to the conclusion that the violation of the constitutional rights to personal liberty and human dignity caused by amendment 28 is a disproportionate one that does not satisfy the conditions of the limitations clause. Amendment 28 is therefore unconstitutional.

A comparative analysis of the question of prison privatization

57. Before we conclude our deliberations and examine the consequences of the unconstitutionality of amendment 28, we think it right to address in brief the parties’ arguments regarding the phenomenon of prison privatization around the world. The petitioners argued that experience in other countries shows that the violation of the human rights of inmates of private prisons is greater than the violation of the human rights of their counterparts in state prisons. The respondents for their part argued that the phenomenon of privatizing prisons is not unique to Israel, and various democratic countries, including the United States and Britain, have adopted this method of dealing with the problem of overcrowding in prisons and in order to save on the cost of imprisoning offenders. In none of these countries, it is claimed, has it been held that the privatization of prisons is unconstitutional, or that the state has a constitutional obligation to manage the prisons itself.

58. ‘Privatized’ prisons operate today in various countries around the world, but the manner in which the privatization is implemented and regulated differs from one country to another. This difference is reflected both in the spheres of activity within the prison that can be privatized and in the degree of the state’s supervision of the activity of the party operating the private prison. Thus, for example, the possibility of entering into a contract with private enterprises in order to manage and operate prisons is regulated in legislation, inter alia, in the United States (both on the Federal level and at state level) and Britain. The various acts of legislation that regulate the privatization of prisons differ from one another, inter alia, in the scope of the powers given to the concessionaire in fields that have a potentially significant effect on the human rights of the inmates. In this respect it should be noted that the approach adopted in the United States is that it is possible to give the private concessionaire the responsibility for all of the aspects involved in managing and operating the prison, including the enforcement of discipline in the prison and the use of force against inmates; however, various individual states have determined in their legislation various arrangements regarding the degree of influence given to private enterprises that operate prisons on the dates of the inmates’ release, determining disciplinary rules in the prison and determining disciplinary offences, classifying the inmates from the viewpoint of the benefits to which they are entitled and the degree of state supervision over the activity of the private enterprise (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997)). In Britain too, like in the United States, the private concessionaire and its employees have been given powers that include maintaining security and discipline in the prison and using force against the inmates; but, as a rule, the scope of the powers given to private enterprises that operate prisons is more limited in the British model than in the American model. It would also appear that the state’s supervision over the activity of the private prisons in Britain is more significant than the accepted level of supervision in the United States (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 277-278). As we said in paragraph 48 above, a different model of prison privatization has been adopted in France (and in Germany). According to the French model, private concessionaires were not given all of the duties and powers involved in managing and operating a prison, but, as can be seen from the Knesset’s reply to the petition, only those relating to logistic services. The aforementioned differences in the characteristics of the privatization of prisons in various counties may naturally have considerable significance with regard to the question of the constitutionality of the privatization.

59. From the expert opinions that were filed in this petition — the opinion of Prof. I.P. Robbins for the petitioners and the opinion of Prof. J.F. Blumstein for the concessionaire — it would appear that the courts in the United States have not hitherto held that any of the various legislative arrangements in force in the United States regarding the privatization of prisons are unconstitutional. Indeed, it would appear that the premise of the courts in the United States when considering matters concerning the privatized prisons is that the privatization of the prisons does not in itself give rise to any constitutional difficultly (a good example of this is the judgment of the Federal Court of Appeals for the seventh circuit, in which Judge Posner explained that inmates who raised a constitutional argument against their transfer from a state prison to a private prison ‘would be foolish to do so’; see Pischke v. Litscher [83], at p. 500; for a similar approach of the Federal Courts of Appeal in the United States, see: Montez v. McKinna [84], at p. 866; White v. Lambert [85], at p. 1013. See also the judgment of the Supreme Court of the State of Oklahoma, in which it rejected a claim that giving a permit to counties in the state to enter into contracts with private enterprises in order to manage and operate prisons was an unconstitutional delegation of powers by the legislature: Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County [86]). It would therefore seem that the main questions that have been considered by the courts in the United States regarding the privatization of prisons concerned the scope of the tortious liability of the private prisons and their employees in relation to that of the state prisons and their employees (see Richardson v. McKnight [87]; Correctional Services Corporation v. Malesko [88]). It should be noted, however, that several judgments in the United States have held that the public nature of the role fulfilled by the corporations that operate private prisons makes them subject to the provisions of the Constitution (see Skelton v. Pri-Cor, Inc. [89], at pp. 101-102; Rosborough v. Management and Training Corporation [90]).

60. It should also be noted that we have not found any consideration by the courts in Britain, South Africa and the European Union, as well as by the European Court of Human Rights, of the question of the constitutionality of the privatization of prisons. From the opinion of Prof. J. Jowell that was filed by the state, it would appear that hitherto no claims have been raised before the aforesaid courts with regard to the constitutionality of the privatization of prisons. Prof. Jowell’s opinion is that were arguments of this kind to be raised before those courts, they would not be expected to be successful, inter alia because of the economic character of the issue and the lack of a ground of incompatibility with the provisions of the European Convention on Human Rights.

61. It is therefore possible to summarize by saying that a comparative analysis of the case law on the question of the privatization of prisons shows that no court has yet held that the privatization of prisons is unconstitutional. On the other hand, we have also not found any significant consideration of the questions of constitutionality that the matter raises. This situation is not insignificant and it is capable of justifying great care on our part when we consider the constitutionality of amendment 28, since a comparative examination of the law applying to the privatization of prisons in other countries around the world and of the constitutional questions that this phenomenon raises may help us decide some of the questions that arise in our case and show us additional aspects of these issues. But ultimately the manner in which we interpret the Basic Laws in general and the Basic Law: Human Dignity and Liberty in particular is determined in accordance with the fundamental principles of the system of government and the legal system in Israel.

62. As we said in paragraph 53 above, different countries are likely to have different outlooks on the subject of the duties and obligations of the state in general and of the government in particular. These outlooks are capable of influencing the manner in which the specific issue of the constitutionality of the privatization of prisons is examined. In this context it should be noted that both in the United States and in Britain — unlike in Israel — there is a historical tradition of operating private prisons, which naturally is capable of influencing the manner in which the constitutionality of the privatization of prisons is regarded (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 257-258); White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ supra, at pp. 122-126). Notwithstanding, it should be emphasized that even in countries where prisons have been privatized the matter is subject to serious public debate, and there is also very critical literature regarding the experience that has been accumulated with respect to the operation of private prisons. The main concern raised in this critical literature is that economic considerations will give the private enterprise operating the prison an incentive to increase the number of inmates in the prison, extend their terms of imprisonment or reduce prison conditions and the services provided to inmates in such a way that ultimately this will lead to a greater violation of the inmates’ human rights that what is necessitated by the actual imprisonment. Moreover, the literature raises a concern that parties with economic interests will have an influence on the length of the terms of imprisonment and the types and levels of sanctions. We should point out that this criticism should not be regarded as separable from the arrangements that exist in those systems (see, for example, S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L.J. 437 (2005), at pp. 518-523; D.N. Wecht, ‘Breaking the Code of Deference: Judicial Review of Private Prisons,’ 96 Yale L.J. 815 (1987), at pp. 829-830; J. Greene, ‘Lack of Correctional Services’ in Capitalist Punishment – Prison Privatization & Human Rights (edited by A. Coyle, A. Campbell and R. Neufeld, 2003), 56-66; M.J. Gilbert, ‘How Much is Too Much Privatization in Criminal Justice,’ in Privatization in Criminal Justice – Past, Present and Future (edited by D. Shichor & M.J. Gilbert, 2001), 41, at pp. 58-65 ; Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 110-111; White, op. cit., at pp. 138-139).

In any case, we have not found anything in the pleadings on the subject of comparative law raised by the respondents that is capable of changing our position with regard to the unconstitutionality of amendment 28.

The petitioners’ claims that are based on s. 1 of the Basic Law: the Government

63. Since we have found that amendment 28 is unconstitutional because it disproportionately violates human rights that are protected under the Basic Law: Human Dignity and Liberty, we do not need to consider the petitioners’ claims that are based on s. 1 of the Basic Law: the Government. Indeed, we accept that the Basic Law: the Government, as a Basic Law, enjoys a super-legislative constitutional status, and therefore it is possible to engage in judicial scrutiny of provisions of ‘ordinary’ legislation that are alleged to conflict with the provisions of the Basic Law: the Government (see HCJ 1384/98 Avni v. Prime Minister [31], at p. 209); but in the case before us it would indeed appear, as the respondents argue, that s. 1 of the Basic Law: the Government, which provides that ‘The government is the executive branch of the state,’ is essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system. There is therefore a difficulty in using it as a basis for arguments against the constitutionality of the privatization of various government services. The source of the aforesaid difficulty is that s. 1 of the Basic Law: the Government does not expressly determine specific duties or spheres of activity where the government has an exclusive responsibility to act. Notwithstanding, despite the aforesaid difficulty and especially in view of our outlook concerning the broad interpretation that should be given to provisions that have a constitutional status, we are inclined to interpret the provision of s. 1 of the Basic Law: the Government in a manner that enshrines on a constitutional level the existence of a ‘hard core’ of sovereign powers that the government as the executive branch is liable to exercise itself and that it may not transfer or delegate to private enterprises. As can be seen from the aforesaid, the powers involved in the imprisonment of offenders and in the use of organized force on behalf of the state are indeed included within this ‘hard core.’ Naturally, adopting an interpretation of this kind will require us to define clearly the limits of that ‘hard core,’ since it may be assumed that there is no constitutional impediment to privatization of the vast majority of services provided by the state, and this matter lies mainly within the scope of the discretion of the legislative and executive branches. Nonetheless, in view of the result that we have reached, we are not required to make any firm determination with regard to the interpretation of s. 1 of the Basic Law: the Government, and this issue can be left for consideration at a later date. Moreover, the absence of an express limitations clause in the Basic Law: the Government gives rise to the question of how the constitutionality of a provision of ‘ordinary’ legislation can be examined when it is alleged that it conflicts with a provision of the Basic Law: the Government. In any case, in the matter before us no decision is required on the question of the manner of exercising judicial scrutiny with regard to ordinary legislation that conflicts with one of the Basic Laws that relate to the system of government, such as the Basic Law: the Government. In these circumstances, we are naturally also not called upon to decide the petitioners’ claims regarding the majority with which amendment 28 was passed in the Knesset, since these claims are based on the assumption that amendment 28 conflicts with s. 1 of the Basic Law: the Government.

The constitutional relief

64. Amendment 28 is contrary to the basic principles of the system of government in Israel, since it gives the invasive powers involved in the management and operation of a prison, which until now have belonged exclusively to the state, to a private corporation that operates on a profit-making basis. We have therefore reached the conclusion that amendment 28 violates the constitutional rights to personal liberty and human dignity of the prison inmates that are supposed to serve their sentences in the privately managed prison. This violation does not satisfy the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, since it is disproportionate. Therefore we have reached the conclusion that amendment 28 is unconstitutional. This, then, gives rise to the question of the relief for the unconstitutionality.

65. Amendment 28 creates a complete arrangement regarding the privatization of one prison that will be managed and operated by a private corporation. From our judgment it can be seen that the unconstitutionality inherent in amendment 28 derives from the transfer of powers to imprison inmates and the invasive powers incorporated therein to a private corporation. Indeed, not all the provisions of amendment 28 directly concern the exercise of invasive powers against the inmates in the privately managed prison, and therefore prima facie we need to ask whether there is a basis for declaring amendment 28 void in its entirety. We see no alternative to this outcome, because the arrangement in amendment 28 is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part, and therefore were we to set aside only the provisions concerning the granting of the invasive powers, the remaining provisions would be unable to stand independently and the purpose of amendment 28 would not be realized (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 97-98 of the opinion of President Barak; A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at pp. 736-737). In this context it should be noted that we have not heard any claim that it is possible to separate the various provisions of amendment 28, and during the hearing of the petition the constitutional deliberations concerned the provisions of amendment 28 as a whole. It should be made clear that we are not adopting any position with regard to the ideal arrangement that should replace amendment 28, but we think it right to point out that the petitioners did not dispute the constitutional propriety of transferring logistical powers in the prison, such as those relating to food services, construction work and laundry, to private corporations, and our rulings in this judgment do not exclude this possibility. In any case, when this court has reached the conclusion that a certain act of legislation is unconstitutional, it is not our role to determine the details of the legislative arrangement that will replace the unconstitutional act of legislation. This is the responsibility of the Knesset (see and cf.: Israel Investment Managers Association v. Minister of Finance [7], at pp. 415-416; Tzemah v. Minister of Defence [5], at p. 284 {687}).

It is also important to point out that our decision in this case is based on the violation of human rights that derives from the transfer of the actual powers to imprison offenders, which involve a violation of their human rights, to a private corporation that operates on a profit-making basis. We are not adopting any position on the legality of the transfer of other functions within the law enforcement system to private enterprises or to any other public authority. Similarly, our conclusions in this judgment do not express any opinion on the legality of the privatization of government services in other fields (such as health, education and various social services), which both in the extent to which they relate to the basic powers of the state and in the extent to which they violate human rights are different from the powers involved in holding prison inmates under lock and key.

66. After writing the aforesaid, I saw the opinion of my colleague Justice Procaccia. Obviously I am in agreement with her opinion, in so far as it relates to the state’s liability to enforce the criminal law and the protection of public order and the importance of executive power being exercised by the state in order to protect the individuals under its authority. Our paths diverge with regard to the analysis of the nature and character of the violation of constitutional human rights caused by amendment 28.

67. According to my colleague Justice Procaccia, the constitutional violation caused by amendment 28 is not a concrete violation of human rights but a risk that arises from the potential disproportionate violation of human rights of the inmate of the privately managed prison, beyond the violation caused to each inmate by his actual imprisonment. In her opinion, my colleague Justice Procaccia points to the concern that economic considerations that motivate the private concessionaire, which has been entrusted with sovereign authority, and the lack of control and deterrent measures such as those that restrict the exercise of authority by the civil service, will result in a potentially ‘major, profound and ongoing’ violation of the most fundamental basic rights of the inmates of the privately managed prison. These concerns are not unfounded, and as I said in paragraph 19 above, I too share them. Notwithstanding, in my opinion, were we only speaking of a potential violation of human rights, it is questionable whether this would justify a judicial determination regarding the unconstitutionality of primary legislation of the Knesset. As a rule, we exercise caution and restraint when exercising judicial review of Knesset legislation. Sometimes there is no alternative to exercising judicial review of legislation enacted by the Knesset, and the case before us is such a case; but I am of the opinion that the premise in constitutional scrutiny is that a mere potential violation of human rights is an insufficient basis for setting aside primary legislation of the Knesset.

Indeed, in so far as a certain provision of a Knesset law violates constitutional human rights in a manner that is inconsistent with the Basic Laws, its constitutionality should be examined in accordance with the accepted tests that our case law provides for this purpose. But in so far as we are dealing with a potential violation of human rights, as opposed to an actual violation, then as a rule such a violation will not justify judicial intervention to set aside legislation. The constitutional scrutiny of an act of legislation will take place at the stage of examining the results, after the manner in which it is implemented de facto has become clear (see and cf. HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at pp. 483-484 {354}). Therefore, my position regarding the unconstitutionality of amendment 28 is not based on a potential violation of human rights caused by the provisions of the amendment, but on the actual violation of the constitutional rights to personal liberty and human dignity caused by the provisions of the amendment themselves, irrespective of the manner in which they will actually be implemented. Moreover, apart from the fundamental difficulty inherent in exercising judicial review of Knesset legislation that is entirely based on a potential violation of human rights, I do not think that it is possible to do this in the circumstances of the case before us. The reason for this is that no adequate probative basis has been brought before us for a judicial decision regarding the potential violation that amendment 28 may cause to the human rights of inmates in the privately managed prison in comparison to the state prisons; certainly no sufficient basis was established in order for us to determine that there exists the degree of likelihood proposed by my colleague Justice Procaccia, namely ‘a near certainty that when realized will materially and seriously violate a constitutional basic right’ (see the end of para. 26 of her opinion). It should be remembered that the supervisory mechanisms provided in amendment 28 are capable, prima facie, of reducing the extent of the potential violation of the human rights of inmates discussed by my colleague Justice Procaccia. For this reason also it is hard to determine that the aforesaid probability test is satisfied in the circumstances of the case before us.

68. I should also point out that the approach of my colleague Justice Procaccia regarding the legislative purpose of amendment 28 is also, in my opinion, problematic. Indeed, I agree with the position of my colleague Justice Procaccia that the enactment of amendment 28 was based on a desire to improve prison conditions of inmates in Israeli prisons. Notwithstanding, I do not think that in the circumstances of the case and as can be seen from the state’s reply it is possible to hold that improving the welfare of the prison inmates is the main purpose of amendment 28. As I said in paragraph 52 of my opinion, if it were not for the fact that amendment 28 is based on an economic purpose, there would have been no need to enact it. The purpose of improving the welfare of prison inmates is desirable and praiseworthy, and prima facie it could have been achieved without any need for any normative change. In the circumstances of the case, the purpose of improving the welfare of the inmates cannot be separated from the economic purpose underlying the privatization, which is the main purpose of amendment 28. For this reason, I also have difficulty in examining the constitutionality of the violation of inmates’ rights caused by amendment 28 in relation to the proper purpose of improving the welfare of the inmates as proposed by my colleague. Moreover, in my opinion there is a concern that if we accept the balancing formula proposed by my colleague Justice Procaccia, this will undermine to a large degree the manner in which the limits of permitted violations of human rights are defined within the context of the limitations clause, because it may be assumed that in a considerable number of cases (and especially when we are speaking of an act of legislation that satisfies the requirement of the proper purpose), it will also be possible to ‘translate’ the value of public interest that is weighed on the scales against the violated human right into another human right (and in this regard I attach no special importance to whether we are supposedly speaking of the rights of the same individual). An analysis of this kind is likely to obscure the distinction between the human rights that are protected in our constitutional system and the values and interests that may justify a violation of those rights. My concern is that this conceptual obfuscation contains a potential for weakening the extent of the constitutional protection of human rights in our legal system.

Conclusion

69. Amendment 28 of the Prisons Ordinance causes an unconstitutional violation of the human rights to personal liberty and human dignity that are protected in the Basic Law: Human Dignity and Liberty, and therefore amendment 28 should be set aside. Since the privately managed prison whose establishment is regulated by amendment 28 has not yet begun to operate, we see no reason to suspend the declaration that amendment 28 is void for the purpose of the prison being operated and managed by a private concessionaire. Therefore, if my opinion is heard, we shall determine that amendment 28 of the Prisons Ordinance is set aside with immediate effect because of its unconstitutionality. In order to remove doubt, it should be clarified that we are not adopting any position with regard to the ramifications of the finding that amendment 28 is unconstitutional on the relationship between the state and the concessionaire in the field of private law.

 

 

 

 

Justice E. Arbel

I agree with the opinion of my colleague the president and with her reasoning.

1.    In the president’s comprehensive opinion, she set out at length the functions and powers imposed on the private concessionaire within the framework of the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), by virtue of which a privately managed prison is being built in Israel. All of the aforesaid functions and powers have been entrusted to the state since its establishment and throughout its history and have served as a fundamental element of its sovereignty. The question that lies at the heart of the petition is whether the state can unburden itself of these functions and powers and entrust sovereign functions and powers to private enterprises. Like the president, I too am of the opinion that the answer to this question is no. I would like to add three emphases of my own to her opinion: these relate to the exclusive role of the state in employing coercive force, the violation of the human right to dignity as a result of establishing the privately managed prison and the concern inherent in the privatization of prisons of a conflict of interests in certain matters.

2.    Following the classical philosophers in the field of political science, which my colleague reviewed in her opinion, the power to exercise coercive force to deny or restrict liberty is given to the state by virtue of a metaphorical ‘social contract’ that is made between it and the citizens living in it, in which the citizens voluntarily given the state the power to deny liberties and to make use of coercive force, inter alia in order to guarantee their protection and security and to protect their property (see also Élie Barnavi’s survey in his book The Rise of the Modern State (1995) (Hebrew), at pp. 68-76, 82-89, 97-108). This power that was entrusted to the state as the agent of the political community lies at the very heart of the government’s sovereign functions, alongside the power to maintain an army, a police force and courts. The transfer of these functions from the state to a private enterprise undermines the justification that underlies the exercising of the power and amounts to a refusal by the state, albeit only a partial one, to play ‘its part’ in the social contract. It makes the state a bystander that does not seek to realize independent goals of its own.

Indeed, it is the state that, by virtue of the social contract, realizes the wishes of the community. It is the state that, under that same contract, is given the powers to implement these wishes. And it is the state only that is entitled to exercise coercive measures and employ force in order to realize this purpose, while taking into account public considerations and no others. Only the state has the power to distil the collective aspiration of the community and to reflect the ‘general wishes’ inherent therein of upholding the human rights of each of its individuals (see E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 92), including those whose voices are not heard, since it alone is motivated by the interests of the general public. Only when the state wields this power does it have democratic legitimacy because of the consensual aspect and the nature of its purposes. The agreement between the citizens and the government is not fully realized by transferring the power to employ coercive force, including by means of holding someone in prison, but also by the state being the one that exercises the power as the agent of the political community, since otherwise the justification for its existence will be undermined (see P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations,’ 41 British Journal of Criminology 83 (2001)).

By transferring these powers to a private enterprise, we are no longer dealing with the realization of the wishes of the individuals members of society on the basis of their consent to transfer natural rights to the community in order to promote order and security, but with the transfer of powers to an outsider that is not a party to the social contract, is not bound by the norms inherent therein and does not necessarily seek to realize its goals. This weakens the moral standing of the state vis-à-vis the public in general, and vis-à-vis prison inmates in particular, and it de facto weakens the responsibility and commitment that it owes to the prison inmates, which are now based only on indirect supervision while the role of formulating criteria for exercising the power is left in the hands of the private enterprise. This also erodes to some extent the concept of justice, which no longer stands on its own as a goal in itself, and it may weaken the authority of the organs of state, the integrity with which they are regarded, public confidence in government and the nature of democratic government in its widest sense. In such circumstances, depriving the prison inmates of their liberty loses a significant element of the justification for it.

3.    Transferring the relevant type of powers, which includes significant and persistent aspects of the use of coercive force that are given to the state as sovereign, to a private enterprise inherently violates human rights, including the human right to dignity and the human right to liberty.

The value of human dignity on which I will focus, which for a decade and a half has enjoyed a special status of a super-legislative constitutional right in our legal system, recognizes the worth of human beings and regards them as an end in themselves (see A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 421; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at pp. 277, 280). As the philosopher Immanuel Kant said, a person should not be treated solely as a means of achieving external goals, since this involves a violation of his dignity, or in his words: ‘Accordingly, the practical imperative should be as follows: act in such a way that you treat humanity, whether in yourself or in any other person, always also as an end, and never merely as a means’ (Immanuel Kant, Fundamental Principles of the Metaphysics of Morals). In particular, the value of human dignity contains a set of rights without which man’s being a free creature has no meaning (see HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32]). In the context before us, this right includes, inter alia, ‘minimal civilized humane arrangements for the manner of satisfying these needs in order to uphold his dignity as a human being from a psychological viewpoint’ (see CrimApp 3734/92 State of Israel v. Azazmi [33]). Indeed, when he enters the prison, the inmate takes with him all his human rights, except for those that he is necessarily deprived of by the imprisonment, and especially the right to freedom of movement. Therefore, the state and the organs of government have the duty not to violate the inmate’s right to human dignity to a greater extent than required for achieving the purposes of the imprisonment. These are not mere words but a determination that has operative significance (see CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34], at p. 526). The question of what will be regarded as a violation of human dignity requires us to take into account, inter alia, ‘the circumstances of time and place, the basic values of society and its lifestyle, the social and political consensus and normative reality’ (Commitment to Peace and Social Justice Society v. Minister of Finance [32], at para. 13). Within this framework, care should be taken, on the one hand, not to interpret ‘human dignity’ so broadly that every human right is included in it, and on the other hand not to limit its scope merely to extreme cases of torture and degradation, since this will frustrate the purpose underlying the right (see HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [9], at p. 518; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 285).

4.    Imprisoning someone in a privately managed prison involves a violation of the right to dignity that is not merely a potential violation that depends upon the realization of concerns regarding the nature, standard and quality of the service that will be provided by the private operator, but a violation that is realized and comes into existence when the imprisonment powers and the powers ancillary thereto are exercised by a private concessionaire.

Indeed, in addition to the inmate being placed under lock and key, for the whole period of his sentence he is subject to a regime that is marked by the use of force against him in respect of each facet of his life. During his term of imprisonment, the inmate loses his independence, the strict daily schedule is dictated by the prison authorities, and his access to the protections that the law affords him against a violation of his rights is indirect and restricted. Alongside this, in prison an inmate is likely to encounter, often in an unexpected manner, concrete situations of an increased violation of his rights in certain circumstances and conditions, including the possibility of being held in administrative isolation, undergoing a body search that is carried out forcibly, being prevented from meeting a lawyer subject to various restrictions, being subjected to a visual inspection of his naked body, etc.. The power to carry out these actions, which include direct and potential aspects of a violation of the right to privacy, the right to liberty, the freedom of movement, the right to dignity and additional rights, is also granted under section 128R of the Prisons Ordinance, albeit subject to various conditions, to the governor of the privately managed prison.

Granting a power to employ invasive powers of these kinds to someone that is chosen by a private concessionaire, who is motivated by business concerns and is not subject to the authority and direct supervision of the government authority, its public traditions, its written and unwritten rules, the interest of the general public or the considerations that underlie the imposition of the sentence, undermines the rationale justifying the use of force as a proportionate measure for realizing public purposes. It implies arbitrariness, lessens the worth of human beings and violates their dignity. Employing coercive force in such a situation no longer relies on the broad consensus that is intended to allow a safe society, but on a shirking of a significant part of the direct responsibility and the need for accountability. It abandons the prison inmate, who is already at the bottom of the social ladder and in a sensitive and vulnerable situation, to his fate.

5.    Moreover, transferring imprisonment powers from the state to a party whose main purpose is by definition the pursuit of profit invites the inclusion of foreign and irrelevant considerations among those weighed by that party. These are inconsistent with the need to guarantee the rights and welfare of the inmates. This conflict of interests does not need to be realized de facto or to find any practical expression, but it is not eliminated even if, as the respondents claim, the privatization may achieve its stated goal of benefiting the inmates and improving their conditions in certain respects. The fact that a private enterprise, which is chosen and operates on the basis of its ability to maximize income and minimize expenditure, is given the powers under discussion, with their invasive elements, is sufficient reason to regard actions that are usually permitted as forbidden; it violates the human dignity of the prison inmates and exacerbates the violation of their liberty that is caused by the actual imprisonment.

Indeed, imprisonment powers are not limited merely to ‘technical’ administrative matters that do not involve any exercise of discretion by the responsible party in questions concerning a violation of human rights. Examples of this can be found in amendment 28, inter alia, in the power given to the governor of the prison to order an inmate to be held in isolation for a period of up to 48 hours in certain circumstances and under certain conditions (s. 128R(c)(1) of the Prisons Ordinance); the power of the governor of the prison to order an inmate to provide a urine sample, to conduct an external examination of his naked body and to search his body while using reasonable force in certain circumstances and under certain conditions (s. 128R(c)(4)-(5) of the Prisons Ordinance); the duty of the parole board, when it considers the possibility of commuting the term of an inmate’s imprisonment, also to take into account, among its other considerations, the recommendation regarding the inmate given by the governor of the privately managed prison (s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001), etc.. These powers involve a large element of discretion regarding parameters and criteria for exercising the power. Introducing economic considerations as independent considerations and even paramount ones, without it being necessary to reconcile the profit considerations with those underlying the imprisonment and the manner of implementing it, subordinates those considerations that are normally of the greatest importance to business considerations and allows them to be realized only in so far as they are consistent with the economic purpose, which constitutes the premise. Thus the main goal of exercising the power of imprisonment openly and unashamedly becomes a business goal; the inmates become de facto a means of realizing this goal; the ‘customers’ to whom the corporation is accountable are its shareholders; the scope of considerations is restricted and may become distorted; and the public purposes underlying imprisonment unintentionally become a secondary goal. The aspiration to reduce costs, which according to the supporters of the market economy approach is restrained in ordinary business activity by the ‘concealed hand’ in the free market mechanism and competition, has no restraint in the present case where there is no competition (which is certainly as it should be). In such circumstances, this aspiration is likely to conflict with the need to protect inmates’ rights, which costs money. Peleg, who considered the problem in a broader context, aptly said that —

‘The altruistic trust approach, which prevails today in public law, will not be voluntarily upheld by the privatized body. Between the interests of the individual and the privatized enterprise there is a huge conflict of interests (emphasis in the original). Respecting the constitutional rights of the individual costs a considerable amount of money. The privatized enterprise seeks to make a profit… Minimizing expenditure also implies a reduction in the welfare and even the health of the patient. The corporation seeks to provide a service, but mainly to make as large a profit as possible as quickly as possible. It regards itself as loyal to itself only… The worker in the privatized corporation regards the owner as his “boss,” as a kind of sovereign, who influences his welfare. Naturally he will do whatever serves his employer’s interest, thereby serving his own interest. In a choice between the employer’s interest and the patient’s interest, his choice will be clear…

The inherent conflict of interests is between the aspiration of the privatized enterprise to make as much profit as possible and the interest to improve the quality of the privatized service. The concern is strengthened when the customers are needy and weak. Privatization in the public interest is a privatization that ultimately improves the quality of the service; otherwise, one may well ask whether the privatization is really in the public interest’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 63).

As we have said, the violation of the rights of prison inmates, and especially the right to dignity, is not necessarily a concrete or a direct one. Admittedly, it is not possible, for example, to allay utterly the concern that in so far as the directors of the privately managed prison choose to reduce their costs for the salaries of prison employees whom they employ, this will lead, inter alia, to the employment of less experienced and qualified staff, who will change frequently and find it increasingly difficult to contend with the sensitive situations that arise from time to time in the prison. It is also not possible to rule out for certain the fear the hidden interests will be taken into account and that there is an increased risk of corruption when the party operating the prison is a private enterprise. But it is difficult to draw unequivocal operative conclusions from this potential that there is a greater probability of a worse violation of inmates’ human rights in a privately managed prison. The same is true with regard to concerns that the quality of services that will be provided by a privately managed prison in fields such as health care, drug addiction rehabilitation, professional training and general rehabilitation, which prima facie are addressed in the contract between the state and the operator of the prison (see Y. Feld, Crime Pays: What can be Learned from the American Experience in Privatizing Prisons (Adva Centre, 2002)). But even if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved when the invasive powers are exercised, something that undermines the moral authority underlying the activity of that enterprise and public confidence in it (Feld), since even if justice is done, it is not seen to be done. This is not a mere matter of aesthetics; the harm is real, since it upsets the delicate balance between the need to deny the liberty of the inmates in order to realize the social purposes at the heart of the criminal law and sentencing policy, and the desire to protect the basic rights of the inmates even while they are paying their debt to society. This results in an independent violation of the right of prison inmates to dignity.

6.    It is true that the supervision for which the state is responsible and the standards which the private concessionaire is required to meet seriously curtail the concessionaire’s ability to sacrifice the rights and welfare of the inmates in the privately managed prison to its profits. Indeed, as the president said, amendment 28 includes several mechanisms that reduce the concern of a violation of the basic rights of the inmates and provide an effective ‘address’ to which complaints and grievances about what happens in the prison may be sent.

However, not only is it questionable whether these supervisory mechanisms are capable of ‘covering’ all the situations in which there is a concern that the human rights of the inmates will be violated, since it is sometimes hard to predict how these will occur, but it is also doubtful whether they can truly locate and identify the nature of the considerations underlying the employment of an invasive measure that is formally permitted by the law, and prevent the preference of economic considerations when these involve a violation of the inmates’ rights. At the same time, it should be remembered that prison inmates are often a particularly weak sector of the population, and while in the prison they are in a susceptible and vulnerable position where they have been deprived of a significant number of their rights. In these circumstances, since the activity that takes place in the prison is hidden from the light of day, it is questionable whether some of the components of the supervision mechanism, which depends upon a direct flow of information from the victim to the supervisory body so that the latter can exercise its authority, will be effective. Therefore, the supervisory mechanism may become of limited value in ensuring that the privately managed prison discharges its duties, with the result that the concerns are not addressed. Moreover, the supervisory mechanism naturally provides relief in certain situations only after the event, and sometimes a period of time may pass before it is possible to prevent the continuation of an invasive practice. When we are dealing with the most basic of human rights like those that concern prison inmates that are serving their sentences, this fact may have serious repercussions. Even in places where the private concessionaire has incentives that are designed to induce him to improve from the outset the services that he provides, there is a difficulty in the fact that his decision as to whether to succumb to these incentives depends upon the degree of benefit that they afford him relative to the cost of improving the service he provides. Finally, as the president said, the aforesaid supervisory mechanism, which seeks to contend with every problem on an individual basis, cannot contend with the fundamental difficulty inherent in the transfer of imprisonment powers and the accompanying powers to a private enterprise. To a large extent, the detailed provisions regarding the mechanism highlight this difficulty.

7.    This court has said many times that —

‘Any human right that a human being has is retained even when he is held under arrest or in prison, and the mere fact of the imprisonment does not deny him any right unless it is required and implied by the actual loss of his freedom of movement, or when there is an express provision of law to this effect’ (HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; PPA 4463/94 Golan v. Prisons Service [11]; HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298).

The harm to a prison inmate held in a privately managed prison includes an independent element of a violation of his dignity that goes beyond the violation that derives from the imprisonment itself. Indeed, if the state chooses to discharge its responsibility for a prison inmate by means of indirect supervision of the prison in which he is held, the dignity of that inmate is violated. If an inmate is held in a prison where the prison employees are chosen by a private profit-making enterprise on the basis of unclear criteria, the dignity of that inmate is violated. If the liberty of an inmate is denied on an ongoing basis by a private concessionaire that has discretion to employ again him far-reaching powers that violate his basic rights, the dignity of that inmate is violated. The value of human dignity deserves broad protection, even if it is not absolute, and in the struggle against conflicting interests it should be given great weight and protected against any violation that is unnecessary or excessive. Since in my opinion the aforesaid violations of the inmates’ rights that result from the creation of the privately managed prison exceed their economic benefit, which itself is not free from doubt, and since the mechanisms provided by amendment 28 are incapable of preventing the aforesaid violations, which are of greater scope than any solution that may be given to a specific violation, I have decided to join my opinion to that of my colleague the president and order amendment 28 to be set aside.

 

 

Justice A. Grunis

I agree with the opinion of my colleague the president, subject to the reservation that I see no need to address the issue of human dignity in the context under discussion. It is sufficient merely to hold that there is a violation of personal liberty.

 

 

Vice-President E. Rivlin

I concur with the opinion of my colleague, the president. My colleague holds that transferring powers of imprisonment entrusted to the state over to a private enterprise violates the constitutional human rights protected under the Basic Law: Human Dignity and Liberty. My colleague also finds that this violation does not satisfy the provisions of the limitations clause, and as such, the Prisons Ordinance Amendment Law (no. 28), 5764-2004, should be set aside. I agree with my colleague’s reasoning and her conclusions. There is no doubt that setting aside Knesset legislation is reserved for cases in which there is a fundamental violation of protected constitutional principles that fails to satisfy the limitations clause provisions. In this case, the arrangement provided for in the law does not merely allow the state to seek assistance of private enterprise in carrying out its sovereign obligations, but rather constitutes a real privatization of imprisonment and transferral of a significant part of its powers. The violation involved in the arrangement undermines the very structure of the democratic constitution. It is also possible to hold that we are dealing with a violation that exceeds the scope of the Basic Laws, and lies in the field of the social contract upon which the existence of the state is founded. Releasing the state from the monopoly granted to it with regard to the use of force in order to protect the public interest undermines the principles upon which the entire social and constitutional foundations of the state rest.

For this reason, as well as for those set out by my colleague the president in her comprehensive opinion, I concur with the conclusion that amendment 28 of the Prisons Ordinance is void.

 

 

Justice A. Procaccia

1.    This proceeding concerns a constitutional question of great importance that touches on the limits of what the state may and may not do when exercising the coercive authority given to it in order to maintain public order and security, and regarding the transfer thereof to private hands. By the expression ‘coercive authority’ in this context I mean the powers that the state is given under the law to prosecute criminal proceedings at all of its stages — investigation, arrest, trial and imprisonment — while exercising the institutional power that allows it to restrict a person’s liberty and violate additional human rights that he has, including the rights to privacy, freedom of occupation, property and sometimes even his dignity as a human being.

2.    My colleague, President Beinisch, devoted extensive legal research and analysis to the complex subject of the relationship between the duty of the state to maintain public order and security in its broadest sense and to afford a basic protection of human rights — in this case, the rights of prison inmates — in the context of the question whether the state may unburden itself of its direct sovereign duty to manage prisons and transfer it to private hands. I agree with the conclusion that in the complex balance between these values, the necessary outcome is that the sovereign responsibility of the state to manage a prison and its duty within that framework to exercise coercive authority over the individual as a part of the process of enforcing the criminal law and implementing sentences, cannot be transferred to private hands. This is because of the potential that the core human rights given to a prison inmate may be violated to a greater extent than is permitted under the limitations clause in the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’). Therefore, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’ or ‘the Ordinance’) should be set aside.

3.    I would like to make several comments regarding the analysis of the constitutional violation inherent in amendment 28 of the Ordinance, and especially with regard to the manner of striking the constitutional balance between it and conflicting interests and rights for the purpose of examining whether it satisfies the conditions of the limitations clause in the Basic Law.

The limits and restraint of sovereign power — the doctrine of balances in the exercise of sovereign power

4.    The state has authority over and responsibility for all stages of criminal proceedings. The social contract on which the democratic political system is predicated assumes that for the purpose of ensuring the existence of human society, public order is essential, as well as a sovereign body that will be responsible for maintaining it. The state is responsible for preserving a normative system that will define the rules of what human beings may and may not do, and it will enforce compliance with these as an essential part of the protection of public order (H.L.A. Hart, Punishment and Responsibility (second edition, 2008), at pp. 4-5).

5.    The enforcement of norms of conduct, for which the state is responsible, incorporates a power to exercise authority over individuals who breach the rules of conduct and thereby undermine the social order. For this purpose, the executive branch is given powers to investigate, arrest, try, sentence and imprison. Exercising these powers naturally involves a potential violation of the basic rights of the individual — his liberty, occupation, property, privacy and sometimes even his dignity.

6.    The potential violation of human rights that is inherent in the exercise of sovereign coercive authority within the context of criminal proceedings requires a strict definition of the limits of sovereign power. Indeed, the rules concerning the exercise of sovereign power have an inbuilt system of checks that defines its limits. The existence of sovereign power and the restrictions inherent in the exercise thereof are inseparable. The legitimacy of the exercise of sovereign coercive authority over the individual is derived from the restrictions on this power. It originates in the outlook that it may be exercised only to the limited degree necessary for maintaining public order, while violating the basic rights of the individual to the smallest degree possible. The restraint of sovereign power that is exercised over the individual lies at the heart of the democratic system of government, and is of its very essence (CrimFH 10987/07 State of Israel v. Cohen [22], at paras. 4-6 of my opinion).

7.    Alongside the substantive criminal norms determined by the state for the purpose of ensuring public order, it is given powers to enforce these norms in a criminal proceeding. Within the scope of these powers, it is authorized to conduct interrogations and searches, seize property, carry out arrests, hold trials, impose sentences and imprison convicts. In the course of enforcing the norms in the criminal trial, human rights are violated, sometimes seriously. The rights to liberty and dignity, freedom of movement, freedom of occupation, property and privacy may be violated. The criminal proceeding and the basic rationale underlying it are based on an essential balance between the enforcement power given to the sovereign authority and the protection of the basic rights of the individual involved in that proceeding. The basic rules of the criminal proceeding are intended, inter alia, to restrain the sovereign power that is exercised over the individual involved in it and restrict it to the minimum necessary for achieving its proper purpose.

8.    Therefore, at every stage of the criminal proceeding, whether it is the criminal investigation, the trial, the sentence or the imprisonment, a balance is continually required between the exercise of sovereign force that is required to enforce the law and the protection of the human rights of the suspect, accused, convict and prison inmate. The organs of the state, which are each responsible for a different stage of the criminal proceeding, are constantly required to strike a balance between the essential degree to which executive coercive authority is exercised over the individual and the maximum possible protection of his basic rights as a human being, on as wide a scale as possible, subject only to realization of the proper purpose of the criminal proceeding. This applies to police officers at the investigation stage and when arresting a suspect; it applies to the court during the trial and when passing judgment; and it applies to the Israel Prison Service authorities when an inmate is serving a custodial sentence, which is also a part of the criminal proceeding (A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008) (according to the version in the appendix attached to the petitioners’ notice)).

9.    The enforcement power that is given to the state in the criminal proceeding is a power that is limited to the achievement of the enforcement purpose and no more, and it is based on a concept of proportionality: human rights should not be violated in the criminal proceeding unless it is to uphold an essential public interest, and to an extent that is not excessive in the constitutional sense of this term. The police investigators, who are responsible for exercising the authority of conducting a criminal investigation and who have the powers to carry out interrogations, make arrests and conduct searches, are subject to restrictions on the exercise of the powers given to them in order to protect the rights of the person under investigation, including his liberty, dignity and privacy. These limits on their power are dictated solely by the essential needs of the investigation, and exceeding these limits is not permissible (cf. HCJ 5100/94 Public Committee Against Torture v. Government of Israel [36]). In conducting the trial and passing sentence, the court is responsible for striking a balance between the sentencing power that it exercises over the offender and the concern for his rights as a human being and his rehabilitation. In the last stage of the criminal proceeding — the offender’s imprisonment — the prison authorities, as organs of the state, have sovereign coercive authority to take steps against inmates in order to maintain order and security inside and outside the prison. This power is also limited in nature to what is absolutely essential in order to achieve the purpose for which it is exercised, and the authorities may not exercise it in a given case beyond what is necessary. Thus sovereign coercive authority and the exercise thereof over the individual are rooted in a constant tension between guaranteeing the basic rights of the individual and protecting the community’s interest in maintaining order and public security.

10. Limiting and restraining sovereign enforcement power derives from the respect for human rights in a constitutional system of government. The recognition of human rights as elevated rights is intended to protect the status of the individual in society and the status of the minority against the power-wielding majority. Basic rights, which include the rights to life, liberty, dignity, occupation, property and privacy, are intended to safeguard not merely the life of the individual per se but also the quality and meaning of his life in accordance with modern constitutional thinking. The principle of limiting sovereign power is a part of a general constitutional philosophy that is based on a recognition that in order to maintain a proper communal life, it is essential to provide a solution to society’s need for order and public security, while at the same time respecting the basic rights of the individual. This combination of guaranteeing the public interest while protecting the rights of the individual lies at the heart of the constitutional system of government. It requires a continual balance between these two forces, around which the constitutional world revolves. The duty of striking a balance makes each of these values a relative one that cannot be realized absolutely. Notwithstanding, these conflicting values derive from the same source and reflect a general ethical outlook of a recognition of human rights in a civilized society. Human rights, despite the elevated status given to them in the constitutional system, are not absolute but relative, and they need to be balanced against and coexist with the essential interests of society. On the other hand, the sovereign enforcement power that is intended to protect public order, which is reflected in the criminal proceeding, is limited solely to what is absolutely essential for achieving its proper goal, since exercising it involves a violation of human rights. The tension that exists between the public interest in maintaining order and public security and the protection of basic human rights and the duty to strike a balance between them are among the most prominent characteristics of the system of government and constitutional law.

‘The constitutional revolution does not set aside the right of society to protect itself against offenders… Our constitutional revolution was intended to allow a violation of human rights in order to maintain a social framework that upholds human rights. It recognizes a need to restrict human rights in order to build a state that promotes human rights. Indeed, human rights and the restrictions imposed on them derive from the same source and reflect the same values. Basic rights are not absolute. They may be restricted. But the restrictions on basic rights are limited to what is necessary to protect human dignity and liberty’ (A. Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and Its Implications for (Substantive and Procedural) Criminal Law,’ 13(1) Bar Ilan Law Studies (Mehkarei Mishpat) 5 (1996), at p. 10).

In this tension between the public interest and the rights of the individual, the tendency is to protect in so far as possible the scope of human rights up to the point beyond which the public interest in law enforcement may be seriously and materially harmed.

The nature of sovereign coercive authority and the state’s exercise thereof

11. The place of institutional coercive authority in modern human society, the restraint required in exercising it while continually striking a balance between it and human rights, the danger of a violation of basic rights inherent in any departure from the proper balance and the tools and means given to the state when exercising institutional power, as the party that laid down the rules for exercising that authority and that bears the legal, moral and public responsibility for implementing those tools and means, all lead to the conclusion that the sovereign body that is responsible for making the rules for exercising the authority should not be separated from the body that operates and implements them in practice.

12. The social contract, which gave the sovereign the responsibility to define norms of conduct in society, is what also gave it the responsibility for enforcing them. It delineates, in accordance with the principles of the system of government, the limits of the exercise of institutional power, the limits whereof are defined by the duty of respecting rights of the individual as a human being. The sovereign, which is responsible for determining the criminal norm and which has been given the power to punish criminals, within the broad meaning of this term, is legally, socially and morally responsible for exercising this power, while complying with all of its restrictions. In so far as the state is responsible for exercising sovereign coercive authority, so too it is responsible for guaranteeing the human rights of anyone over whom it exercises this authority. This responsibility determines the limits and restraints of power, and it restricts its scope solely to what is essential in order to achieve the proper social purpose. The exercise of sovereign coercive authority and the limits upon the exercise thereof are one and the same and cannot be separated from one another.

13. The basic rights of persons under interrogation, defendants, convicts and prison inmates within the framework of the criminal proceeding are not safeguarded solely by the existence of proper norms that are enshrined in law. Safeguarding them is conditional upon the manner in which the norms provided by law are enforced in practice by the police, the courts and the prison authorities. Restraint in the exercise of institutional power, which is the result of the balance that needs to be struck between sovereign coercive force and the basic rights of the individual, is examined de facto by its implementation on a daily basis. In the criminal proceeding, the identity of the party exercising institutional coercive authority over the individual is of supreme importance in guaranteeing the proper balance in implementing the limits of the use of power.

14. It is the state that has always exercised sovereign coercive authority over the individual in criminal proceedings. As the party that determined the norms of conduct and is responsible for their enforcement, it is the party that is directly responsible for the restraint and checks required by the exercise of power. It is the party that is supposed to be accountable to the public for the manner in which its powers in the criminal proceeding are exercised, and it has the weight of education, knowledge and experience, the tools and all the essential resources for making the necessary balances that dictate the limits of the use of power. The doctrine of balances in the exercise of sovereign coercive authority over the individual is part of the ‘genetic code’ of the sovereign authority. It is not found in the makeup of some other party that originated outside the sovereign authority, for which the duty of striking balances is foreign to its thinking and is not an inherent part of its modus operandi.

15. Moreover, the state has an effective deterrent mechanism for the manner in which sovereign coercive authority is exercised by organs acting on its behalf, in the form of administrative and judicial scrutiny of its representatives’ actions. This scrutiny has a significant deterrent effect against the abuse of sovereign power and authority by representatives of the state at the various stages of the criminal proceeding. The existence of this supervisory mechanism is a most important guarantee of the restraint and limits of sovereign coercive authority that is exercised over the individual in a criminal proceeding. An organ of the state that exercises coercive authority over the individual is subject to the administrative supervision of state authorities, is bound by the rules of ethics and disciplinary procedures of the civil service and is required to comply with strict legal criteria within the framework of the judicial scrutiny of its mode of conduct (HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at p. 424). It is therefore unsurprising that there are unequivocal restrictions on the recognition, by way of interpretation, of an implied power to delegate sovereign powers to private enterprises (I. Zamir, Administrative Authority (vol. 2, 1996), at p. 562). Indeed, such an interpretation is adopted sparingly, and only when there is a real need that justifies it (HCJ 1783/00 Haifa Chemicals v. Attorney-General [18], at p. 656). If there are restrictions on inferring the permissibility of a delegation of a sovereign power involving the exercise of administrative discretion to a private enterprise, similar restrictions apply a fortiori to the delegation of power involving coercive authority that can be exercised over the individual in a manner that violates the most basic of his human rights. It has been said of the power of criminal investigation:

‘The power to conduct a criminal investigation involves a power, and therefore also a danger, of violating the privacy, dignity, liberty and property of persons under investigation (Public Committee Against Torture v. Government of Israel [36], at p. 831). For this reason, as a rule a power given by legislation to a government authority, which authorizes someone to investigate a suspicion that an offence has been committed, should be interpreted as referring to the appointment of a civil servant who is subject to the authority and supervision of the government authority and who is subject to the disciplinary procedures and rules of ethics that apply to members of the civil service… and because of the special character of the investigative function, which when exercised involves a concern of a violation of the basic rights of the individual, it should be entrusted to civil servants’ (CrimA 4855/02 State of Israel v. Borovitz [37], at pp. 833-834 (emphases added)).

16. Ensuring the limits of sovereign power exercised over the individual in the criminal proceeding at all its stages also requires it to be exercised in such a way that it is entirely free of any suspicion of a conflict of interests of any kind. The involvement of an improper and irrelevant consideration in the exercise of sovereign coercive authority in the criminal proceeding creates a real potential risk of a distortion of the proper balance between the need to use power to achieve a purpose in the public interest and the protection of the human rights of the individual. The involvement of an improper consideration in the necessary balance between the public need for the preservation of public order and compliance with the law, on the one hand, and the individual’s rights to liberty and personal dignity, on the other, may undermine the proper equilibrium between the various forces operating in this sphere and result in improper harm to the individual. Exercising sovereign power over the individual in criminal proceedings should be entirely divorced from improper considerations, and it should be done with a complete commitment to the rules of restraint in the use of force, upon which the fate of the individual who is subject to sovereign authority depends.

17. Finally, the sovereign coercive authority exercised by the state over the citizen in the criminal proceeding is a part of a broad social consensus according to which exercising it is essential for maintaining public order and a proper social life. This consensus assumes that the exercise of coercive force will be done by the state authorities, which derive their moral and legal power from the public that has placed its confidence in them. The sovereign authority is regarded as the trustee of the public and as someone who is entrusted by it to manage society’s affairs, while showing concern for the individual that lives in that society. This public confidence is not given to any entity other than the state authorities. A private enterprise that exercises sovereign coercive authority over the individual in the criminal proceeding does not act as a public trustee. Its status and actions are not based on a broad social consensus, and its exercise of sovereign coercive authority over the individual does not enjoy the essential legitimacy that characterizes the actions of the government.

The risk in transferring the exercise of sovereign coercive authority to a private enterprise

18. Transferring the exercise of sovereign power to a private enterprise, which is not one of the organs of the state, is problematic in several respects, even though it is likely to bring with it, at the same time, social, economic and cultural benefits that serve the public interest in various fields. When speaking of a transfer of executive power that includes a real potential for violating major human rights — including a violation of liberty and dignity — the difficulty in such a transfer is particularly problematic. The balance and restraint in the exercise of enforcement power at every stage of the criminal proceeding, for the purpose of protecting human rights, cannot be relied upon in the hands of a party that is not an organ of the state. The limits of power are not protected by the basic guarantees that are intended to serve as a deterrent against any overstepping in the exercise of sovereign power and against any abuse thereof: the private enterprise that is entrusted with sovereign power involving a potential for violating core rights of the individual is not governed by the rules of conduct and the criteria that dictate the manner of exercising institutional coercive authority and regulate the action of the organs of state. The private enterprise was not born and brought up in this framework, it is unfamiliar with its concepts and it has never internalized the doctrine of balances in the exercise of sovereign power, in all of its particulars and aspects. The doctrine of balances, which demands that the public interest in maintaining order should be weighed against the duty to limit the violation of human rights to what is absolutely essential for achieving the purpose, is a doctrine that it does not know. The mechanisms of training, education, supervision and discipline that are built into the civil service for its employees, and which define the rules of exercising sovereign power, do not apply to it. The constitutional doctrine of balances that directs the way in which sovereign coercive authority is exercised at every stage of the criminal proceeding is not a part of the experience of the private enterprise when it exercises this power.

19. Moreover, when it receives authority to exercise sovereign power, the private enterprise is unavoidably associated with substantial concerns regarding conflicts of interests in its actions. Its entry into fields that are clearly areas of sovereign activity is motivated by private considerations of profitability. Considerations of economic feasibility and private profit-making are completely foreign to the doctrine of balances in the exercise of sovereign coercive authority in the criminal proceeding. Introducing various elements of viability into considerations of exercising power involves a potential for a real violation of the proper equilibrium between the relevant considerations that should be taken into account when exercising the power (HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16], at p. 213; HCJ 39/82 Hanfling v. Mayor of Ashdod [38], at pp. 540-542; Haifa Chemicals v. Attorney-General [18], at p. 656; Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 309-310).

20. When sovereign coercive authority is exercised in a manner that violates core human rights — including the rights to liberty and dignity — a real concern arises that transferring it to a private enterprise will result in disproportionate harm to the individual, which may make such a transfer illegitimate. When sovereign authority given to the state, which is capable of violating core human rights, is exercised by a private enterprise that is motivated by considerations of its own profit, the moral and ethical basis underlying the exercise of sovereign power is undermined. According to the principles of the system of government, this power was entrusted to the sovereign as a result of a broad social consensus in order to achieve a defined purpose, and exercising it requires a strict observance of the criteria that are built into the system. There is no guarantee that these criteria will be observed by the private enterprise, and when the risk that they will be breached is likely to violate core human rights, the transfer of the powers becomes unacceptable a priori from a constitutional viewpoint. Finally, the private enterprise that exercises sovereign coercive authority does not lean in its actions on the broad confidence that society has in the state as a part of the social consensus, which gives the sovereign power and responsibility to uphold public order. The exercise of coercive authority by a party that is not the state, which violates core human rights, necessarily does not enjoy the confidence and acceptance of society. It lacks social, moral and constitutional legitimacy.

21. The existence of state supervision over the manner in which the coercive authority is exercised by the private enterprise may to some extent diminish the potential for harming the individual, but it cannot materially reduce the extent of the violation inherent therein. Such supervision is mainly an umbrella supervision, which extends over the whole system and has difficulty in encompassing, before the event, the whole scope of the routine actions of the party exercising the power, which are carried out continually. A supervisory mechanism, by its very nature, reacts only after the occurrence of an unconstitutional violation of human rights and focuses on the general normative aspect of the activity, as distinct from ordinary everyday activity, which presents the great danger of harm to the individual. By privatizing the exercise of sovereign coercive authority, the discretion to exercise this authority is given to the private enterprise, even if the general guidelines and policy guidelines are laid down by the sovereign supervisory body. State supervision does not provide a proper solution to the dilemma involved in privatizing a power to exercise sovereign coercive authority, nor does it materially reduce the potential for harm to the individual that is likely to result from such a privatization.

22. Severing the essential connection between the party responsible for exercising the sovereign authority in order to maintain public order and the party responsible for guaranteeing the core human rights of the individual as the authority is exercised is likely to cause considerable harm to the democratic constitutional basis on which the political system in Israel is based. Entrusting sovereign coercive authority in the criminal proceeding to a private enterprise involves significant harm of this kind.

The constitutional violation in transferring sovereign coercive authority to manage a prison to a private enterprise

23. Sovereign coercive authority, which is exercised within the framework of the criminal proceeding, does not end when sentence has been passed and the judgment becomes absolute. Enforcement of the judgment by way of imprisonment is an additional element of the criminal proceeding, in which the organ of state is given the power to exercise its coercive authority in order to carry out the judgment, while guaranteeing order and security both inside the prison and outside it.

24. The prison inmate is subject to inherent restrictions that derive directly from his imprisonment. The infringement upon the freedom of movement, the freedom of occupation, the right to privacy, the right to property and the freedom of expression are a direct consequence of his imprisonment. But the restrictions on the human rights of the prison inmate are not limited to these. His rights may suffer additional violations as a result of the measures taken against him by the prison authorities in order to ensure the proper running of the prison and to protect the safety of its inmates and the public outside it. The authority that manages the prison has powers to impose various restrictions on inmates in order to maintain order and security inside it, protect the safety of the inmates and the security of prison visitors, and ensure the security of the public outside the prison against risks that the inmates imprisoned inside it may present. The management of the prison should protect the public from the concern that criminal offences may be committed by inmates inside the prison or outside it, and from serious infractions of order and security inside it. Sometimes, restrictions need to be imposed on inmates for general considerations of state security (HCJ 2245/06 Dobrin v. Israel Prison Service [39]). The exercise of sovereign coercive authority for achieving these purposes adds to the infringement upon the inmate’s core human rights that is a necessary consequence of his imprisonment. It depends on the existence of public purposes of special weight that justify an additional violation of inmates’ rights that are required by the management of the prison. The exercise of coercive authority for this purpose should satisfy the tests of the limitations clause in the Basic Law. The more significant the human right involved, the stronger the reasons that are required for violating it. The measures adopted against a prison inmate to maintain order and security in their broad sense should not become an additional element of the sentence that was imposed on him. Their purpose is to achieve essential public goals that are required by the proper management of a prison (PPA 4463/94 Golan v. Prisons Service [11]; HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [33], at p. 81). The exercise of coercive authority in managing the prison is subject to the doctrine of balances that applies to the exercise of sovereign coercive authority throughout the criminal proceeding at all its stages. The guiding principle in this doctrine is intended to give maximum protection to the rights of the prison inmate so that they are not violated to a greater extent than what is essential for achieving the proper public purpose.

25. Thus, the exercise of sovereign coercive authority in the management of a prison, which involves violations of the core rights of the inmates — beyond the violation caused by the imprisonment per se — is subject to the doctrine of balances that characterizes the exercise of power at all stages of the criminal proceeding. The legality of the exercise of coercive authority in managing the prison, which is intended to secure a public interest, is dependent upon maximum insistence on the rights of the inmate, so they are not violated to a greater extent than what is required in order to achieve the proper purpose. The complex balance between the protected rights of the inmate and the needs of the prison system is the responsibility of the public authority, which is responsible for enforcing the sentence. The permitted violation of the human rights that an inmate retains while in prison depends upon the existence of a clear public purpose justifying the violation and the proportionality thereof (Dobrin v. Israel Prison Service [39], at para. 23). The responsibility for such a violation of the core human rights of the inmate is a weighty one, and it requires full awareness and recognition of the criteria required for permitting such a violation, the existence of administrative, ethical and judicial scrutiny of its propriety, and especially the absence of improper considerations that may taint the proper discretion of the authority, which should be exercised when considering whether to carry out the action that causes the violation.

26. The protection of the core human rights that an inmate retains in the prison is not consistent with the transfer of the power to exercise sovereign coercive authority to a private enterprise that will be responsible for managing the prison. Such a transfer is inconsistent with the competent authority being aware and internalizing the need for restraint and limits in the exercise of power in light of the balance required by the protection of human rights. The private enterprise is not subject to the complex rules of checks and deterrents that are included in the rules of conduct that govern the civil service. Sovereign supervision of the acts of the private concessionaire, which amendment 28 of the Ordinance regulated, is an umbrella supervision that does not guarantee sufficiently effective control of the manner of exercising the discretion and the motives involved therein. In many cases, the supervision is carried out after the event and is incapable of preventing from the outset the harm to the inmates that is likely to result from the adoption of administrative, disciplinary and punitive measures that are disproportionate. In addition to all this, the private concessionaire is motivated by extrinsic considerations of profit, which naturally taint the objective discretion that should be exercised for the purpose of using force in accordance with the doctrine of balances. The management of a prison by a private concessionaire, which involves exercising coercive authority over inmates, is likely to be motivated by inappropriate considerations, including considerations of economic viability and profit, which were the goals that led it to accept the role. In view of this reality, the degree of the potential violation of the inmates’ rights is significant, of great weight and persistent. It is directed at a particularly weak sector of the population, whose members in any case have been deprived of some of their human rights as a result of their conviction and the custodial sentence imposed upon them. The danger that irrelevant considerations will guide the private enterprise in carrying out its duties and in exercising coercive authority over the inmates is immediate and real. The considerations of increasing economic efficiency and the profits of the private enterprise may lead, for example, to a reduction in the staff that operates the prison, a lowering of standards in order to reduce costs, and consequently to harsher methods of supervising the inmates, which could potentially involve a reduction in the measure of movement and freedom given to them within the prison compound. The violation of the remaining liberty of the inmates, beyond the essential violation caused by the sentence of imprisonment as such, is a distinct possibility, that if realized would materially and seriously violate a constitutional basic right (Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ supra, at p. 25).

27. Moreover, the exercise of sovereign coercive authority over prison inmates by a private concessionaire does not enjoy a wide social consensus and public confidence as the nature of the power requires. It does not guarantee that the umbrella of human rights, which extends over every human being as such, including an offender in prison, will be upheld and protected, and that any violation thereof will always be conditional upon the reservations required by the constitutional system (Dobrin v. Israel Prison Service [39], at para. 23; HCJ 355/79 Katlan v. Israel Prison Service [20]). The exercise of sovereign coercive authority by a private enterprise in the context before us contradicts our basic sense of justice, which tells us that the exercise of coercive authority over prison inmates, whose core human rights have in any case been violated, should be done by the state, which is familiar with the requirements of the restraint of power, and which has full administrative, legal and moral responsibility for exercising this power. This was well defined by Prof. Harel in the aforementioned article, where he said:

‘The most fundamental task of the state is the task of governing justly. Just governance requires the state to govern its citizens under constraints dictated by justice. Just governance presupposes the guidance of behaviour and the issuing of prohibitions. Note that the integrationist justification provided here is premised on the assumption that the state is justified in issuing prohibitions and that the violations of these prohibitions justifiably trigger the infliction of sanctions. The integrationist justification aims to show that when these conditions are satisfied, the state, and the state alone, ought to make determinations concerning the severity of these sanctions, and then inflict them. The state cannot thus delegate these powers to private entities’ (Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ supra, at p. 18).

28. The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment and exercising coercive force over him in prison depend upon the exercise of coercive authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Failing to comply with this condition undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional coercive authority over the individual offender (J.J. Dilulio Jr., ‘What’s Wrong with Private Prisons,’ 92 Pub. Int. 66 (1988), at pp. 79-83).

The purpose underlying amendment 28 of the Prisons Ordinance

29. Investigating the purpose of amendment 28 of the Ordinance is essential for the value-balancing endeavour needed to assess the constitutionality of the legislative arrangement that transfers the management of a prison to a private concessionaire.

The president in her judgment emphasized the economic purpose — of realizing an economic saving for the state by transferring the management of the prison to a private enterprise — that underlies the amendment of the Ordinance as the one that reflects the main concrete purpose of this legislation. According to her, if improving prison conditions is the general purpose underlying the amendment, the economic purpose of saving money is the specific purpose of the legislation. This is what she says in this regard:

‘The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state’ (at para. 52).

In my opinion, the crux of the basic purpose of amendment 28 is somewhat different, and even though it does contain an element of economic efficiency, that is not the main motif but only a secondary one. Identifying the purpose of the law and its emphases is of great importance for its ramifications on the balancing of values required for examining the constitutionality of the law.

30. As I understand it, the main purpose of the amendment to the Ordinance, as can be seen from its legislative background and its context, is to promote the welfare of the prison inmate by reducing the serious overcrowding that currently exists in the prisons, improving the services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. These purposes might have been realized by privatizing the management of the prison, which would allow the state to save large amounts of money over the period of the concession, which is twenty-five years.

31. The prison system has always struggled with the obligation to uphold the right of the prison inmate to basic living conditions as a part of the protection of his dignity as a human being, even when he is imprisoned for an offence that he committed against society. Guaranteeing basic living conditions for the prison inmate, as a part of his human dignity, also requires a proper balance between the inmate’s human right to minimum living standards and the state’s obligation, with its available resources, to budget for these standards (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10]).

32. The phenomenon of major overcrowding in Israeli prisons seriously violates the movement and breathing space of the inmate in the prison compound. Over the years, the state has struggled with a situation in which even the basic right of every inmate in Israel to sleep in a bed during his prison term has not been fully respected. The significant increase in the number of prison inmates and persons held under arrest in Israel, the serious long-term security problems that result in an increase in the number of security prisoners and detainees, the rise in serious crimes and the escalating number of foreign workers and illegal aliens held under arrest until they are deported have all significantly increased the need for the resources and means required to maintain prison facilities to the required standards. These basic needs ‘consume’ the resources allocated in the state budget for managing prisons and detention facilities, and it is hard to find the additional resources needed to improve the welfare of prison inmates.

33. This court has held that the Basic Law: Human Dignity and Liberty enshrined the right to human dignity as a constitutional right and that this also includes the right to basic living standards that are intended to preserve the image in which humanity was created (LCA 4905/98 Gamzu v. Yeshayahu [40], at pp. 375-376; HCJ 5578/02 Manor v. Minister of Finance [25], at p. 736; HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at paras. 14-15; Physicians for Human Rights v. Minister of Public Security [10], at para. 9). This approach has also been applied to the constitutional human rights of inmates in state prisons. It has been held that —

‘A sentence of imprisonment imposed on a person does not deprive him of the constitutional human rights given to him by the principles of the constitutional system in Israel. The prison inmate is deprived of these rights only to the extent that the restriction thereof is a necessary consequence of his loss of liberty as a result of the imprisonment, and to the extent that the violation of a protected right satisfies the elements of the limitations clause in the Basic Law’ (Physicians for Human Rights v. Minister of Public Security [10], at para. 10).

When a person enters a prison, he loses his liberty, but he does not lose his dignity (HCJ 7837/04 Borgal v. Israel Prison Service [41], at p. 101). Providing a person’s basic needs, which is an absolute condition for living with dignity, is also necessary for an inmate serving his sentence in prison, and the state is obliged to provide them and allocate the necessary resources for this purpose. If the state has a duty to provide the basic needs of its inhabitants as a part of the right to human dignity, it has an even greater obligation to the persons who are in its custody and under its protection, for whom it is directly and immediately responsible. Protecting the dignity of the prison inmate as a human being goes beyond the interest of the individual inmate. It is the interest of society as a whole, which is responsible for determining the moral and ethical norms that apply within it to its members, including prison inmates, as human beings (Golan v. Prisons Service [11], at p. 156). Thus it has been recognized that every prison inmate has a basic right to sleep on a bed, as a part of the protection of human dignity (Physicians for Human Rights v. Minister of Public Security [10], at p. 14). These basic needs are joined by the needs for food and drink, clean clothes, fresh air, a minimum living space inside the prison and responsible medical treatment. The right of a prison inmate to basic living conditions in prison has therefore been recognized as a protected constitutional right that can be qualified only when there is a conflicting value of special importance and particularly great weight, such as an exceptional emergency that may justify, in certain circumstances, a violation of the protected right. The state is obligated to provide these basic living conditions for inmates in its custody, and it must allocate the necessary budget for this purpose (see, for example, on the subject of realizing the right of every prison inmate to a bed, Physicians for Human Rights v. Minister of Public Security [10]).

34. Beyond the concern for the basic living conditions of prison inmates, which the state is obliged to provide regardless of any budgetary restrictions, there are additional elements of the inmate’s welfare that go beyond the ‘hard core’ of the basic conditions. These elements include matters concerned with reducing the overcrowding in prisons, increasing the physical living space of the inmate in the prison beyond the basic minimum provided in prison regulations, improving treatment and rehabilitation programmes for the inmates, adding cultural enrichment programmes, improving the standard of the food and medical treatment, and additional matters. Providing these conditions, which goes beyond the basic needs that there is an obligation to provide, is of an optional nature, and depends upon the national priorities reflected in the budgets of state institutions. A welfare-state should strive unceasingly to provide these welfare conditions, which go beyond the basic needs, for its prison inmates. Notwithstanding, its ability to do this depends upon the complex picture of all the national needs and on the position of the question of prison conditions on the ladder of social issues for which the state is responsible, according to the relative importance of all the national needs. In the complex reality of social life in Israel, with its many essential needs, giving budgetary preference to improving the welfare of the prison inmate beyond the basic standards required by law is not assured.

35. As I understand it, amendment 28 of the Ordinance was mainly intended to promote the welfare of the prison inmate beyond the basic conditions that the state is obliged to provide without any qualification to prison inmates, in circumstances where the allocation of budgetary resources for this purpose in the normal budgetary track is not guaranteed. The amendment to the Ordinance was intended to allow the welfare of the inmate to be advanced beyond the basic conditions that are provided for him and to which he is entitled, with an attendant significant financial saving to the state — an objective that is not guaranteed by means of ordinary budgetary measures. Indeed, the explanatory notes to the draft amendment to the Ordinance begin with the following remarks:

‘The proposed arrangement is needed because of the crisis in Israeli prisons and the direct repercussions that it has on the conditions in which prison inmates and persons under arrest are held, as required by the provisions of the Basic Law: Human Dignity and Liberty, and by the provisions of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996’ (explanatory notes to the Draft Prisons Ordinance Amendment (Privately Managed Prison) Law (no. 26), 5764-2003 (Government Draft Laws 73, 5764, at p. 270).

36. In enacting amendment 28 of the Ordinance, the state’s main goal was to reduce overcrowding in the prisons and to improve significantly the living conditions of the inmates beyond the essential minimum. The state gives details in its reply of 24 October 2005 and in later replies, inter alia, that the living space of prison inmates in Israel is currently between two and four and a half square metres per person, as compared with a space of between six and ten square metres that is accepted around the world; that some of the existing prison facilities are very old and do not provide proper living conditions; and that a constant increase in the number of prison inmates each year exacerbates the existing crisis in prison conditions. According to the state, the privatized prison will significantly advance the welfare of inmates from the viewpoint of improving the inmate’s living space, as well as in the fields of rehabilitation and treatment for inmates and the standard of the physical services that are provided in the prison. The average living space per inmate will increase significantly, as will the number of social workers; a major increase in the number of hours of education that inmates receive will also be possible. In addition to these improvements, the state will make a considerable financial saving (the state’s supplementary response of 16 February 2006, at paras. 15-19).

37. In its response of 29 August 2006, the concessionaire also emphasized all of the planned improvements for inmates (para. 98 of the response). These include more formal education, an increase in the scope of the employment of inmates in various jobs, an increase in the financial remuneration for the work, an increase in the physical living space far beyond the essential minimum, an improvement in the food, an increase in the number of family visiting days, an increase in the educational staff, an improvement in medical treatment, an increase in the hours of activity for the inmates and additional improvements. According to the concessionaire:

‘In practice, a careful examination… shows precisely to what extent the considerable thought that was devoted by the state and its representatives to drawing up the transaction with the concessionaire provides comprehensive and thorough solutions that allay the concerns raised by the additional petitioner in a manner that ensures that not only will the privately managed prison not harm the welfare of the inmates in comparison to a prison managed by the Israel Prison Service but to a large extent the opposite is the case: in the privately managed prison the conditions of the inmates are expected to be better than in the other prisons in Israel (supplementary main arguments of 31 December 2007).

38. The possibility of overcoming the problem of serious overcrowding in prison facilities, of improving the welfare of the inmates beyond the minimum conditions that need to be provided at all times and in all situations, while increasing efficiency and making a financial saving for the state, are to my mind the main purposes of amendment 28 of the Ordinance. It should be added that the amendment speaks at this stage of setting up one prison as an experiment, but the long-term planning is that if the experiment is successful, it will be expanded and this may affect a large population of prison inmates, inter alia by significantly improving both the physical and the therapeutic and psychological conditions in which they are held in custody in Israel.

 The constitutional balance — the relationship between the harm caused to the prison inmate by privatizing the exercise of sovereign power and the expected improvement in prison living conditions

39. The privatization of the management of the prison in amendment 28 gives rise to a constitutional question of great significance. This question in essence is whether the potential violation of the prison inmate’s core basic rights that is caused by privatizing the sovereign coercive authority of managing a prison satisfies the constitutional test of proportionality, in view, inter alia, of the purpose of the amendment to the law which was intended to improve the welfare of the inmate beyond the minimum conditions guaranteed to him and at the same time to make a financial saving for the state. The potential violation of the inmate’s core basic rights, which is expected to occur as a result of the privatization of the sovereign power, conflicts with the potential benefit to the inmate deriving from the improvement in his welfare and his living conditions, together with an economic benefit to the public. What is the result of the balance between these values, and which of them takes precedence? In this conflict, is the harm to the prison inmate so great that it justifies setting aside a law of the Knesset despite the benefit to the inmate’s welfare that it bestows?

40. Constitutional law embodies the basic values and principles of the legal system. These values and principles require decisions that involve conflicting interests, values and rights. Often the conflict is between types of interests, values and basic rights that are all of the highest importance (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [42], at p. 880 {100}). The conflict is resolved by striking a balance between the competing values, where each of the competing factors has its own importance and relative weight. The decision is made on the basis of the relative weight of the conflicting values.

‘It is only natural that there are more important principles and less important principles; … the basic difficulty involved in constitutional thinking is how to ensure objective normative criteria… for deciding between the conflicting principles… The balance and weighing need to reflect the social consensus rather than the subjective outlooks of the constitutional jurist… The judge should reflect the basic values of a nation, as reflected in its national way of life… The Israeli jurist formulates the basic principles and their relative weight against a background of the spiritual, cultural and social mores of modern Israeli society. These mores are naturally influenced by our ancient heritage, but they reflect the social consensus of the present. However, objective criteria that provide a solution to every constitutional problem do not exist. Where objective guidelines cease, the constitutional jurist is left “on his own,” and “his moment of truth” arrives. From this moment, the only guiding star that lights up his path is the constitutional principle of justice; the jurist should aspire to the solution that seems to him most just’ (A. Barak, Legal Interpretation: Constitutional Interpretation (vol. 3, 1994), at pp. 71-72).

41. The constitutional purpose is built on the values and principles that the constitutional norm is intended to realize. Sometimes these values lead in the same direction; sometimes they conflict with one another. In cases where there is a conflict, a balance needs to be struck between them in accordance with their relative weight. The balancing formula reflects the relative weight of each value. There is no single balancing formula, but a wide variety of balancing formulae that adapt themselves to the wide variety of possible situations that occur in life and the innumerable conflicts that may arise (HCJ 153/83 Levy v. Southern District Commissioner of Police [43], at p. 401 {117}).

42. In our case, the constitutional balancing formula between the conflicting values is especially complex. On one side of the equation there is the potential harm to the core human rights of the prison inmate, and especially his rights to liberty and dignity, which is inherent in the privatization of the sovereign coercive authority in the management of a prison and its transfer from an organ of state to a private enterprise. The potential harm to the individual inherent in privatizing the sovereign coercive authority in managing a prison is very considerable for the reasons that I have discussed above. It undermines and erodes the guarantees inherent in the foundations of the legal system for protecting the limits and constraints of power, which apply to the state when it exercises its sovereign power. Any undermining of these guarantees, which may result in a significant violation of the core human rights of the prison inmate, is of particularly great weight.

43. On the other side of the balancing equation, there is the main value of the amendment to the law, which is intended to promote the welfare of the prison inmate and improve his prison conditions in various fields of life, while enhancing economic efficiency for the state. This purpose is of great weight in itself, since it is intended first and foremost to promote the welfare of individuals who are already in difficult circumstances. It contributes to the protection of his dignity and welfare. Expanding treatment and rehabilitation programmes may also lead to the inmate being released early, thereby influencing his liberty and the other basic rights derived from the right to liberty.

44. The potential harm involved in the privatization of sovereign coercive authority, which is likely to violate the liberty and dignity of the prison inmate, is countered by the purpose of the privatization, which has an aspect of improving his living conditions in the prison. The improvement in such conditions has a direct effect on the realization of the inmate’s basic rights. How can this conflict be resolved, when at its heart there are forces, on the one hand, that violate the inmate’s rights and there are forces, on the other hand, that benefit him and promote his rights?

45. The dilemma in this balancing equation is particularly complex. It is not similar to the typical dilemma in which a right of one individual conflicts with the right of another individual or with a general public interest. In the equation in this case, there are conflicting interests and opposing forces that concern the same individual, the prison inmate. One seeks to eliminate the potential harm inherent in the privatization of sovereign coercive authority exercised against him in the prison, and the other seeks to uphold the law, despite the aforesaid harm, in order to enhance his welfare and improve prison conditions in the long term. We are confronted with a clash between conflicting forces that work on the prison inmate as an individual, where one seeks to prevent a violation of his basic rights resulting from a privatization of the force exercised against him, while the other seeks to contribute to his physical and emotional welfare that cannot be realized, at least at the moment, in any other way. The general public interest, which is reflected in the financial saving and greater economic efficiency that establishing the private prison will give the state, complements the factor of enhancing the welfare and improving the quality of life of the inmate in the privatized prison.

46. According to the president’s approach in her opinion, with which I agree, the main problem in the process of balancing the conflicting values, which is required in order to examine the constitutionality of amendment 28, lies in the third subtest of proportionality, within the meaning thereof in the limitations clause in the Basic Law. The third subtest focuses on the nature of the violation of a human right that is caused in order to achieve a proper purpose, and it recognizes that the realization of the purpose does not justify every means that has a rational connection to the purpose and minimizes the harm. ‘This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the opinion of President Barak). The third subtest of proportionality is ethical in nature. It is intended to resolve the conflict between the various relevant factors in a manner that properly reflects the social and moral values enshrined in the social consensus, on which the democratic regime in Israel is based.

47. In our case, the question in its ethical context is what is the proper proportional balance between the improvement in living conditions for the prison inmate, together with the advancement of the economic interest of increased efficiency and a financial saving for the state, and the potential harm to the core rights of the inmate that is inherent in the privatization of sovereign coercive authority under the amendment to the Ordinance. Striking the proportional balance between the violation of the rights of the inmate caused by the privatization of the exercise of coercive authority against him and between the benefit that will arise in the future to the welfare of the inmate and the public in general from establishing a private prison is not easy. We need to decide which has greater weight: the expected harm to the prison inmate from the privatization of the coercive authority exercised against him, or the importance of improving the living conditions of the same inmate in the privatized prison, together with the saving and increased efficiency in the use of public money. It is possible to state the question as follows: does the enhanced welfare of the prison inmate anticipated from the amendment, together with the economic benefit to the state, diminish the potential harm to the inmate as a result of the privatization of the exercise of coercive authority to such an extent that it makes this harm constitutional in accordance with the test of proportionality in the narrow sense in the limitations clause?

48. The need to strike a balance between the constitutional violation of core human rights and the benefit to the very same person within the context of the same act of legislation that is subject to constitutional scrutiny does not arise often. It requires a comparison between ‘good’ and ‘evil’ that affect the same person, largely with respect to the same human rights. This is an atypical balancing equation that requires scrutiny in the special circumstances of this case.

49. In my opinion, in this balance, which is essentially an ethical one, the benefit to the welfare of the prison inmate, accompanied by a public economic interest, that will arise from the amendment to the law does not mitigate the potential harm to the inmate that will arise from the privatization of the sovereign coercive authority to such an extent that the harm becomes constitutional according to the test of proportionality in the narrow sense. The benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign coercive authority to a private concessionaire.

50. The potential harm to the individual that is inherent in the privatization of sovereign coercive authority in the criminal proceeding is great, and it goes to the very heart of the social order that gives the state the legal and moral force to exercise sovereign authority over the citizen, while restraining and limiting this power to the absolute minimum, in order to protect core human rights. The ethical, moral and legal structure of the system of government in Israel is inconsistent with the transfer of sovereign coercive authority involved in the management of a prison to a private enterprise, which may seriously harm the individual, even when it is accompanied by the positive and important purpose of improving the physical living conditions of the prison inmate and also by increased efficiency and a saving of public money. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state. It should also be recalled in this respect that improving prison conditions, which is a part of the amendment to the law, does not concern the basic prison conditions that are in any case assured by the existing legal position, but conditions that go beyond the absolute minimum. Achieving an improvement in prison conditions, although important, cannot outweigh the potential violation of the core rights of prison inmates, which is inherent in giving power to the private concessionaire to exercise sovereign authority over individuals under its control. In a democratic constitutional state, the price of enhancing the welfare of a person should not be paid in a manner that causes a possible violation of his core human rights. Such a price should not be paid, and does not satisfy the constitutional test.

51. The potential harm that is inherent in the privatization of sovereign authority is integral to it and of such a degree that it does not allow for a process of experimentation and arriving at conclusions in consequence thereof. We should seek to improve the welfare of the prison inmate, but not at the price of allowing injurious measures to be carried out against him and allowing his core rights to be violated, as the legislation that is under scrutiny in this proceeding entails.

52. The exercise of coercive authority in the criminal proceeding, in so far as it violates the core human rights of the individual, should remain in the hands of the sovereign authority, which is answerable to the public and to the foundations of the constitutional system for restraining and limiting it. This applies to police power, it applies to judicial power and it also applies to the power to manage prisons and to exercise coercive authority over prison inmates.

53. The privatization of public services by transferring the responsibility to provide them to private enterprises has been effected in recent years in several fields (D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008), at pp. 472-473; A. Benish, ‘Outsourcing from the Perspective of Public Law,’ 38(2) Hebrew Univ. L. Rev. (Mishpatim) 283 (2008)). The fields that have been privatized include, inter alia, the enforcement of civil judgments, private security guards and security companies, tax collection, etc.. The problems that arise with regard to the privatization of the management of a prison are completely different from those that arise in the other fields of privatization from the viewpoint of the scope of the exercise of sovereign coercive authority over the individual that they necessitate, and from the viewpoint of the extent of their potential violation of fundamental constitutional rights.

54. The privatization of the exercise of sovereign coercive authority in the management of a prison by transferring it to a private concessionaire should therefore be set aside, since it does not satisfy the test of proportionality in the narrow sense under the limitations clause.

55. It need not be said that there is nothing that prevents a privatization of all of the operations and services that are a part of managing a prison and that do not involve the exercise of sovereign coercive authority over prison inmates.

56. I agree with the president’s position that the amendment to the Ordinance should be set aside in its entirety because it is difficult to apply a “blue pencil” to it and distinguish between its various terms that are all part of one whole. As stated, this does not preclude the privatization of those fields of management and services in the prison that do not involve the exercise of sovereign coercive authority, in so far as the competent authorities decide that this is proper.

For the aforesaid reasons, I agree with the president’s conclusions that amendment 28 of the Prisons Ordinance should be set aside.

 

 

Justice E. Hayut

I agree with the opinion of my colleague the President, and with her conclusion that the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: Amendment 28), according to which powers to imprison inmates were transferred to a private concessionaire (as well as a long list of invasive powers inherent therein)  should be struck down. This is due to the unconstitutional violation of the inmates' human rights to personal liberty and dignity that results from the establishment of a prison managed by a private corporation in which the inmates are subject to the authority of its employees.

1.    ,The President discussed In her opinion how, according to the basic views of modern political thinking, the state is responsible to enforce criminal law and to preserve public order by virtue of the Social Contract whereunder humans have organized themselves as a society. The President goes on to say that this state function holds an invasive power to deprive offenders of their liberty and that the transfer of this basic and invasive power to a private corporation operating for profit, is contrary to the Social Contract that originally gave these powers to the state, since as a result of that transfer ‘the exercise of that power loses a significant part of its legitimacy’ and the constitutional right of prison inmates to personal liberty is violated (para. 22 of the President’s opinion), to a greater degree that the actual imprisonment requires (para. 33 of the President’s opinion). The President also discusses in her opinion additional aspects of the violation of the constitutional rights of prison inmates, and she mentions in this regard the violation of their dignity as human beings resulting from their imprisonment in a privately managed prison; she says that this model creates a situation in which the manifestly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that derive from the private corporation's desire to make a financial profit. Thereby, in her opinion, the prison inmates become ‘a means whereby the corporation that manages and operates the prison makes a financial profit’ and therefore her conclusion is that ‘the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings’ (para. 36 of the President’s opinion). I agree with the President in this reasoning and her conclusion that these violations of the personal liberty and dignity of the prison inmates do not satisfy the tests of the limitations clause in the Basic Law: Human Dignity and Liberty, in which these basic rights are enshrined, because of the lack of proper proportionality between the social benefit that Amendment 28 provides and the human rights violation that it causes.

2.    In addition to the examination of the constitutionality of Amendment 28 from the perspective of the prison inmates' rights to personal liberty and dignity, I am of the opinion that it is also possible to discuss the difficulties that this amendment presents from the perspective of the general public, as a law that conflicts with the basic principles of the system of government and the legal system in Israel. Much has been written about the Social Contract on the basis of which human beings have organized themselves into states. Since the ‘Social Contract’ is a fiction that was invented by the fathers of modern political thought, there is a wide range of different views with regard to the nature and content of this contract (see M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (seventh edition, 2001), at pp. 111-118; W. Friedmann, Legal Theory (fifth edition, 1967), at pp. 117-127; C. Klein, ‘On the Social Contract Before the High Court of Justice,’ 5 College of Management Academic Studies L. Rev. (HaMishpat) 189 (2000)). Generally the state is regarded as having taken upon itself the role of protecting the safety, security and property of its citizens after they waived their natural rights to protect these interests and to punish anyone who harms them. For the purpose of realizing the role that is designated for it as aforesaid, the government is given powers and authorities that involve a violation of liberty. One of the core sovereign powers given to the state in order to enforce the law and protect the security of its citizens and the public order is the power to imprison anyone who has been found guilty in a trial and who has been given a custodial sentence, together with all the invasive ancillary powers that go with it. Indeed, the imprisonment of someone who has been convicted in a criminal proceeding is the last link in the sequence of actions that comprise the criminal proceeding for which the state has responsibility throughout. This link, which concerns the realization and enforcement of the sentence, is admittedly the last stage in the aforesaid sequence of actions that comprise the criminal proceeding, but it is by no means the least important. On the contrary, to a large extent it is capable of being an indication of the effectiveness of the whole criminal proceeding. In view of the importance of the powers of imprisonment as a major link in the sequence of actions that are required to enforce the law and according to the view that the Social Contract creates a relationship of trust between the government as trustee and the citizens as beneficiaries, the divestment by the state of its powers of imprisonment that it was given by the Social Contract violates the terms of that contract and the fundamental principles on which the whole system of government is based and on which law-abiding citizens and victims of crimes rely, since, as we have said, in the Social Contract they waived the right that they themselves may bring offenders to justice (for another outlook, which some regard as a basis for a totalitarian system of government and which holds that the Social Contract can be undermined only by the individual and not by the sovereign, see Klein, ‘On the Social Contract Before the High Court of Justice,’ supra, at p. 199).

3.    I concur with the President that it is difficult to locate a constitutional basis in s. 1 of the Basic Law: the Government for determining that the power of imprisonment is a core government power that cannot be transferred to private hands. Therefore, the question is whether the transfer of this power to a private enterprise — with all that this means from the viewpoint of the public in general – violates the basic principles of the system of government in a way that makes it is possible to strike down Amendment 28 even though these principles are not enshrined in the Basic Laws. Such a constitutional move raises problems that this court has addressed in its decisions over the years (see HCJ 142/89 Laor Movement v. Knesset Speaker [44], at p. 551; HCJ 410/90 Bloom v. Knesset Speaker [45], at p. 205; HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [46], at pp. 801-802; see also A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol. 1, sixth edition, 2005), at pp. 61-62, 67-69; Y. Dotan, ‘A Constitution for the State of Israel? Constitutional Dialogue after the “Constitutional Revolution”,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 149 (1997), at pp. 177-179). It can be said that the approach  of  this court in this regard is that the examination of questions of the constitutionality of a law on the basis of fundamental principles ‘that are not enshrined in a Basic Law’ is possible, if at all, only in very exceptional and extreme cases, when the law undermines the foundations of the system of government on which the whole constitution is based. President Barak discussed the great caution that should be adopted in this regard in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], where he said:

‘We should do all we can to decide questions of the constitutionality of a law that conflicts with basic values within the context of a decision regarding the constitutionality of the law in relation to a Basic Law. Israel is currently in the middle of a constitutional process that is being carried out through Basic Laws. Every interpretive effort should be made to decide the question of the constitutionality of the law within the framework of the arrangements provided in the Basic Laws’ (ibid. [19], at para. 73 of the opinion of President Barak).

And President Barak goes on to say there that even if there is a narrow margin that allows the constitutionality of a law to be examined outside the framework of the Basic Laws, this will happen only in special and extraordinary cases where the law in question undermines ‘the essence of democracy and negates the most basic characteristics required for a democratic system of government,’ such as ‘a law or Basic Law that denies the character of the State of Israel as a Jewish and democratic state’ (ibid. [19], at para. 74; see also HCJ 4676/94 Meatreal Ltd v. Knesset [47], at p. 28; A. Barak, The Judge in a Democracy (2004, Hebrew edition), at p. 99). Thus, even according to the approach that it is not impossible for this court, in an appropriate case, to strike down a law that violates fundamental principles of the system that are not enshrined in the Basic Laws, this will only happen in very exceptional cases, when the law in question shakes the basic foundations of the whole constitutional and democratic system and threatens to destroy it.

4.    The phenomenon of privatization that is becoming more wide-spread in Israel has many aspects (see D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005)). But not everything can be privatized and no one would appear to dispute that certain powers and authorities that are given to government agencies may not be privatized, even by the legislative branch (see Barak-Erez, op. cit., at pp. 493-496; Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 329-330). As stated above, the divestment by the state of the powers of imprisonment given to it as the sovereign authority and as the body responsible for public safety and security and for maintaining public order, and the transfer of those powers to a private profit-making corporation, violate the basic principles of the system of government in Israel. Notwithstanding, it cannot be said that the statutory arrangement in Amendment 28 threatens to shake the foundations on which the whole constitution is based, especially since the model of privatization adopted in that amendment requires the state to closely supervise the private concessionaire's activities (see ss. 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). It can therefore be said that in Amendment 28 the state admittedly divested itself of its powers of imprisonment and transferred them to private hands, but it should not be regarded as having entirely abandoned and shirked its responsibility for carrying out these actions, at least as a supervisory body.

To sum up, I agree with the President’s opinion that Amendment 28 should be struck down as it is disproportionately violates the human rights of prison inmates to personal liberty and dignity.

 

 

Justice S. Joubran

I agree with the comprehensive opinion and reasoning of my colleague the president.

The imprisonment of someone convicted in a criminal trial as the main sanction prescribed by the Penal Law does not constitute merely a marginal aspect of the criminal process, and there are even those who claim it is the main element in the modern penal process. As my colleague the president said, a prison inmate will be deprived of his liberty regardless of whether he is imprisoned in a privately managed prison or not; the walls of the privately managed prison are no higher than those of their state managed counterpart. But the essence of the prison cannot be summarized by the actual loss of liberty; despite its centrality, this characteristic cannot express the manner in which prisons serve as an institution that is sanction – an institution the entrance into and very existence of constitute the response of the state to offences against its laws.

This phenomenon of the prison and the development of its nature as a sanction carried out by the modern state are aptly described by the French philosopher Michel Foucault in his book about the ‘birth’ of prisons. Because of their great relevance to our case, his remarks are worthy of consideration:

‘In several respects, the prison must be an exhaustive disciplinary apparatus: it must assume responsibility for all aspects of the individual. His physical training, his aptitude to work, his everyday conduct, his moral attitude, his state of mind; the prison, much more than the school, the workshop or the army, which always involved a certain specialization, is “omni-disciplinary”... Lastly, it gives almost total power over the prisoners; it has its internal mechanisms of repression and punishment: a despotic discipline. It carries to their greatest intensity all the procedures to be found in the other disciplinary mechanisms. It must be the most powerful machinery for imposing a new form on the perverted individual; its mode of action is the constraint of a total education:

“In prison the government may dispose of the liberty of the person and of the time of the prisoner; from then on, one can imagine the power of the education which, not only in a day, but in a succession of days and even years, may regulate for man the time of waking and sleeping, of activity and rest, the number and duration of meals, the quality and ration of food, the nature and product of labour, the time of prayer, the use of speech and even, so to speak, that of thought, that education which, in the short, simple journeys from refectory to workshop, from workshop to the cell, regulates the movements of the body, and even in moments of rest, determines the use of time, the time-table, this education, which, in short, takes possession of man as a whole, of all the physical and moral faculties that are in him and of the time in which he is himself” (Charles Lucas, De la Réforme des Prisons (1836), at pp. 123-124)’

(Michel Foucault, Discipline & Punish: The Birth of the Prison (trans. Alan Sheridan, 1977), at pp. 235-36).

Indeed, the prison is not merely the walls that separates the inmate from the rest of society. Therefore, if one asks - what difference it makes whether the walls are owned privately or by the state? We should answer that by sending the convicted offender behind the prison walls the state has not ended its role in the sanctioning process, and in many ways the imprisonment is only the beginning and the heart of the process. Even if we say that the loss of liberty alone constitutes the offender’s punishment, it cannot be denied that the entrance into the prisons caries with is myriad effects on the inmate’s life,- whether it is restrictions laid on his way of life and on his body that are required in order to prevent his escapes and protect public safety; determining regulations that are required to maintain public order; or by controlling the inmate’s daily schedule by other arrangements required by  because the prison is a “total” institution that requires the address of every aspect of the lives of its inmates. All these are accompanied by internal sanctioning mechanisms, for the establishment and enforcement of discipline inside the prisons. Even if we do not see in all of these ‘punishment’ in the traditional sense, we cannot disregard the fact that the nature of the prison as a sanctioning institution revolves around these characteristics, when each and every moment in the lives of the inmates is dictated and formed by them. Thus, it is possible to claim that all of these actions carried out against the prison inmate in practice constitute the very heart of the exercise of sovereign force against the individual, far beyond the mere decision to send him behind bars.

It follows that the transfer of the management of a prison to private hands does not merely constitute a privatization of powers that are ancillary or supplementary to the punishment, but the divestment by the state of a central layer in its sovereign authority to punish its citizens. Even if it is possible to accept this decision as a matter of policy, from the perspective of the prison inmates it is an unacceptable step. As stated, all of their lives inside the prison walls, beyond the actual decision to imprison them, are replete with the exercise of sovereign force, which regulates and disciplines their lives and their bodies. The transfer of these powers over the inmates to private hands effectively makes ‘pseudo-subjects’ of the private enterprise. Even though the powers of that enterprise over the inmates do not go down to the very root of punishment in its traditional sense and do not include the actual decision to deprive them of their liberty, and even if the powers given to them to impose disciplinary sanctions are limited in scope (although they should not be treated lightly even within that scope), this does not negate the fact that the private enterprise has overwhelming control over their lives, through the accumulation of all these minute regulations of these lives — from the use of force against the inmates, placing them in isolation, examining their naked bodies, forcing them to give urine samples, confiscating their possessions, searching their bodies, through maintaining order, discipline and security in the prison, ending in making arrangements for the welfare, health, rehabilitation, training and education of the inmates. Giving this control to a private enterprise, which, despite the supervisory restraints retained by the state, is still motivated in its actions by commercial considerations, constitutes a violation of the dignity of the inmates as human beings that cannot be accepted.

Therefore, I agree as aforesaid with the opinion of my colleague the president that amendment 28 of the Prisons Ordinance should be set aside.

 

 

Justice M. Naor

I agree with the finding of my colleague the president that the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’) unconstitutionally violates two constitutional rights that are enshrined in the Basic Law: Human Dignity and Liberty. I agree with her approach that the right to personal liberty (s. 5 of the Basic Law) and the right to human dignity (s. 2 of the Basic Law) of those inmates who are supposed to serve their sentences in the private prison is violated by the ‘actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise’ (para. 18 of the president’s opinion). In view of the importance of the constitutional question that has arisen in this case and the existence of certain differences in approach, I would like to set out my position.

The violation of the constitutional rights enshrined in the Basic Law: Human Dignity and Liberty

The violation of liberty

2.    Even though imprisonment ipso facto violates liberty, when it is implemented by the state, the violation is proportionate (see and cf. CrimA 4424/98 Silgado v. State of Israel [12], at p. 550). The question before us is simply whether the identity of the party that implements the imprisonment (a private profit-making enterprise) is likely to cause an independent violation of the right to liberty that is additional to the violation that arises from the actual imprisonment. My colleague the president answers this question in the positive, and I agree with her position. Imprisonment that is carried out by a private profit-making enterprise causes a separate violation of the right to liberty. This violation may vary in its degree: it may be a minor violation, such as when the private enterprise exercises ‘technical-administrative’ sovereign powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15]), and it may be a serious violation, such as when the private enterprise exercises the main and invasive powers of the state that involve broad discretion.

3.    The doctrine of the delegation of administrative powers allows the state to avail itself of the ‘assistance’ of a private enterprise (Philipovitz v. Registrar of Companies [15], at p. 429; CrimA 4855/02 State of Israel v. Borovitz [37], at p. 833). This doctrine applies mainly in administrative law (see: Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 308-311; D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008)). By analogy to this doctrine, were the concessionaire to exercise merely a ‘technical’ or ‘administrative’ power, it could be said that even if a separate violation of the right to liberty were proved, it would only affect the periphery of the right, or alternatively it would be an insignificant violation. Such a determination would probably justify judicial restraint (for the requirement that a violation is a ‘real’ one, see HCJ 10203/03 National Census Ltd v. Attorney-General [48], at para. 17 of my opinion).

In our case, however, the concessionaire is acting as an extension of the state in order to exercise one of its main and most invasive powers — the power to enforce the criminal law and to maintain public order. We are not speaking merely of a ‘technical’ or ‘administrative’ power. The concessionaire is wielding, on behalf of the state, real sovereign authority that involves the exercise of discretion (on discretion as ‘the most important part of authority,’ see I. Zamir, Administrative Authority (vol. 2, 1996), at p. 546). Inter alia, the concessionaire has been given powers to maintain order and discipline in the prison and to prevent the escape of inmates (as explained in para. 31 of the opinion of my colleague the president). The power given to manage the prison — the exercise of authority, power and discipline — is clearly recognized as one of state sovereignty and requires discretion when exercising it (see and cf. HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [49], at p. 693; see also: A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: the Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008), at p. 117).

Therefore the law does not merely enshrine a ‘policy of privatization’ (see for example HCJ 5167/00 Weiss v. Prime Minister [50], at p. 471, but it changes the distribution of the state’s sovereign powers. I agree with the president that powers that are characterized by the exercise of sovereign authority in order to enforce the criminal law and maintain public order, when they are exercised by a private profit-making enterprise, inflict a separate and real violation of the constitutional right to liberty. Therefore the judicial scrutiny required lies in the field of constitutional law.

4.    My colleague bases her determination regarding a violation of liberty on the approach that the legal system in Israel has a basic principle that the state has a monopoly on the use of organized force, and this basic principle is a part of the constitutional right to personal liberty (para. 26 of her opinion). In my opinion, it is possible to determine that our case involves a violation of the constitutional right to liberty even without resorting to a fundamental principle regarding the system of government. My approach is that in view of the nature of the criminal proceeding and the fact that imprisonment is a part of the criminal trial and criminal law, the transfer of responsibility for it to private hands in itself violates liberty as a constitutional right in Israel.

5.    According to my approach, the distinction between the handing down of a custodial sentence and its de facto implementation is an artificial one; we are speaking of one process of administering criminal justice that involves various levels of discretion (see and cf. P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations” 11 Current Issues in Crim. Just. 153 (1999), at pp. 157, 159, 170). According to my approach, both the sanction (imposing the custodial sentence) and its actual enforcement (in the prison) are a part of the ‘process of administering criminal justice’ and both involve the exercise of discretion. The tasks imposed on the inmates in the prison, as a part of ‘prison management,’ are also an integral part of the sentence imposed on them. This is obvious when dealing with matters of inmate discipline (see and cf. R. Harding, ‘Private Prisons,’ 28 Crime and Justice 265 (2001), at pp. 273-278, which is cited in the ‘Knesset’s Position’ in paras. 244-248). It should be recalled that the law may also affect to some degree the duration of the term of imprisonment (see para. 27 of the opinion of my colleague the president; s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001). Indeed, imprisonment is a part of criminal law and procedure (see and cf. L. Sebba, ‘Human Rights and the Sentencing System,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 183 (1996), at p. 188). Against this background, an opinion has been expressed that the question of privatizing prisons should be considered within the framework of criminal law rather than within the framework of the law concerning privatizations in general:

‘… prison privatization could be reviewed in conjunction with criminal justice policy and not just as part of the question of privatization more generally’ (C.M. Donnelly, Delegation of Governmental Power to Private Parties: A Comparative Perspective (2007), at p. 76.

See also S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L. J. 437 (2005), at pp. 544-545; Donnelly, op. cit., at p. 256.

6.    The constitutional right to personal liberty has been interpreted broadly, and it has been held that imprisoning a person ipso facto violates his constitutional right to liberty (see HCJ 6055/95 Tzemah v. Minister of Defence [5], at p. 261 {656}). When we say that the imposition of the custodial sentence and its actual implementation in the prison are a part of the criminal trial and criminal law, it follows that the manner in which the imprisonment is implemented — including the identity of the party implementing the imprisonment — is also ‘covered’ by the constitutional right to personal liberty. The whole process of criminal justice, including the element of implementing the actual imprisonment, is subject to the constitutional restrictions: ‘Most of the government activity in the field of criminal law — whether legislative, administrative or judicial — is now subject to the Basic Laws. Criminal law and its enforcement need to be constitutional’ (A. Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and its Implications for (Substantive and Procedural) Criminal Law,’ 13 Mehkarei Mishpat (Bar Ilan Law Studies) 5 (1996), at p. 13). As President Barak said, the administration of criminal justice ‘is naturally closely connected to human rights. It protects the right of every human man to dignity, physical integrity and property’ (CrimFH 2316/95 Ganimat v. State of Israel [51], at p. 654; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [52], at p. 81 {512}).

7.    One might ask how it is possible to deduce from the right to ‘liberty’ that the state has a duty to exercise its powers in a certain way, i.e., by itself. The answer to this is twofold.

In the constitutional sphere, the violation of liberty as a constitutional right should satisfy the conditions of the limitations clause. The limitations clause is likely to require the state to exercise its powers in a manner that legitimizes the violation of the constitutional right. The centre of gravity therefore focuses on whether the violation is constitutional within the context of the limitations clause, which has great weight in determining the constitutional balance in the criminal sphere (Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and its Implications for (Substantive and Procedural) Criminal Law,’ supra, at pp. 13-14).

In the administrative sphere, the value of liberty is also likely to require the state to exercise its powers in a certain way. Thus, for example, this court has held that the power of a prison employee in carrying out his duties does not give him the authority to compel the inmates to carry out the work of cleaning the prison cells themselves: ‘We find ourselves here in the area of the liberty of the citizen, and the rule is that in such a case great care should be taken only to deprive him of liberty to the degree and in the manner that are clearly dictated by the law’ (per Justice Agranat in CrimA 40/58 Attorney-General v. Ziad [53], at p. 1364, and therefore ‘it should be concluded, in the absence of any conflicting evidence, that it is practically possible that [the cleaning of the cells] will be done by persons whose job it is and who will be appointed specially for this task’ (Attorney-General v. Ziad [53], at p. 1635). Thus the state was de facto required to carry out the cleaning of the prison cells itself or through another party, but not through the prison inmates themselves (as long as there is no contrary stipulation in legislation).

Moreover, in the theoretical sphere, constitutional interpretation is carried out with a ‘broad perspective’ (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], at para. 24 of the opinion of President Barak). Thus, with regard to the word liberty the court should also give an interpretation that reflects values that are enshrined in the social consensus and in the ethical principles that are shared by society (see the remarks of my colleague the president at para. 53 of her opinion). This is the place to consider the interpretation of the word liberty in greater detail.

8.    Montesquieu says in The Spirit of Laws:

‘Il n’y a point de mot qui ait reçu plus de différentes significations, et qui ait frappé les esprits de tant de manières, que celui de liberté’ (Montesquieu, De L’Esprit des Loix (The Spirit of Laws) (1748), XI, 2).

‘There is no word that has been given more different meanings, and that has influenced the human spirit in more ways, than the word liberty’ (tr. by the editor).

The word liberty has a strong relationship with political philosophy (for a survey, see Harel, ‘Why Only the State may Inflict Criminal Sanctions: the Case Against Privately Inflicted Sanctions,’ supra, at pp. 117-122; see also J.P. Day, Liberty and Justice (1987), at p. 101). Liberty is a central element in humanistic thinking (for the importance of liberty in Rawls’ theory of justice, see J. Rawls, A Theory of Justice (1971), at pp. 201-205; J. Rawls, Political Liberalism (1993), at p. 181; see also Y. Dahan, ‘On Democracy of Property Owners and Liberal Socialism: Economy and Welfare in Rawls’ Theory of Justice,’ in The Philosophy of John Rawls (D. Hyed and D. Attas eds., 2007) 126). Liberty is a central element in every definition of democracy (for the influence of various definitions of democracy and liberty on the legitimacy of privatizing prisons, see in detail Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 84-96).

We can use this theoretical basis to interpret the right to ‘liberty.’ It should be remembered that the question is not how ‘liberty’ is understood in the political philosophy of one person or in the moral beliefs of another. The question is how the right to ‘liberty’ is conceived as one of the values of the State of Israel (see and cf. A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 318). The court is supposed ‘to reflect the outlooks of society… [and to give] expression to the values of the constitution as they are understood by the culture and tradition of the people, as it moves across the face of history’ (per President Barak in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 425). These are values that reflect ‘deeply held beliefs of modern society’ (ibid. [8], at p. 424; see also R. Dworkin, Taking Rights Seriously (1977), at pp. 116-117; cf. also the outlook of John Rawls regarding the overlapping consensus (Rawls, Political Liberalism, supra, at pp. 144-150), and the moral role of the Supreme Court in determining constitutional values (Rawls, op. cit., at pp. 227-240).

9.    My colleague the president cited in her opinion the remarks of two of the classical political philosophers of the seventeenth century, Thomas Hobbes and John Locke. This classical approach that is reflected in her opinion is still valid today. A clear expression of the approach accepted in the modern state, according to which it is part of the responsibility of the state to ensure public order and enforce the criminal law within its territory by itself, appears in the writings of Max Weber on sovereign authority:

‘Today the relation between the state and violence is an especially intimate one… a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’ (Max Weber, ‘Politics as a Vocation,’ in H.H. Gerth and C. Wright Mills (eds.), From Max Weber: Articles in Sociology 77 (1946), at p. 78).

It would appear that even those who espouse the ‘night watchman state’ philosophy, in which the role of the state is limited solely to protecting the lives and property of citizens, recognize the duty of the state to enforce public order:

‘In the nineteenth century, the philosophy of the laissez faire state was widespread. According to this approach, the state has a very limited role, mainly in the field of security… It is obliged to maintain an army, a police force, courts and prisons… It is not supposed to involve itself in other fields of social and economic life beyond what is essential for maintaining public order’ (Zamir, Administrative Authority (vol. 1), at p. 31).

Even those who espouse capitalism as a necessary condition for freedom (M. Friedman, Capitalism and Freedom (1962)) are of the opinion that the state has two ‘clear and self-evident’ duties:

‘[the first duty is] the protection of individuals in the society from coercion whether it comes from outside or from their fellow citizens. Unless there is such protection, we are not really free to choose… [the] second duty goes beyond the narrow police function of protecting people from physical coercion; it includes “an exact administration of justice”’ (Milton and Rose Friedman, Free to Choose (1980), at p. 29).

Milton and Rose Friedman base themselves in their book on Adam Smith, the author of the ‘invisible hand’ theory, who defined the basic role of the state as follows:

‘According to the system of natural liberty, the sovereign has only three duties to attend to; … first, the duty of protecting the society from the violence and invasion of other independent societies; secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice; and, thirdly, the duty of erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society (Adam Smith, Wealth of Nations (1776, Book IV, Chap. IX)’ (Friedman and Friedman, Free to Choose, at pp. 28-29).

It would appear that on this basis it can be said that an accepted approach is that ‘by virtue of the basic principles of liberal democracy, certain products need to be included in the public sphere in such a way that privatizing them is not legitimate’ (Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 329-330; see also B. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ in Zamir Book on Law, Government and Society (Y. Dotan and A. Bendor eds., 2005) 583, at pp. 588, 654-655, 660), where he discusses the role of the state in ‘protecting the public and maintaining public order’; also cf. E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at pp. 92-93, and the references cited there).

10. In my opinion, on the basis of the classical political philosophers that were discussed by my colleague the president in her opinion, and on the basis of the aforesaid and the values of the State of Israel as a Jewish and democratic state, it is possible to interpret the word liberty in the Basic Law: Human Dignity and Liberty as having two aspects: a ‘negative’ aspect (‘The freedom that is guaranteed to every human being by the law, i.e., to conduct himself and act, think and speak however he wishes, unless the law imposes on him a duty to act in a certain way, is what we have called the “supremacy of the law”’ — see H.H. Cohn, The Law (1996), at p. 138; also see Day, Liberty and Justice, supra, at p. 103); and a ‘positive’ aspect, that may require the state, in certain circumstances and in a narrow range of basic roles, to exercise its powers itself. This was discussed by Isaiah Berlin:

‘The first of these political senses of… liberty…, which… I shall call the “negative” sense, is involved in the answer to the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?” The second, which I shall call the “positive” sense, is involved in the answer to the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”’(Isaiah Berlin, ‘Two Concepts of Liberty’ (1958), in Isaiah Berlin, Four Essays on Liberty (Oxford, 1969)).

This approach also finds expression in the context before us. Thus, for example, the ‘Right to liberty and security’ in art. 5 of the European Convention for the Protection of Fundamental Rights and Freedoms, which has also been adopted in the United Kingdom in the Human Rights Act 1998, has been interpreted as having a ‘positive’ aspect that in certain circumstances prevents imprisonment by private enterprises:

‘… the positive obligations recognized under Article 5 have been relatively limited. It has been accepted that Article 5 imposes an obligation to protect vulnerable individuals from deprivation of liberty by private actors’ (J. Wadham, H. Mountfield, C. Gallagher, E. Prochaska, Blackstone’s Guide to The Human Rights Act 1998 (fifth edition, 2009), at p. 168).

(For further discussion of the various meanings of liberty, see in general P. Pettit, ‘Law, Liberty and Reason,’ in Reasonableness and Law (G. Bongiovanni, G. Sartor, C. Valentini eds., 2009) 109).

11. One might ask whether the aforesaid interpretation of the word liberty overly limits the power of the state to transfer to private enterprises the responsibility for carrying out certain tasks. The answer to this is also twofold.

First, we are dealing in this case with privatization in the context of criminal law. Establishing and managing a prison is part of law enforcement and the administration of criminal justice:

‘The construction and operation of a prison has traditionally been a government responsibility and an indispensable part of the administration of the criminal law. Corrections is not separate from the criminal law; rather, it is a component of an integrated criminal justice system. Just as the state is responsible for promulgating the criminal code, it also has a responsibility to see that the laws are enforced and its offenders are punished. Transferring the provision of corrections to the private sector is tantamount to transferring an important element of government responsibility’ (J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987), at p. 669).

In this context, in the field of criminal law enforcement, the law violates the right to liberty in its most basic sense — personal liberty:

‘The danger of self-interested decision-making can be even more strikingly illustrated in the involvement of private actors in the administration of the criminal justice system, where a very fundamental right, the right to liberty, is at stake’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at p. 110).

The power that was transferred from the state to a private profit-making enterprise in our case — the power to manage and carry out sentences imposed by the criminal law — is a complex and very sensitive power. This is not an ‘ordinary’ administrative power, since is includes a predominant element of discretion in the exercise of authority. This was discussed by Field:

‘Not only is corrections one of the government’s most basic responsibilities, it is probably the most sobering. The ability to deprive citizens of their freedom, force them to live behind bars and totally regulate their lives, is unlike any other power the government has’ (‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

Similarly, Justice Zamir said:

‘The management of a prison is a very complex task. Just as it requires great power, it also requires great sensitivity… The power of the Israel Prison Service is not similar, from the viewpoint of its nature and scope, to an ordinary administrative power… Because of the great dependence of inmates on prison officers, and because of the concern that the power wielded by prison officers may be abused, since it is a power that is exercised behind tall walls, there is a very great need for judicial scrutiny of the Israel Prison Service. Admittedly, it is the court that sent the inmates to prison; but now, when they are behind the prison walls, the court is the protector of prison inmates’ (PPA 7440/97 State of Israel v. Golan [54], at pp. 7-8).

Judicial scrutiny of an administrative power of this kind is exercised not only in the field of administrative law, but also in the field of constitutional law. As I have shown, a transfer of power to ‘manage a prison’ from the state to a private profit-making enterprise is a provision from the field of criminal law that amounts to a violation of the constitutional right to personal liberty. As such, it should satisfy the tests of the limitations clause (see Y. Karp, ‘Criminal Law Legislation in Light of the Basic Laws,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 175 (1996), at p. 276).

It should be noted that even with regard to an ‘ordinary’ administrative power there may be matters that will usually be managed by the state itself. Thus, for example, it has been held with regard to the power of the attorney-general to appoint a prosecutor in criminal trials that ‘it should be held that for certain types of offences — including the main offences of criminal law — the prosecution should be conducted by the District Attorneys’ offices’ (HCJ 1783/00 Haifa Chemicals v. Attorney-General [18], at p. 657) and that ‘The rule is that where a power has been given to appoint a person as an organ of a competent authority or to delegate a sovereign power to him, that person should be a part of the sovereign authority’ (ibid. [18], at p. 655).

12. Second, it is possible to say that the law before us is an extreme expression of the ‘“age of privatization” in which we find ourselves today’ (per my colleague the president in CrimFH 10987/07 State of Israel v. Cohen [22], at para. 14 of her opinion, and see also paras. 7-13 of the opinion of Justice Rubinstein). It was with good reason that Justice Cheshin pointed out in Multimedia Co. Ltd v. Israel Police [49] that ‘We have not yet arrived at the privatization of the police. It is also to be hoped that we will never do so’ (ibid. [49], at p. 689). But it would appear in a certain sense that we have.

Our judgment, however, does not determine any hard and fast rules regarding the broad range of products and services that may be privatized. The ‘age of privatization,’ which seeks to reduce government involvement in economic and social life, includes a broad range of matters that may fall within its scope: the sale of publicly owned companies; carrying out government activity or building public infrastructures through private contractors (‘outsourcing,’ as in our case); changing over from the supply of publicly funded products and services to their supply in return for payment (‘commercialization’), etc. (see Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at pp. 467-478). Every type and case of privatization should be considered on its merits (for an all-inclusive model proposed in the field of administrative law, on the basis of the principle of constitutionality, see Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 329-333; for an all-inclusive model proposed in the field of constitutional law, see Barak-Erez, op. cit., at pp. 492-498; for another model, which is based on the principle of ‘publicization,’ see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, who takes for granted the actual legitimacy of privatization (ibid., at p. 37), but raises constitutional questions while discussing theoretical justifications for ‘publicization’ (ibid., at pp. 77-78)). Public law is one entity, but its application may change from one type of privatization to another and according to the circumstances of the case.

13. I should emphasize that we are dealing with a privatization of a power that is integral to criminal law. The interpretation give above to the right to ‘liberty’ was given in this context. The aforesaid interpretation does not lay down any hard and fast rules with regard to other senses of the right that may be derived from it with regard to the privatization of government services in the civil sphere (for privatization in the field of health care, see HCJ 4253/02 Kariti v. Attorney-General [55]; for privatization in the field of welfare, see A. Benish, ‘Outsourcing from the Perspective of Public Law,’ 38(2) Hebrew Univ. L. Rev. (Mishpatim) 283 (2008)). Therefore, the interpretation given to the right to ‘liberty’ in our case does not shed any light on the nature of the ‘economic constitution’ in Israel or enshrine the values of the State of Israel as a ‘welfare state’ (see A. Barak, ‘The Economic Constitution of Israel,’ 4 Law and Government (Mishpat uMimshal) 357 (1998), at p. 378). The identification of an ‘economic constitution’ is a complex matter that is not required in this case (see Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ supra, at pp. 588, 654-655, 669; for further discussion of the difficulties involved in the identification of the economic constitution in the institutional sphere, see Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at pp. 493-494, and Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 341-343; on the range of ideological approaches to this matter with regard to public products, see Dotan and Medina, op. cit., at pp. 301-303; see also different approaches that have been expressed on this matter in case law, such as in CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [56], at p. 446; CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [57], at p. 782; for further discussion of these and other judgments, see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at pp. 48-51; see also HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [58], at p. 650).

Consequently, our judgment does not depart, in my opinion, from the premise of ‘constitutional neutrality’ in the context of political economics (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386). All that has been said in this case, in brief, is that in the field of criminal law a transfer of power to enforce the criminal law and to maintain public order at the imprisonment stage, when we are dealing with a power that has a predominant element of discretion for exercising authority, from the state to a private profit-making enterprise, violates the constitutional right to liberty. It therefore needs to satisfy the conditions of the limitations clause.

The violation of human dignity

14. As I have said, I agree that there is also a violation of the constitutional right to human dignity. I would like to explain this violation from an additional perspective.

15. It is well established in case law that the principle of equality is a part of the constitutional right to human dignity, according to the ‘intermediate model’ adopted in the case law of this court with regard to the interpretation of the right to human dignity:

‘It is also possible to include within the scope of human dignity discrimination that does not involve degradation, provided that it is closely connected with human dignity as expressing the autonomy of the private will, the freedom of choice and the freedom of action, and similar aspects of human dignity as a constitutional right’ (Movement for Quality Government in Israel v. Knesset [19], at para. 38 of the opinion of President Barak).

In my opinion, the law violates the principle of equality between inmates. The violation of equality is reflected in the fact that the law creates a distinction between two groups of prison inmate: one group will be imprisoned in a private prison that is managed by a profit-making concessionaire, and the other group will be imprisoned in a state prison (see appendix H of the concession agreement, which gives details of the categories for selecting inmates for the private prison). The first group, which will be imprisoned in a private prison, is discriminated against relative to the second group, since the private profit-making enterprise is not subject to the same ‘civil service ethos in the broad sense of this term’ (per my colleague the president, at para. 26 of her opinion); in particular, it is tainted by an inherent conflict of interests in exercising sovereign authority, because it is an entity that is motivated by considerations of profit, which are improper considerations when exercising a sovereign power regarding the imposition of imprisonment and the manner in which it is imposed. This is an a priori conflict of interests that does not require any specific factual proof (see and cf. HCJFH 5361/00 Falk v. Attorney-General [59], at paras. 16 and 18 of the majority view in the opinion of Vice-President Mazza). This inherent conflict of interests creates a distinction that contains a relevant difference for the purpose of the discretion in exercising the power. The conclusion is that the first group that is imprisoned in the private prison are victims of discrimination. This discrimination is closely connected to human dignity according to the ‘intermediate model’ (see and cf. the requirement of equality in the possibility of consuming products and services in a privatization of the commercialization type, in Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 299-300, 330).

16. In her opinion, my colleague the president discussed the inherent conflict of interests. I agree with her remarks and will add two perspectives: first, the modus operandi of commercial confidentiality that typifies the concessionaire conflicts with the modus operandi of transparency and openness that typifies the civil service as a part of the concept of accountability (on this idea, see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at pp. 68-69); second, and following from this, the disparities in knowledge between the concessionaire and the state, despite its supervisory role, may be abused for the self-interest of the concessionaire and to the detriment of the inmates in its custody (R. Mandelkern and A. Sherman, ‘The Privatization of Social Services Implementation in Israel,’ (State Responsibility and the Limits of Privatization Research Project, The Centre for Social Justice and Democracy in Memory of Yaakov Chazan at the Van Leer Jerusalem Institute), at para. 2.3). This conflict of interests can also be understood from an economic perspective, as Prof. Chaim Fershtman says:

‘Private ownership changes the inducements according to which the service is managed. It affects the accountability of the service providers to the recipients of the service and to the public. Considerations of maximizing profit — even if they are restrained by regulation — will change the product itself… Even if the payment for a certain prison will be based on the existing number of prison places, it is clear that if the prison is full an additional prison will be needed to make additional profits. The opposition to private ownership is based on the desire that industry, which operates on a profit-making basis, will not influence or encourage imprisonment’ (C. Fershtman, The Limits of Privatization (2007), at p. 25).

And as Donnelly says:

‘… the private interest of maximizing profit may conflict with the public interest in sound correctional policies: private managers in prisons may choose to lower costs by minimizing staff numbers, hiring under-qualified guards, or providing minimally adequate but substandard care’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 91-92).

Against this background, I agree with my colleague the president that the supervisory mechanisms in the law (including s. 128AE of the law) do not allay the concern that the discretion in exercising a power will reflect the business or other interests of the private enterprise in such a way that violates the rights of the inmates (see also Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 136). The concern is built into the discretion of a private entity. This was discussed by Walzer, who said that a private prison —

‘… exposes the prisoners to private or corporate purposes, and it sets them at some distance from the protection of the law’ (M. Walzer, ‘Hold the Justice,’ New Republic (April 1985), at p. 12).

As Donnelly says:

‘Private prison operators make decisions affecting the liberty interests of prisoners on a daily basis — even though they are incapable of removing their own profit interest from these decisions’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at p. 110).

17. Section 76 of the Prisons Ordinance [New Version], 5732-1971, provides that the Israel Prison Service will engage ‘in the management of the prisons, the guarding of inmates and everything involved therein.’ As a rule, a power ‘to manage a prison’ is inherently ripe for abuse. A clear example of this concern relates to prison inmates’ work. When the state, through the Israel Prison Service, is responsible for the inmates’ work, the concern that the sovereign power to manage the prison will be abused is weaker, since the state regards the purpose of the inmates’ work as mainly rehabilitative, whereas ‘the economic interests involved in the inmates’ work, although they exist, are only marginal’ (per Justice Zamir in HCJ 1163/98 Sadot v. Israel Prison Service [21], at p. 836; see also the remarks of Justice Beinisch at p. 864: ‘The work of a prison inmate… from the outset involves restrictions and is not for making profit’). By contrast, when the private enterprise is responsible for inmates’ work, a problem of an inherent conflict of interests clearly arises. Does the private concessionaire also share the outlook that ‘the work of inmates serves important purposes from the viewpoint of the inmates, the Israel Prison Service and the general public’ (Sadot v. Israel Prison Service [21], at p. 837, per Justice Zamir)? I think that the answer to this is no, as Peleg says:

‘The privatized enterprise tends to regard itself as a private concern that is accountable to itself and its owners. Its purpose is to maximize its profits. It seeks to be efficient and to reduce costs; it seeks to be profitable. Therefore the welfare of the individual is not one of its priorities… A private prison is capable of violating the dignity and liberty of the inmate on a daily basis, in view of the existence of an inherent interest in keeping as many inmates as possible in the prison’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 38).

In this situation, there is a concern that the sovereign authority given with regard to inmates’ work will be abused (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997), at p. 381, which was cited in the Knesset’s Position in paras. 227-276). This concern becomes greater when we are speaking of a weak population, like the one in our case, which concerns a population of prison inmates who have lost their liberty (see Peleg, op. cit., at p. 63). The aforesaid concern, in view of the character and nature of the power under discussion, is an inherent concern that is real and immediate (cf., in the context of administrative law, HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16], at pp. 212-213; Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at p. 310).

18. In my opinion, the inmate’s work for the private concessionaire turns him into a ‘means of making profits’ in a way that violates  dignity. The ‘intermediate model’ for a violation of human dignity is also sufficient for reaching this conclusion, and there is no need for the ‘degradation’ model.

‘When a person is treated not as an “end in himself” but as a “means only,” the value of human dignity is violated’ (A. Parush, ‘Moral Responsibility, Criminal Liability and the Value of Human Dignity — On Some Recent Developments in Israeli Criminal Law,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 87 (1996), at p. 95). Recognizing a human being as an end and not as a means is ‘closely and objectively’ related to human dignity as a part of the ‘intermediate model’ in the interpretation of the constitutional right to human dignity (see Barak, Constitutional Interpretation, at pp. 406-407, 416). According to the ‘intermediate model,’ which was adopted as aforesaid in the judgment in Movement for Quality Government in Israel v. Knesset [19], ‘human dignity regards a human being as an end and not as a means of achieving the ends of others’ (Barak, Constitutional Interpretation, at p. 421). Admittedly, inmates’ work is only a part of the activity in the prison, and according to law the concessionaire is also responsible for the activity of ‘work training and providing education’ (s. 128L(a)(3) of the law), but this fact does not negate the actual violation of the constitutional right but merely concerns the question of the proportionality of the violation.

19. In summary, the violation of the principle of equality between inmates is built into the manner in which the private enterprise exercises its discretion when it exercises the power to ‘manage the prison.’ This violation of the principle of equality violates the constitutional right to human dignity — a violation that is separate from the violation of human dignity as a result of the actual imprisonment. It falls within the scope of the ‘intermediate model’ of the constitutional right to human dignity. It should be recalled that the law violates equality with respect to a very weak and vulnerable sector of society, which is a minority group of prison inmates who have lost their liberty (see M. Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State: Criminal Law Issues,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 27 (1996), at pp. 68-69). This violation should also satisfy the conditions of the limitations clause.

The constitutionality of the violation of rights — the limitations clause

20. The determination that the constitutional rights to personal liberty and human dignity have been violated in this case does not rule out any kind of cooperation between the public sector and the private sector in managing a prison. The limitations clause makes it possible to ‘legitimize’ a violation that satisfies its conditions. I agree with my colleague the president that in our case the constitutional scrutiny focuses on the test of proportionality (with its three subtests).

I do not rule out the possibility of cooperation in the management of a prison if it is proportionate and constitutional. Administrative law allows cooperation as aforesaid on the level of the state availing itself of ‘assistance’ even without an express provision in primary legislation (‘the law is presumed to have granted the power, since its purpose is to allow the person having the authority to receive assistance from others in exercising his authority,’ and the scope of the assistance ‘varies from one case to another and from one function to another,’ (Philipovitz v. Registrar of Companies [15], at p. 429)). In my opinion, the fact that in our case the cooperation was expressly enshrined in primary legislation gives the executive authority a broader margin of appreciation than mere ‘assistance’ (for the legislature’s margin of appreciation in primary legislation, see Israel Investment Managers Association v. Minister of Finance [7], at p. 386). But in view of the violation of constitutional rights, this margin of appreciation, which derives from enshrining the privatization in primary legislation, needs to satisfy the tests of the limitations clause, including the constitutional proportionality test:

‘The separation of powers gives the role of formulating a position as to the proper arrangement to the legislature, but the legislature’s freedom of choice is subject to constitutional restrictions. These are not ideological restrictions of a political nature… The constitutional restriction imposed on the legislature is the one provided in the limitations clause’ (HCJ 2334/02 Stanger v. Knesset Speaker [60], at pp. 794-795).

 I shall therefore focus on the proportionality test.

The proportionality test

21. ‘The violation of the rights of the prison inmate is subject to the general test of proportionality’ (Tzemah v. Minister of Defence [5], at p. 266 {662}). The proportionality test should be examined against the background of the purpose of the law. I agree with the position of my colleague the president that the purpose of the law is an economic purpose combined with an attempt to improve prison conditions, and that this is a proper purpose (see para. 45 of her opinion; on the urgent need to improve prison conditions in Israel see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at paras. 12-14 of the opinion of Justice Procaccia). The question is whether the measure chosen in the law — a massive privatization of the power of managing the prison, including a predominant element of discretion when exercising authority — is a proportionate measure for the purpose of realizing the aforesaid purpose. In my opinion, the key to answering this question lies in the second subtest and the third subtest of proportionality and how they interrelate. I should point out here that I agree with the determination of my colleague the president that the supervisory measures set out in the law are incapable on their own of achieving a proportionate balance with regard to the law before us (para. 43 of her opinion).

22. The second subtest of proportionality (the least harmful measure test) stipulates that of the possible measures that realize the purpose of the legislation, the measure that violates the constitutional right to the smallest degree is chosen: ‘The legislative measure is compared to a ladder, which the legislature climbs in order to achieve the legislative purpose’ (Israel Investment Managers Association v. Minister of Finance [7], at p. 385).

As we have said, we are dealing with a law in the field of Israeli criminal law. Within the context of the question of proportionality, we need to examine ‘the question of whether there are alternative less harmful measures that achieve the purpose which the provision of criminal law is intended to promote’ (M. Gur-Arye, ‘The Effect of the “Constitutional Revolution” on Substantive Criminal Law Following the Silgardo Judgment,’ The Barak Book — Studies in the Judicial Work of Aharon Barak (E. Zamir, B. Medina and C. Fassberg, eds., 2009) 325, at p. 330). From the state’s position it can be seen that in the course of preparing the law, a ‘softer’ option that the model that was finally adopted in the legislation was considered. This ‘softer’ option is based on the ‘French model’ of privatization (in the sense of ‘outsourcing’), in which the concessionaire is given powers to build and operate the prison on a regular basis (maintenance, food, laundry, providing medical services), whereas the powers of management, security and discipline enforcement in the prison are retained by the state (hereafter: ‘the French model’; details of the French model appear in the ‘Knesset’s position’ that was filed in this court, in paras. 118 and 121-123). Section 2 of the French law concerning services in a state prison (Loi n°87-432 du 22 juin 1987 relative au service public pénitentiaire) provides that the state may authorize a private enterprise to build and operate a private prison, provided that it is not given powers relating to management, record-keeping and surveillance of inmates.

The French model is one of a partial privatization rather than a complete one (see U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 102-103). This model may extend the scope of the ‘assistance’ that may be received from a private enterprise to include fields that are not technical, provided that these do not include the power to ‘manage the prison.’ It should be noted that the constitutionality of a law with a similar model of a ‘partial privatization’ was upheld by a majority in the Supreme Court of Justice of Costa Rica (see Sala Constitucional de la Corte Suprema de Costa Rica, Sentencia N. 2004-10492 de fecha 28 de septiembre de 2004), which is discussed in J. Troen and L. Ben-David, Privatization of Prisons from a Comparative Perspective: Trends, Models and Constitutional Questions (Knesset Research and Information Centre (10 August 2006)), at pp. 21-25; see also the Knesset’s Position, at paras. 258-268).

The main reason given in the state’s pleadings for rejecting a model similar to ‘partial privatization’ is that on the basis of the experience accumulated around the world, it may be expected that there will be difficulties in operational collaboration and problems in the division of responsibility between the Israel Prison Service and the concessionaire (see para. 18 of the respondents’ response, as discussed in para. 48 of the opinion of my colleague the president). Against the background of this position, my colleague the president holds that the law satisfies the second subtest, since it is not possible to say whether the ‘French model’ will satisfy the purpose of the law to the same degree or to a similar degree as the model that was ultimately adopted by the law (para. 49 of her opinion). It will be recalled that the second subtest requires the less harmful measure to realize the purpose of the legislation ‘to the same degree or to a similar degree’ as the measure chosen by the legislature (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak).

23. In my opinion, the state’s argument for rejecting the ‘French model’ on the basis of ‘experience accumulated around the world’ is unconvincing. In Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], the state presented what constituted in my opinion weighty arguments for rejecting the alternative measure proposed in that case, and it proved that the proposed alternative was totally impractical in view of the security position (Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at para. 20 of my opinion). In our case, the state did not present any such weighty considerations. The ‘partial privatization’ model, like the ‘French model’ has not been tried and tested in Israel ‘in the field.’ Comparative research shows that ‘softer’ models of partial privatization have been operating for years in European countries such as France and Germany (see Troen and Ben-David, Privatization of Prisons from a Comparative Perspective: Trends, Models and Constitutional Questions, supra, at p. 5; Harding, ‘Private Prisons,’ supra, at p. 274). Therefore, in my opinion, the state did not succeed in showing that the ‘French model’ cannot be implemented in Israel. Consequently, it is possible that it could already have been determined at this stage that the law is unconstitutional because it does not satisfy the second subtest. Notwithstanding, it would not be right, in my opinion, to decide the question of the second subtest on the basis of burdens of proof. The fundamental question of who bears the burden of proof at the proportionality stage has not yet been determined in this court, and there are different approaches on this subject (see Movement for Quality Government in Israel v. Knesset [19], at paras. 21-22 of the opinion of President Barak; although in that case the court reached the conclusion that the burden of proof regarding the second subtest rests with the state, see para. 69 of the opinion of President Barak). It should be recalled that ‘frequently there are several models that satisfy the requirements of the limitations clause. All of these fall within the “margin of limitations.” The choice between them rests with the legislature’ (Stanger v. Knesset Speaker [60], at p. 795). In view of the margin of appreciation of the legislature in enacting primary legislation, the state ‘passes’ the second subtest.

According to my approach, however, this does not mean that the state can simply ignore the ‘partial privatization’ model. The ‘partial privatization’ model may serve as a comparative basis when implementing the third subtest of proportionality. Neither the concessionaire nor the state denies the constitutionality of this model. According to the concessionaire, ‘for the purpose of adopting the French model, there was no need to make any legislative amendments, and it was possible to rely on existing legislation’ (para. 30.5.3 of the third respondent’s response to the petition); in a similar vein, counsel for the state said during the hearing before us, in reply to the court’s question why the state did not choose legislation along the lines of the ‘French model,’ that ‘this did not constitute a privatization at all, nor did it involve a transfer of powers… For this, not even the most prosaic delegation of power was needed; it is merely the purchase of services.’ The petitioners, for their part, argue that the ‘partial privatization’ model is the proper alternative:

‘There are other less harmful measures that realize the purpose underlying the passage [of the law]…. A partial privatization of powers that does not contain a predominant element of exercising sovereign power would achieve a similar purpose to the one achieved within the framework of a complete privatization as determined [in the law]… Therefore, this possibility should constitute an additional option within the framework of this constitutional test’ (para. 143 of the petition).

24. The third subtest is the test of proportionality in the narrow sense. This test focuses not only on the measure, but also on the violation of the human right (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the opinion of President Barak). This is an ethical test that requires the benefit arising from the realization of the purpose to be commensurate with the damage that is likely to be caused as a result to the constitutional right. As we have said, the petitioners, the state and the concessionaire do not deny the constitutionality of the ‘partial privatization’ model, and de facto it is not the subject of dispute (the ‘partial privatization’ model will be referred to below as: ‘the alternative’). In these circumstances, the question is whether the law is proportionate (in the narrow sense) in comparison to the alternative. This question is limited in scope since the balance is examined in comparison to the alternative. This was discussed by President Barak:

‘The test of proportionality “in the narrow sense” is usually applied with “absolute values,” i.e., by directly comparing the benefit of the executive act with the damage that results from it. But it is also possible to apply the test of proportionality in the narrow sense “relatively.” According to this approach, the administrative act is considered in comparison to a possible alternative to it, whose benefit is somewhat less than that of the original executive act. The original administrative act will be disproportionate, according to the proportionality test “in the narrow sense,” if a small reduction in the benefit obtained from the original act, for example by adopting the possible alternative, ensures a significant reduction in the harm caused by the original act’ (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [61], at p. 840 {297}; see also A. Barak, ‘The Fundamental Constitutional Balance and Proportionality: the Jurisprudential Aspect,’ The Barak Book — Studies in the Judicial Work of Aharon Barak (E. Zamir, B. Medina and C. Fassberg, eds., 2009) 39, at pp. 60-64).

Against this background, we should apply the third subtest in our case as follows: the question is whether the additional benefit in prison conditions and financial savings obtained by adopting the model ultimately chosen in the law rather than the alternative is commensurate with the additional violation of the personal liberty and human dignity of the inmates in a private prison.

From general principles to the specific case — is the enactment of the law rather than the alternative proportionate (in the narrow sense)?

25. Quantifying the ‘realization of the purpose’ side of the equation, namely the additional benefit in prison conditions and financial savings obtained by enacting the law as it stands rather than the alternative is a complex matter, and the tools available to the court for quantifying this are limited (see and cf. Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 328-329). The quantification should take into account, inter alia, the standard of the prison, the reduction in prison overcrowding, the cost of making the transaction with the concessionaire, the cost of supervision and regulation, the cost of unforeseen developments, etc. (see Mandelkern and Sherman, ‘The Privatization of Social Services Implementation in Israel,’ supra, at para. 2.4). There are opinions that we should also take into account in this context the cost of the harm to ‘social preferences,’ i.e., the fact that there are people who are ‘concerned’ that the service should be provided exclusively by the state:

‘There may be a basis for regarding the Israel Prison Service as a product that the whole public consumes, and by means of this product the public enforces the rule of law… The very fact that the Israel Prison Service is universal is a value in itself, for which we are prepared to pay. It is important to us that the government will have a monopoly on bodies that have permission to employ coercive measures on behalf of the state (such as an army, a police force, a prison service, etc.). These preferences are no less important than our preferences regarding consumer products that we actually consume… Social preferences should not be dismissed as being of less value’ (Fershtman, The Limits of Privatization, supra, at pp. 23-24).

It would appear that in the circumstances of the case before us, and in the absence of a sufficient factual basis for a decision, the quantification of the ‘realization of the purpose’ side of the equation does not lead to an unequivocal result. It cannot be determined that the enactment of the law as it stands rather than the alternative leads to a critical additional benefit in achieving the purpose.

26. By contrast, the quantification of the ‘violation of the right’ side of the equation leads to an unequivocal result. The enactment of the law as it stands rather than the alternative results in an additional violation of the personal liberty and human dignity of the inmates in a private prison that is clear and has ‘critical mass.’ Enacting the law as it stands rather than the alternative gives the private concessionaire sovereign authority to enforce the criminal law and to maintain public order, and it gives it invasive sovereign powers that involve the exercise of a large degree of discretion. Indeed, the scope of the (partial or complete) privatization is of decisive important for quantifying the violation of the constitutional right (see and cf. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 497). The aforesaid additional violation constitutes the main violation of the constitutional rights to personal liberty and human dignity. The extent of the violation of constitutional rights will be very greatly reduced by adopting the alternative to the law.

27. Therefore, in the balance between the realization of the purpose side of the equation and the violation of the constitutional right side of the equation when comparing the law as it stands to the alternative, the additional realization of the purpose of the law (in so far as there is any) is not commensurate with the additional violation of the constitutional rights of the inmates in a private prison. The conclusion is that the third subtest of proportionality is not satisfied, and it should therefore be held that the law is unconstitutional.

The constitutional relief

28. I agree with the conclusion of my colleague the president that there is no alternative to setting the law aside (para. 65 of her opinion). Nonetheless, I should point out that the finding that the enactment of the law as it stands rather than the alternative is not proportionate (in the narrow sense), such that it requires the law to be set aside, is a relatively moderate finding, since it leaves the legislature with a choice:

‘Despite the unconstitutionality of the law, in this situation the legislature is not left with no resort. It does not need to return to the situation that prevailed before the law was enacted. It is able to limit the “damage” of the unconstitutionality. It will do so if it enacts the alternative… [thereby] the whole benefit will not be realized and the entire damage will not be undone. But the partial realization may satisfy the legislature’s policy’ (Barak, ‘Fundamental Constitutional Balance and Proportionality: the Jurisprudential Aspect,’ supra, at p. 63).

Regarding additional tools for constitutional judicial scrutiny

29. In view of the president’s reasoning, with which I agree, there is no basis in my opinion for resorting to additional tools for constitutional judicial scrutiny and relying — as proposed by some of my colleagues in this case — on the basic principles of the legal system (see HCJ 142/89 Laor Movement v. Knesset Speaker [44], at pp. 551, 554) or on the social contract (see Movement for Quality Government in Israel v. Knesset [19], at para. 6 of Vice-President Emeritus Cheshin). In my opinion, these tools are a ‘last resort’ that should be used with care and great restraint, especially when the constitutional paradigm accepted in our legal system, which is built on the Basic Law: Human Dignity and Liberty and its limitations clause, leads to an identical result. The content of the social contract in Israel — as an idea that gives expression to society’s common denominator — is susceptible to various interpretations and there is no need for us to make a decision on this matter in the case before us (see and cf. the different opinions of President Barak and Justices Cheshin and Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13]). These tools require profound consideration with regard to the constitutional remedy that results from applying them. At the present time, it is sufficient in my opinion to use the social contract as a tool for the interpretation of the constitutional rights enshrined in the Basic Laws.

Summary

30. For the above reasons, I agree with the opinion of my colleague the president that amendment 28 of the Prisons Ordinance unconstitutionally violates the constitutional human rights of personal liberty and human dignity, and should therefore be set aside.

 

 

Justice E.E. Levy

1.    I regret that at this time I am unable to agree with the main conclusions that my colleagues have reached, or even with the result of their decision. I am of the opinion that this complex issue, with the question of its effect on basic human rights and other protected values, ought to be put to the test before we reach in this matter even those conclusions that the legal tools in our possession allow us to reach. If I have decided to speak further on the subject, it is because I am of the opinion that the judicial course that is the subject of this petition is extremely complex, and it ought to be properly clarified.

 The rights argument

2.    One of the main issues relating to the question of the privatization of prisons, in which I am in complete agreement with my colleagues’ position, is the need to guarantee the basic rights of the inmates. Admittedly, the act of imprisonment implies, almost as a purpose, a violation of the right to liberty, but this should not exceed the proper degree. And as for human dignity, this is given to every human being, prison inmates as much as anyone else. ‘When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison’ (per Justice Cheshin in PPA 4463/94 Golan v. Prisons Service [11], at p. 172 {529}). From this pair of rights one can derive a further right, which is the right to proper prison conditions, which has aspects of a social right that addresses the position of a prison inmate in society both before he is convicted and after he has served his sentence. As such, the state has a central role in realizing it: ‘Social rights have huge importance from the viewpoint of the weaker echelons of society, who particularly require help and protection from the public administration. Social rights require considerable involvement on the part of the public administration’ (I. Zamir, ‘Public Supervision of Private Activity,’ 2 Law and Business (Mishpat veAsakim) 67 (2005), at p. 85).

3.    It cannot be denied, however, that at the present, because of budgetary and other crises, the subject of imprisonment finds itself frequently relegated to a low place in the order of the government’s priorities.

‘It has become clear that the public administration is incapable of providing certain services at the required time and in the proper manner, including services that were until recently regarded as proper, and even almost essential, ones for direct administration. One reason for this is the budgetary crisis and national priorities’ (ibid., at p. 80).

In such circumstances, basic rights of persons under arrest and prison inmates are violated on a daily basis as a matter of course.

The heart of the problem is, in general, hidden from the public eye, and for many people it is a matter of no importance. But applications that are made to the courts shed light on it and portray quite a chilling picture of what happens in the prisons, despite the efforts of the Israel Prison Service to improve the situation. In one case my colleague Justice A. Procaccia described —

‘a serious picture of blatant departures from the minimum requirements for holding persons under arrest as determined in the law and regulations, especially with regard to the problem of overcrowding and overpopulation and the lack of sufficient living space for each person, sleeping on the floor without a bed, the lack of cleanliness and sanitary rules and the lack of sufficient ventilation’ (CrimA 7053/01 A v. State of Israel [62], at p. 511).

In another case it was found that ‘The Israel Prison service was compelled to have inmates sleep on mattresses on the floor, because of a serious shortage of prison places that currently exists in Israel’ (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 5). Regarding this practice it was said in another case that ‘It is obvious that sleeping on the floor is not necessary, and it involves a serious violation of human dignity’ (per Justice Dorner in LHCJA 818/03 Zarka v. Israel Prison Service [63]). These are merely several examples; see also HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security [64]; HCJ 1319/03 Israel Bar Association v. Minister of Public Security [65]; and HCJ 572/04 Barry v. Minister of Justice [66].

Year after year, reports of the Public Defender’s Office also reflect a very serious picture of the prison conditions of inmates in some of the prisons. Thus, inter alia, in a review that was carried out in 2008 of fifteen prison facilities of the Israel Prison Service, serious findings were discovered, which were summarized as follows:

‘At the facilities that were inspected, the staff of the Public Defender’s Officer noticed several serious violations of inmates’ rights. The picture that was obtained at some of the prisons is, inter alia, one of physical neglect and very difficult living conditions, major overcrowding and suffocating cells, and of buildings that do not satisfy the basic criteria required by law’ (The Public Defender’s Office, Arrest and Prison conditions in the Prison Facilities of the Israel Police and the Israel Prison Service in 2008, at p. 7 (Ministry of Justice Web Site).[1]

Not only in the field of infrastructure — a critical issue that lies at the heart of the question of privatization — have problems been discovered. In some prisons the persons making the inspection encountered —

‘complaints of violence of prison staff against inmates; extreme and collective disciplinary punishment; a shortage of basic equipment that exposes the inmates to the vicissitudes of the weather; problems in providing medical treatment for inmates; and problems in realizing the right to contact with family members, the right to meet with a lawyer and the right of free access to the courts… There is a serious shortage of therapy and educational groups for security inmates and preventative therapy groups for sex offenders [and] a shortage of positions for social workers’ (ibid.).

More tangibly —

‘In the isolation wing, the inmates are allowed out of the cell once a day for a short time only, and the rest of the time they are shut up in their cell. Instead of a wash basin and toilets, the inmates receive one bottle of water per day and also another bottle and a bag for relieving themselves’ (ibid., at p. 30). ‘In the solitary confinement wing, there was a persistent and nauseating stench’ (at p. 26); ‘during the visit the staff of the Public Defenders’ Office saw many cockroaches running around the cells (ibid.); ‘in most of the prison facilities inmates are compelled to shower in the same place where they or their cell mates have recently relieved themselves’ (at p. 29); ‘lunch is dirty with a poor selection’ (at p. 42); ‘the walls of the room were all smeared with blood stains and splattered insects, which resulted from attempts to deal with the abundance of fleas that plagued the cell’ (at p. 46).

And in several recent cases we have addressed the well-known problem of protecting the life of the inmate, even when he is determined to take it himself. Can there be anything more important than this?

Indeed, even those who have concerns about the consequences of privatization will be compelled to admit that in the current situation the basic rights of inmates are being seriously violated:

‘Israel still has a number of prisons in unsuitable buildings and in a terrible physical state, completely unsuitable for holding prisoners and caring for them. In addition, there is severe crowding in Israeli prisons, that among other things results in hundreds of prisoners sleeping on mattresses on the floors of their cells. In these conditions, on the face of it, it is difficult to provide prisoners with the rights to which they are legally entitled’ (U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at p. 100).

Justice H.H. Cohn also addressed this matter:

‘Most of the moral problems that I have mentioned derive from the very nature of imprisonment. I do not ignore the many important improvements that have been made and that are being made to prison conditions; and I am aware of the fact that in practice modern penology focuses on finding new ways of making further improvements to prison living conditions. But de facto the nature of imprisonment has not changed, and is not changing; while there are important improvements and amendments that give hope, there are also frequent deteriorations of greater or less seriousness, whether because of the ever increasing number of inmates and the terrible overcrowding in the prisons, or because of the lack of trained staff with sufficient and proper motivation in the Israel Prison Service, or because of the decline in moral and disciplinary standards among the general public. The lack of resources is exacerbated by the tendency (which is not only found amongst jurists) to cling to established practices and to be suspicious of innovations…’ (H.H. Cohn, ‘“Just” Sentencing — Thoughts After Judicial Service’ 1 Plilim — Isr. J. Crim. Just. 9 (1990), at p. 11).

4.    Amendment 28 of the Prisons Ordinance is an innovation. The arrangement proposed in it sought to contend with the problems that currently characterize the imprisonment of inmates. This arrangement is based on two foundations, which from time to time are associated with the idea of outsourcing executive activity and entrusting it to private enterprises: an improvement in professionalism, which is based on the assumption that private enterprises will succeed in doing what needs to be done better than government authorities, and economic efficiency, which is encapsulated in the ability to carry out the same tasks at a lower cost. Prof. Zamir explained:

‘In certain spheres, the service that the public administration provides to the public is not cost-effective, it is inefficient or it is simply not good. The reason is sometimes a lack of financial resources and manpower, but there are additional reasons. One possible reason is bad procedures or bad management. Another common reason is the employment of employees who are not of sufficient calibre, either because of low salaries or because of political considerations, or difficulties in dismissing careless employees’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 81).

Without resorting to unjustified generalizations, I would say these circumstances that are described by the learned Prof. Zamir are true of many of public services in the State of Israel. One does not need to study the matter in depth in order to understand that dealing with complex management tasks is often beyond the capabilities of government officials, and they do not have the same degree of success as persons in the private sector, who acquire — literally in both senses of the word — expertise in carrying out these tasks.

It is possible that scholars who called for a change in the situation were not thinking of an amendment of the kind that has been examined in this case. It is possible that the arrangement enacted with regard to the private prison is unsuited for the desired improvement. It is possible, as my colleague Justice Procaccia emphasizes in her comprehensive opinion, that granting the concession will exacerbate the present situation. It is possible that government officials that sometimes have difficulty in carrying out the task themselves, will have no less difficulty in properly supervising the activity of the private operator. It is possible that the state will not properly understand the dimension of accountability that remains its lot even after the concession is given to the private enterprise. Prof. Zamir also wrote this: ‘There are already signs of an awakening to the fact that privatization is not a magic solution to the problem of efficiency in public administration’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 83, note 63). Moreover, research around the world shows there is a concern that privatization and its incentives will undermine motivation to rehabilitate inmates and will thereby contribute to an increase, rather than a decrease, in the number of offenders (Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ supra, at p. 83). There is an ongoing debate regarding the effectiveness (including in the economic sphere) of privatizing prisons (ibid, at p. 85). It has been argued that the existence of a private prison will increase the concern of an improper relationship between ‘big money’ and government (ibid., at p. 91). See also Y. Peled, ‘Crime Pays: What Can be Learned from the American Experience in Privatizing Prisons,’ 82 HaSanegor (The Defence Attorney) 5 (2004); N. Carmi and E. Gal, Crime and Punishment — the Privatization of Prisons: Position Paper (Report of Physicians for Human Rights, 2005). On the other hand, it is possible that these serious consequences will not materialize, as can be seen from other opinions and research, which, as my colleague the president has already noted, often rely on conflicting findings.

5.    It is fundamental in my opinion that my colleagues, who sought not to consider at this time the future state of the aforesaid rights, did not address all of the above. I am in full agreement with this approach. In my opinion, prospective constitutional scrutiny is possible only when there is a high probability — perhaps I should say a very high probability — that the assumptions underlying it will be realized. A concern of a future violation of a protected right can be used to prevent that violation ab initio — and it is better to prevent evil before it occurs (HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [67], at p. 572) — provided that there is a sufficiently strong basis for this in current data. This is the reason why I have difficulty in reconciling myself to a position that is based on a potential violation of rights, when the chances that it will occur are not currently known.

6.    Indeed, the deliberations in this petition should focus on the current, rather than the future, violation inherent in delivering sovereign powers, and particularly the most fundamental ones, into private hands. I am prepared to agree that the privatization of prison services inherently exacerbates the violation of the dignity of the prison inmate. There is an element of humiliation in a person knowing that another, who is no different from him, is responsible for his imprisonment and exercises force to deprive him of what only the state usually has the power to deny, while that other is deriving a personal profit, which some say is considerable, from that imprisonment. I am also prepared to assume — and this requires further study of the conceptual basis of the idea of liberty that is comprehensively discussed in the opinion of my colleague Justice M. Naor — that imprisonment at the hands of a private concessionaire also exacerbates the violation of this important right. The essence of the matter lies in the idea connecting the power of the state to deny someone his liberty and the protection that he seeks against its being denied by another (a private individual), and in the words of the English philosopher John Lo>‘Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community…’ (John Locke, The Second Treatise of Government, chap. 8, para. 95).

7.    Two interrelated elements are subject to the scrutiny of the law that seeks to protect these rights: entrusting the power to private hands and the financial benefit involved therein. But before I discuss these, I will say that in my opinion it is a mistake — and in this I am in full agreement with my colleague Justice Procaccia — to think that the privatization naturally focuses on the economic interest of the concessionaire or on the savings in the state’s expenditure relating to the prisons. Not merely from the public perspective, although this is of paramount relevance, the privatization seeks first and foremost to realize the public interest in having a proper and efficient prison system. This can be seen from the introductory remarks of the draft law that ultimately became amendment 28 of the Prisons Ordinance:

‘The proposed arrangement is needed because of the crisis in Israeli prisons and the direct repercussions that this has on the conditions in which prison inmates and persons under arrest are  held, as required by the provisions of the Basic Law: Human Dignity and Liberty, and by the provisions of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996. The proposed law was drafted and formulated with a view to the main purpose — ensuring that giving the power to obtain assistance from the private sector will not harm the proper management and operation of the prison and the rights of the inmates, and that during the period of the contract with the private enterprise, the Israel Prison Service will carry out close supervision and control over it to ensure that it fulfils in every particular its undertakings under the agreement that will be signed with it and under the provisions of the proposed law’ (explanatory notes to the Draft Prisons Ordinance Amendment (Privately Managed Prison) Law (no. 26), 5764-2003 (Government Draft Law 73, 5764, at p. 270).

The economic incentive is merely a tool in the service of the public interest. The financial profit is merely a means of achieving the purpose of the amendment, which is an improvement in prison conditions and making the prison system more efficient. The degree to which it is possible to further this purpose depends, inter alia, on the incentive mechanisms stipulated in the arrangements with the concessionaire and on their proper functioning. There is therefore a similarity between the economic incentive given to the private concessionaire and incentives that influence the activity of government officials — promotion in salary and rank, recognition and decorations, professional training or the accumulation of pension rights. Even if I assume that the private concessionaire will always place his economic benefit first, the supervision of the activity of the private prison, which the public administration retains under its control, is solely a matter of the public interest. ‘Public supervision of private activity is intended to serve the public interest’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 72). This, in my opinion, is capable of mitigating the extent of the aforesaid violation of rights, but not eliminating it in its entirety.

8.    Let us return to what is the heart of the question under consideration, namely the judicial scrutiny of the constitutionality of the violation of human rights. This focuses on the question of a balance of benefits that requires us to compare the extent of the violation of inmates’ rights that is inherent in the actual privatization with the potential better protection of these rights as a result of that very same privatization. But what is the proper ‘geographic’ place (to use the term of Justice Y. Sussman in CA 404/61 Skivinskaya v. Uroshitz [68], at p. 363) for making this comparison of the benefits? It may be claimed that the proper place for making this comparison is at the stage of considering the violation of the right, when approaching the limitations clause but before entering into its conditions. Thus, if an executive act detracted from the protected right to a certain degree but at the same time added to it (or it is reasonable that it will add to it in the future), does this not mean that the right is not violated at all? And in the absence of a violation, there is no need to consider the conditions for legitimizing it, namely the limitations clause.

I cannot accept this approach.

Like my colleague the president, my approach also relies on the recognition that amendment 28 of the Prisons Ordinance should be examined by considering its effect on protected basic rights in the light of the provisions of the limitations clause. The balance of the benefit usually finds its main place within the scope of the last part of this clause — the test of proportionality in the narrow sense — which makes it possible to consider all the aspects of the violation of the right, not merely from within, i.e., the balance of the benefit and the damage that are directly related to the right, but also from without, i.e., those that encompass principles and interests that are external to it.

9.    Unlike my colleagues, however, I am of the opinion that there may be no need to make a comparison of the benefits that is naturally required for an ethical decision on whose outcome not everyone will agree. If it is found that the amendment of the Prisons Ordinance is incapable of achieving the purpose for which it was intended (the first test of proportionality), or, alternatively, if it is possible to point to an executive act that will violate the protected right to a lesser degree (the second test of proportionality), then it is possible to reject the executive act that causes the violation, irrespective of the complex question of whether ultimately it is a force for good or not. Judicial scrutiny ought to act in this way, especially where it concerns a law of the Knesset, which reflects decisions of the greatest importance, which in our case are decisions of economic and social policy that the legislature addressed in depth. Indeed, if it is possible (although this is not always the case) to base the judicial scrutiny of laws on clear reasons, which are not vague or the subject of dispute, it is best to do so. This is the case with regard to the type of test that is applied by constitutional scrutiny, and it is also the case with regard to the content of the test that is used in each individual case.

However this may be, the main point in my opinion is that the limitations clause does not provide a firm foothold when we are dealing with theoretical assumptions. As I have said, it requires a high probability that each of the elements that need to be considered exist. It is only natural that it should prefer an examination that can be placed in perspective. But for my colleagues this is unimportant, since it would appear that according to their approach the violation of rights resulting from the privatization is so serious that nothing can mitigate it. By way of analogy, even if the private prison were to promise a seven-day feast for everyone in it, this would not mitigate the degradation and loss of liberty that is the lot of those imprisoned in it, because they are at the mercy of a private concessionaire.

On this point also I cannot follow in my colleagues’ footsteps. Personally, I am of the opinion that another outcome of the comparison of benefits is possible, depending upon the manner in which the arrangement is implemented in the future. According to my approach, it is therefore not right to make the comparison at this time, but since we are dealing with a question that is basically an ethical one, I would like to make two comments in this regard.

First, whatever the attitude to privatization may be, it is not possible to ignore the fact — and this should be placed on the scales to counter the factors that oppose the privatization — that there are other cases where the privatization of core powers has already become firmly rooted in our legal system and it is clear that we have become reconciled to them (but see and cf. CrimA 4855/02 State of Israel v. Borovitz [37], at p. 833). One example actually comes from the field of sentencing. I am referring to the serving of a custodial sentence by way of unpaid work, which is enshrined in article B1 of the Penal Law, 5737-1977, and which is not necessarily served in state institutions but also in institutions that, although they do not operate on a profit-making basis, are defined as private. Another example is provided in the Treatment of Mentally Ill Patients Law, 5751-1991, which authorizes a district psychiatrist to hospitalize mental patients forcibly even in private hospitals (s. 9 of the law). An additional prominent example is that of administrative collection under the Taxes (Collection) Ordinance, in which various authorities are given a possibility of resorting to the assistance of private collection companies, and nothing need be said about the coercive force that they employ. We have also for many years reconciled ourselves to the de facto privatization of security services at public sites, especially in the last decade. And is not the reliance on defence counsel from the private sector, within the framework of the praiseworthy activity of the Public Defender’s Office, not a de facto privatization of a task that the state sought to take upon itself? The same is true of the implementation by private enterprises, in a manner that some claim also involves the use of coercive force, of the ‘Wisconsin plan’ for increasing employment (D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008), at p. 473). It is possible to discuss the similarities and differences of each of the examples brought, but it is hard to ignore the weight that has already been acquired in our society by the privatization of sovereign powers, some of which are quite close to the core activity of the state.

Second, we should set against the concern of a disproportionate violation of protected rights the supervisory mechanisms that have not been omitted from the normative arrangements surrounding the operation of the private prison. Those provided in the amendment to the Prisons Ordinance can be divided into two main classes: internal supervisory mechanisms, namely the restrictions that apply to the activities of the concessionaire and its officers, and external supervisory mechanisms, namely the control exercised by bodies that are not a part of the prison management. The internal supervisory mechanisms are made up of several layers, where each layer adds a new element to the one before it, and all of them make up the complete system of control reserved for the state. The outermost layer gives the commissioner of the Israel Prison Service, with the approval of the responsible minister, the power to cancel the permit to operate the prison that was given to the concessionaire, when the concessionaire does not comply with the conditions laid down for it (s. 128I of the Ordinance). An additional layer concerns the identity and functioning of the prison governor, whose appointment requires approval and is subject to both continuous and periodic review (s. 128AJ of the Ordinance). At the same time, the governor is required to report to the chief supervisor on behalf of the Israel Prison Service of the use of various coercive powers against inmates, and of a concern of a breach of the duties that are imposed on the concessionaire’s employees (ss. 128O and 128S of the Ordinance). The third layer of control mechanisms imposes similar restrictions on the other employees of the concessionaire (ss. 128V-128X of the Ordinance). The external supervisory mechanisms deal with the duty to appoint supervisors for the prison, whose function is to ascertain that the concessionaire and its employees are in compliance with the terms of the agreement and the law, and they are obliged to make investigations in any case where a complaint is received from an inmate with regard to his prison conditions (ss. 128AF-128AG of the Ordinance). An additional supervisory mechanism lies in the definition of the privately managed prison as an audited body within the meaning of s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958 (s. 128AO of the Ordinance). Finally the law provides, in article 10, a broad supervisory mechanism in the form of an advisory committee for prison inmates’ rights, rehabilitation, welfare and health, which has six members, including a retired justice of the District Court, a representative of the Public Defender’s Office, a representative of the Criminology Council, a social worker and a representative of the Prison Inmates Rehabilitation Authority. This committee may speak with prison inmates and receive from the concessionaire any information that it needs (ss. 128AS-128BA).

10. Alongside all of these, the agreement deals extensively with the services that the concessionaire is liable to provide, including therapy and rehabilitation, education, food, and religious and health services; the rights of inmates to furloughs, visits and the filing of claims and petitions regarding their prison conditions (appendix F of the agreement). An additional element in the agreement (appendix M, whose exact content was not brought before us, but which is discussed by the respondents in their response) provides criteria for examining the extent to which the concessionaire satisfies all the requirements. In this regard the agreement provides financial sanctions that will be imposed should the concessionaire not comply with targets or should an inmate die of unnatural causes (clauses 97-99 of the agreement). The agreement goes on to provide that if the prison is found to be unsuitable for inmates to live in, according to specified minimum conditions, the concessionaire will lose the payment for it. The respondents also claim there is a positive incentive mechanism, namely a payment to the concessionaire for strict observance of his duties, but I found no evidence of this in the text of the agreement submitted for our inspection. Finally, the agreement requires the concessionaire to permit Israel Prison Service authorities to conduct a professional inspection of the prison at any time (clause 91 of the agreement), and to establish a commission of inquiry for events that have major ramifications on its operation (chap. B5). In any case of an act, omission or breach of the agreement, the concessionaire is liable to the state and its representatives (clause 111 of the agreement).

In addition to the mechanisms that are addressed in detail in the amended law and the concession agreement, it is clear that the operation of an institution such as a privately managed prison — which is, at the very least, a dual-nature body and in my opinion is closer in status to an actual public body — is required to comply with the rules of administrative law. To these should be added the special rules for inmates’ appeals against interim decisions; the rules of private law, including the application of constitutional public law norms; and the provisions of the criminal law; all of these are additional forms of protection that are prima facie capable of filling the void created by the lack of the disciplinary provisions and the rules of ethics that apply to civil servants (see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001), at p. 214; D. Spivak, ‘The Rights of Prison Inmates and Arrestees in the Privatization Age,’ 95 HaSanegor (The Defence Attorney) 40 (2005), at p. 43; HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [69], at p. 460; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34]).

If the question of financial incentives was discussed above, I should point out that I doubt whether the opponents of the law have taken into account in their decision an additional factor, which is that, in general, unlike the public administration in most respects, a private enterprise has no immunity against actions in tort. There is no basis, however, for deciding at this stage the question whether the umbrella of protection given to the state and its agents in the Torts (State Liability) Law, 5712-1952, can apply to the private concessionaire or not. In this matter s. 128K of the Ordinance, which states that ‘The provisions under this Ordinance or under any other law, which apply to a prison, prison employee or inmate shall apply to a privately managed prison, a prison employee who has a position therein or an inmate held in custody therein,’ may be relevant. On the other hand, see s. 128M of the Ordinance, which saw the need for an express provision that applies the provisions of the Penal Law, 5737-1977, to the concessionaire and its agents in the same way as it applies to civil servants. See also what is stated in the appendix to the concession agreement, namely that ‘The concessionaire knows that an inmate is entitled to file claims [in addition to inmates’ petitions] in the competent courts, on any matter and subject whatsoever (chap. 7, chap. C4: Inmates’ claims and petitions, clause 1.1, p. 769 of vol. 2 entitled ‘Appendix of Operating Services, part 1 (appendix F of the concession agreement — emphasis added)). However this may be, it is clear that the law of torts, whether its scope is the same as that applicable to a public authority or broader, has a significant effect when we are dealing with a private concessionaire that is motivated by economic considerations. Prof. Zamir wrote:

‘Even in the absence of public supervision there are legal arrangements that are intended to prevent a violation of rights and to compensate for such a violation. These are, inter alia, the law of contracts, the law of torts and the law of unjust enrichment. These laws make private supervision possible in a certain sense. The concern of a business enterprise that it may be sued in tort is likely, in certain circumstances, to be no less effective that a whole department of supervisors’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 91).

If I have seen fit to describe at length the supervision and control measures, it is because in my opinion a significant effort has been invested in these aspects from the outset, and this should be given weight when examining the amended law. Adding these to the range of tools in the law creates the complete final picture that is designed to ensure that the state has not divested itself of its powers but merely exchanged them for powers with a new content, namely that of supervision. These mechanisms of indirect government (ibid., at p. 89) should be examined on their merits. Their action needs to prove that it is effective. Their weight, in an age of privatization, is of paramount importance, since ‘the change that has recently taken place in the character of the state, the spirit of the free market, increases the importance of supervision’ (HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [58], at p. 650). But not only is it too early to determine whether there is any basis for a concern that the limitations upon the operations of the prison at the moment will be transferred, possibly even with greater effect, to the field of supervision, but — and this is the main point — it is possible to increase the investment in their implementation before it is determined that the amendment to the Prisons Ordinance cannot stand.

11. My position, in brief, is therefore this: time will tell. It is possible that had this petition been brought before us several months after the arrangement began to be implemented, I would find that my colleagues, the majority justices, are right, and I would not hesitate to add my opinion to theirs. But it is possible that an improvement would take place in the miserable state of prison conditions in Israel, and then the law would satisfy the limitations clause and emerge from it crowned with a constitutional seal of approval. Moreover, it is possible that we would see, if only in part, a realization of the hope that the objects of the privatization, the concessionaires, will have the wisdom to not discharge their obligation to protect the rights of the individual (E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 17), and the conflict between a policy of privatization and the protection of basic rights would no longer appear to be predestined. As I have already said, since judicial scrutiny cannot rely on vague assessments, my position is that it should be left to the proper time rather than the point in time in which we find ourselves today. We are therefore dealing with an egg that has not yet been laid. We do not yet know if the day on which it will come into the world will be a good one or not, nor do we know if it will be edible (Mishnah, Moed, Betzah ch. A).

I think that the rights argument is not only premature, but also does not properly reflect the nature of the main difficulty in the privatization of prisons. This difficulty lies in the intuition of many of the persons who consider this issue, and not so much in the discussion of rights. Prof. Dafna Barak-Erez wrote:

‘The question of the limits of privatization in constitutional law arises in two spheres. In the institutional sphere, the question is whether there are actions that cannot be privatized at all, since they are an integral part of the character of the state. In the field of rights the question is whether privatizations violate basic rights in a way that does not comply with the constitutional tests’ (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 493).

Taking the bull by the horns — which is an essential element in any decision made by the court — therefore requires us to consider the institutional question, both from a fundamental viewpoint and also with regard to what it tells us about the areas where judicial scrutiny should be exercised in relation to Knesset legislation. Some of my colleagues discussed this question within the context of the issue of rights, since in their opinion the breach of the institutional principles in itself is capable of exacerbating the violation of inmates’ rights. But some of the reasons that were given in my colleagues’ opinion relied, as I see it, on the impropriety of the state divesting itself of its powers and its departure as a result from the basis on which a state is based, namely the idea of the social contract, which I shall consider now.

The political philosophy argument

12. According to Prof. Barak-Erez —

‘First, there is no consensus with regard to the definition of the minimum core activity of every state. The variety of opinions in this field is large. Some people give the state a monopoly on the use of coercive force; others give it a monopoly on acts that have elements of sovereignty; still others give it a monopoly on the role of supplying public commodities’ (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 493).

The question that lies at the heart of defining the powers of the executive branch in particular and of the state in general is a hard and complex one. Any discussion of it gives rise to many difficult and profound questions. Any decision on this issue involves ethical and moral outlooks. Its ramifications touch upon all walks of life, not merely legal ones. In general, it is best to leave it, inter alia, to philosophers and scholars of political science. But in view of the position that the privatization involves a violation that ‘lies in the field of the social contract on which the existence of the state is based’ (per my colleague Vice-President E. Rivlin, supra), it would appear that there is no alternative but to address this matter in brief.

The heart of the matter is the principle of state sovereignty. An accepted outlook is that the sovereign state contributes to the combined happiness of its subjects by guaranteeing their safety and welfare. It is also possible to say that each member of the community has ‘a civil genetic code,’ which leads him to define himself not only as an independent and separate entity but also as a part of a larger social-human fabric, of which the prime expression today is the sovereign state. An important theoretical basis for the principle of sovereignty lies in the concept of the social contract, which is a cornerstone in the life of modern civil society.

The theories of the social contract, which were developed during the seventeenth and eighteenth centuries, give an answer to the question why people chose to abandon the natural state and change over to the civil state, i.e., to membership of communities, and later a state. They describe a process in which, supposedly, human beings had the sense to realize that if they formed a society, they could protect their natural rights in the optimal fashion. Therefore they agreed to assign coercive power and the power to make decisions and adjudicate issues that they had as individuals to one entity — the state, which is called sovereign — and to look to it to act in accordance with their combined will.

Although it is quite old, the idea of the social contract has not lost its appeal, and it is also used with reference to political issues in the modern age. Notwithstanding, like most philosophical theories, its practical application is not at all simple. It admittedly equips someone who is seeking a broad conceptual outline, which is of unparalleled importance, to understand and analyze issues, but it does not provide a specific solution to them. It has been said in our case law that ‘the social contract is not a historical fact whose content can be determined, nor even a legal document, whose meaning can be debated. The social contract is merely an idea that gives expression to the ideal image of society’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 340 {62}). In the case before us, the theory of the social contract makes it possible to hold a general discussion of the question of the state’s powers, including its most central ones, but it does not provide us, in my opinion, with a clear answer to the question of the privatization of prisons.

The primary explanation for this determination can be found in the supreme importance that some of the social contract approaches attribute to the legislature or to the actual acts of legislation. These are regarded by those approaches as the acme of the political entity, since they express the sovereign outlook and the combined will — a synopsis of the essence of the whole theory (Locke, The Second Treatise of Government, supra; Jean-Jacque Rousseau, Du contrat social, ou Principes du droit politique, 1762). And if this is the case, the idea of the social contract will not easily support the setting aside of a law of the Knesset.

Another aspect concerns the relationship between the sovereignty of the state and the manner in which it makes use of its powers. If the sovereign has a course of action which, if implemented, will further the safety and welfare of the citizens, not by leaving the stage but by replacing direct action with control and supervision, is it impossible that this method will be consistent with the concept on which the political framework is based? As I have already shown, supervisory tools that are properly exercised may be very powerful. Correct use of them, which is planned in the case before us, will not necessarily result in a reduction of the state’s sovereign power. This use will allow the state to keep in its possession a significant part of the sovereign discretion, the ability to make decisions and exercise discretion in important matters, and the supreme and ongoing duty to ensure that human rights, personal security and public order are preserved. Thus the state can go on to realize the purposes of its existence and carry out its duties faithfully. ‘A privatized state,’ in the words of Prof. Zamir, is not necessarily ‘any less of a state’:

‘The policy of privatization, which has the status of a conceptual approach or a social ideology, has left its mark on the way in which the proper relationship between the state and the citizen is conceived… According to this approach, the public administration does not need to provide services that the private economy is capable of providing efficiently and properly. Therefore, the main role of the public administration, alongside the provision of essential services that the private economy is unsuited to providing or is not capable of providing, is to supervise the provision of the other services by the private economy. In other words, according to this approach, direct administration should be limited, in so far as possible without undermining the quality of the service to the public, and should be replaced by indirect administration, which will ensure that the private activity does not harm the public interest. An accepted analogy in this context speaks of the ship of state; the ship contains both public administration officials and private individuals. According to this analogy, the public administration does not need to pull the oars, but should leave the rowing to private individuals, while it stands at the helm and navigates the ship in the correct direction… It is perhaps possible to call a state that is run in accordance with this approach a “privatized state”’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 82).

The modern state is a developing and changing entity, and the arrangements in force in it also reflect the changes in the times, without this implying that the state has lost its sovereignty. Prof. Zamir goes on to say:

‘The pendulum of services, which has for years moved from the private sphere to the public sphere, recently changed direction, and is beginning to move from the public sphere to the private sphere. There are those who say that the state is currently at a stage where it is changing into a new kind of state — a contract state. Notwithstanding, the state is not expected to lose its status as a main player in social and economic affairs in the near future’ (I. Zamir, Administrative Authority (vol. 1, 1996), at p. 34).

This is the place to consider the idea — which sometimes appears to be merely a wish, but this does not mean that we should not seek to realize it — according to which a proper pattern of privatization is one in which the private concessionaires are regarded as active partners of the organs of government (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 469), in such a way that adds weight to the duty of public trust. It adds but does not detract. Thus, the constitutional and administrative duties that apply to these concessionaires beyond their obligations in the private sphere will also become a part of the broad and extensive structure of the state (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra; G.E. Metzger, ‘Privatization as Delegation,’ 103 Colum. L. Rev. 1367 (2003)).

13. The ambivalence in applying the idea of the social contract to a concrete issue such as the one before us can also be seen from the writings of the main philosophers of the theory, inter alia in those passages that address the sovereign power to punish. The position of the English philosopher Thomas Hobbes, who was the first to lay the foundations of the theory of the social contract, is perhaps the closest to the position of the petitioners. In his work Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil, 1651, Hobbes listed what he called the rights given exclusively to the sovereign, including the right to punish, ‘which make the Essence of Soveraignty’ and therefore cannot be forfeited without an express renunciation of the sovereign power (Hobbes, Leviathan, chap. XVIII, para. 12). The task of administering punishment, which also includes the apprehension and imprisonment of offenders, was seen by Hobbes as the sole prerogative of public officials (ibid., at chap. XXIII), and he clarifies that he is speaking of agents of the sovereign — ‘Ministers, in that they doe it not by their own Authority, but by anothers; and Publique, because they doe it (or should doe it) by no Authority, but that of the Soveraign’ (ibid.). But in Leviathan there is another statement, according to which —

‘and whosoever has right to the End, has right to the Means; it belongeth of Right, to whatsoever Man, or Assembly that hath the Soveraignty, to be Judge both of the meanes of Peace and Defence; and also of the hindrances, and disturbances of the same; and to do whatsoever he shall think necessary to be done…’ (ibid., at chap. XVIII, para. 6).

Thus Hobbes apparently left in the possession of the sovereign the choice of the means to be used in realizing his goal. In any case, we should remember that Hobbes’s theories, in addition to the fact that they were written in the seventeenth century and were influenced by the historical circumstances of the time, also include outlooks that are not consistent with — and are even the complete opposite of — those of the modern democratic state.

I shall return to the philosophy of John Locke, the author of the Two Treatises of Government (1690). With regard to the power to administer punishment, he held that every individual who is a partner to the social contract should forfeit his power to punish others ‘to be exercised by such alone, as shall be appointed to it amongst them; and by such rules as the community, or those authorized by them to that purpose, shall agree on’ (Locke, Second Treatise of Government, at para. 127). Locke went on to say:

‘Of other ministerial and subordinate powers in a commonwealth, we need not speak, they being so multiplied with infinite variety, in the different customs and constitutions of distinct commonwealths, that it is impossible to give a particular account of them all. Only thus much… we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the common-wealth’ (ibid., at para. 152).

It follows that there is no fundamental impropriety in the idea of assigning sovereign powers under certain conditions, and each community has different ways of realizing the social contract on which it is based.

I shall conclude this short and inexhaustive discussion by referring once again to the teachings of the Swiss-French philosopher Jean-Jacques Rousseau. In his aforementioned work, Du contrat social, ou Principes du droit politique (1762), he described the state as a combination of the strength, rights and wills of the individuals, and gave it the power to lead society to a life of peace and welfare, according to the general will. But even Rousseau did not explain the content of this general will, and it may be assumed that this was for the reason that it may change from time to time and from one society to another.

To the aforesaid I would add that although the importance of the social contract theory is not disputed, the many ideas relating to it are merely a part of a broad spectrum of ideas regarding political philosophy, and it has not infrequently been the subject of criticism. The Scottish philosopher David Hume, for example, argued in his work Of the Original Contract, 1748, that the social contract is nothing more than a conceptual development that was intended to justify the outlooks of its authors or to explain the prevailing political situation, but it lacks universal application. Hume thought that the basis for the existence of states is not a valid agreement between their inhabitants, which was never actually made, but the pragmatic realization of human beings that compliance with sovereign power is preferable to a state of anarchy. Therefore, civil societies continue to exist even when the sovereign who stands at their head does not meet the needs of the public in the optimal manner, and even when they are conquered by a foreign ruler (David Hume, ‘Of the Original Contract,’ in Three Essays, Moral and Political, 1748). Approaches of this kind can also be found in modern-day philosophers, who hold that the idea of the social contract does not correctly define the existence of the political society, which is not based on a real contract between its citizens (F. D’Agostino, ‘Contemporary Approaches to the Social Contract,’ in Stanford Encyclopedia of Philosophy (1996, revised 2008)). Much more could be written about the variety of outlooks concerning the proper image of the state, in which we could mention the approaches of socialist philosophy, according to which many activities of the state should not be abandoned to market forces, and by contrast libertarian philosophies that seek to reduce the scope of state intervention in the lives of individuals to a minimum. Thus there are different outlooks on both sides of the political spectrum.

The main point is that an attempt to rely on a general reference to the ‘social contract’ as support for an approach concerning the process of privatization will, in my opinion, have difficulty in succeeding. It is admittedly possible to speak of an ‘Israeli social contract’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 85), but then it will be necessary to give this idea content and outline its boundaries, so that it will be clear to what extent this or any other outlook is incorporated in the concept of privatization.

Even then, even if a strong basis is found for the position that the basic principles of political philosophy support the principle of leaving sovereign power — and especially its most fundamental elements — in the hands of the executive authorities, we shall still need a connecting link that explains in what way that a breach of this principle justifies judicial intervention in an act of legislation. This link may take the form of an express or an implied constitutional provision — possibilities that I shall now consider.

Arguments concerning constitutional values

14. The tools that are used for constitutional scrutiny are limited, and the reason for this is the restraint that this court has imposed on itself with regard to intervention in the acts of the legislative branch. The far-reaching consequences of judicial intervention in a legislative act — the result of the democratic decision of the members of parliament, who are the representatives of the sovereign, i.e., the people — are what dictate this restraint. Unlike administrative scrutiny, which is exercised with regard to appointed government officials that are required to limit their actions to the narrow confines of the law and are not entitled to overstep the authority given therein, constitutional scrutiny focuses on the actual source of the law, either with regard to the manner in which it was enacted, or — which is more complex — with regard to its content.

Much ink has been spilled on the sources of constitutional scrutiny. At various points during its history — and not merely in the age of protected basic rights, as is sometimes thought — it has been a subject that has engrossed Israeli law. Contrary to what some people think, the courts, and especially this court, have acted with considerable restraint and with great caution in applying it. There are those who try to portray this involvement in constitutional scrutiny as a struggle of titans over the sources of influence and power. In reality, it is more similar to walking on eggshells. The great importance of legislative activity and of the activity of its source, the Knesset, runs like a golden thread through the case law of this court.

The constitutional idea was not invented by the Supreme Court. It was the Knesset that laid down the principles of the legal system in Israel. The mechanisms of entrenchment, both in form and in substance, were introduced into the Basic Laws by parliament. This court followed the instructions of the Knesset when it held that the Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969, violated the entrenchment provision in the Basic Law: the Knesset (HCJ 98/69 Bergman v. Minister of Finance [70]). It followed the instructions of the Knesset when it held that a list whose principles conflicted with what is provided in s. 7A of the Basic Law: the Knesset could not stand for election (EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [71]). The court followed the instructions of the Knesset when it determined that holding someone under military arrest for a protracted period (HCJ 6055/95 Tzemah v. Minister of Defence [5]) or that prejudicial transition provisions for regulating the occupation of investment management (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7]) were inconsistent with the limitations clause laid down by the Knesset in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation — Basic Laws that were deliberately drafted by members of the Knesset and that were enacted after comprehensive deliberations in the plenum of the Knesset and in committees.

15. There are different opinions regarding the theory underlying the restriction that the Knesset imposed on its power of legislation (CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8]; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28]). A case law rule that has been formulated, and which has been affirmed in a host of cases that have come before the courts in almost a decade and a half since, is that the Knesset has the power to restrict itself not merely with regard to the majority that is required to enact legislation or with regard to other aspects of the legislative process, but also with regard to the substance of the legislation.

Thus, if the decision in Bergman v. Minister of Finance [70] reflected what may be called the first constitutional age, i.e., restricting the legislature to its own instructions regarding formal entrenchment (and see also HCJ 410/91 Bloom v. Knesset Speaker [72]), following the human rights Basic Laws, and in accordance with the express instructions of the Knesset, the second constitutional age began, which is characterized by a recognition of the Knesset’s power to restrict itself with regard to matters of substance, for which the criteria are provided in the limitations clauses (s. 4 of the Basic Law: Freedom of Occupation and s. 8 of the Basic Law: Human Dignity and Liberty). This automatically led to the question of the status of the provisions laid down in the other Basic Laws in relation to ‘ordinary’ legislation of the Knesset. Justice I. Zamir addressed this for the first time in HCJ 3434/96 Hoffnung v. Knesset Speaker [3] with regard to the substantive restriction imposed by the principle of equality in the Basic Law: the Knesset. This is what he said:

‘Does one law apply to a violation of a basic right and another law to a violation of the principle of equality in elections to the Knesset? I tend to think that despite the difference in the language of the laws, in this respect there should not be a difference in the meaning of the laws. Indeed, equality in the elections is a central value, and it deserves maximum protection, like that of the most important constitutional values, like that of basic human rights, like that of human liberty and human dignity. But I do not think that equality requires absolute protection, beyond the protection given to basic human rights, since equality, like basic human rights, is not an absolute right… It may therefore be possible that there is a basis for saying that a violation of substantive equality, in the context of the elections to the Knesset, is a violation of the equality of opportunities that does not satisfy the threefold test: the values of the state, a proper purpose and proportionality. Such an interpretation will lead to a proper harmony between the laws that lay down the constitutional values, which the interpreter seeks to achieve’ (ibid. [3], at p. 70).

16. This idea has been adopted in recent decisions of this court and has become established case law. It has been held that by means of an analogy it is possible to import into the provisions of Basic Laws that do not relate to rights of the individual a ‘judicial limitations clause’ by means of which legislation will be examined in accordance with core values on which the Basic Law is based:

‘The threefold test of the limitations clause has been regarded by our judicial consciousness as a proper tool for examining the constitutionality of legislation. Now that it is one of the basic principles of our constitutional system, the court is entitled to apply it even when there is no limitations clause in the Basic Law in relation to which the legislation under scrutiny is being examined’ (per Justice E. Mazza in EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [73], at p. 811).

See also the interim decision in HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [74], at p. 106 {170}; HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [75], at p. 755; HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [76], at p. 539; HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister [77], at para. 6 of the opinion of President A. Barak; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at para. 53 of the opinion of President Barak.

This development led to a new chapter — a third age — in the constitutional law of the State of Israel (see A. Bendor, ‘Four Constitutional Revolutions?’ 6 Law and Government (Mishpat uMimshal) 305 (2003), at p. 306). In this, not only has it transpired that the Knesset, as the author of the Basic Laws, has the power to protect basic provisions by means of the tool of formal entrenchment, and not only does it have the power to protect basic rights against executive acts that violate them, but additional constitutional values enjoy substantive protection, the limits of which still remain to be ascertained. With regard to the constitutional protection of these additional values, it has been argued that the idea of a case law limitations clause, which derives its form from the limitations tool mandated by the Knesset in the human rights Basic Laws, has been raised until now in the context of values, which even if they are not enshrined in the Basic Law: Freedom of Occupation or the Basic Law: Human Dignity and Liberty, are conceptually related to the idea of the protection of rights. The following was said by Prof. A. Barak several years ago:

‘Indeed, the elevation of all the Basic Laws — and not merely those relating to human rights — to a super-legislative constitutional status requires a recognition of judicial limitations clauses in all those cases where these Basic Laws determine human rights… When the constitutional arrangement does not concern human rights at all, there is no reason to assume ab initio the existence of a judicial limitations clause and each case should be examined on its merits’ (A. Barak, The Judge in a Democracy (2004, Hebrew edition), at p. 352).

This qualification needs to be reconciled with the finding that constitutional scrutiny applies also to ‘government arrangements provided in a Basic Law (such as the Basic Law: the Government)’ (per President Barak in United Mizrahi Bank Ltd v. Prime Minister [77], at para. 6), and also to ‘a finding that is implied by the Basic Laws (such as a violation of the principle of the separation of powers and the independence of the judicial branch)’ (per President Barak in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], at para. 73 of his opinion). Personally, since I am of the opinion that the principle of the Knesset having the ability to restrict itself applies to all those values that the Knesset thinks should to be protected against the passing majority, on the one hand, and that no value is absolute but only relative, on the other, I see no basis for making a distinction between values relating to human rights and other important values. I am prepared to assume that a limitations clause, in the form accepted by our constitutional law, will apply in determining the limits of the protection of all those constitutional values, i.e., even those constitutional values that express an important public interest that does not involve rights. I will even say the following: I see no reason for concern that this will lead to basic rights losing their special status in our law (cf. the remarks of Justice Dorner in CrimFH 2316/95 Ganimat v. State of Israel [51], at p. 645). Obviously, not every public interest should be recognized as a constitutional value, and those that should can find their proper place relative to constitutional rights in so far as a conflict between the two will arise. In A v. Haifa Civil Servants Disciplinary Tribunal [76] the court did indeed consider, albeit in obiter, the difficulty that arises prima facie when an act of legislation is required to satisfy the tests of two limitations clauses in two Basic Laws that enshrine values that conflict with one another (see the remarks of Justice Dorner, ibid. [76], at p. 541). Notwithstanding, I am of the opinion that a solution to this problem can be found in the principle of constitutional harmony, which is presumed to lead to uniformity in the result of scrutiny of the law in relation to each of the limiting principles (and see the position of President Barak in that case [76], at p. 539).

17. I have only discussed all of the above for the reason that the basic principle on which the opposition to the privatization of prisons is based — that the sovereign authorities should have a monopoly on sovereign power — may be regarded as a basic constitutional principle even though it does not directly relate to human rights. The same is true with regard to the idea that undermining the symbols of sovereignty — for example by allowing prisons to be run by employees of a private concessionaire who will not wear state uniforms or don its symbols — may obscure the representative character of the state authorities, its image and its status as the source of the power to impose sanctions, thereby leading to a contempt for the law, enforcement and sentencing (D. Shichor, ‘Private Prisons in Perspective: Some Conceptual Issues,’ 37 Howard Journal of Criminal Justice 82 (1998), at p. 93; J.J. Dilulio, ‘The Duty to Govern: A Critical Perspective in the Private Management of Prisons and Jails,’ in Private Prisons and the Public Interest 155 (D.C. McDonald, ed., 1990), at p. 174).

However, within the framework of the construction that I have just discussed, the condition for this is that these and similar principles will find a foothold in one of the provisions of the Basic Laws (other than the Basic Law: Human Dignity and Liberty and Human Dignity: Freedom of Occupation). It might be argued that these principles are based on the provision at the beginning of the Basic Law: the Government, which states:

‘Nature

1. The government is the executive branch of the state.’

However, I think that some of my colleagues rightly pointed out that ‘there is a difficulty in finding a constitutional basis in s. 1 of the Basic Law: the Government for the power of imprisonment as a core government power that cannot be transferred’ (para. 3 of the opinion of my colleague Justice Hayut, supra), since it is ‘essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system’ (para. 63 of the opinion of my colleague the president). I also think that it is going too far to introduce into this provision far-reaching institutional arrangements, which provide a basis for the existence of the political society and reflect protected constitutional values.

This conclusion can be seen, first, from the legislative history of the Basic Law. The discussion of the nature of the first section was brief and inexhaustive, and as can be seen from the Knesset debates before the Basic Law was enacted, s. 1 was intended to be a ‘declarative section that does not intend to exhaust all of the functions of the government’ (minutes of the subcommittee of the Constitutional, Law and Justice Committee of the Knesset of 29 Shevat 5728 (28 February 1968)). From the drafting of the other clauses of the Basic Law, which sometimes are phrased in no uncertain terms, it can be seen that when the Knesset wished to do so, it knew how to define the powers of the government precisely and specifically.

Second, and more importantly, the meaning of the section may be seen from the way in which our law works in practice, which is not consistent with the explanation give by the petitioners. Prof. Zamir said:

‘The impressive declaration [in the aforesaid s. 1] is imprecise. If it intends to say that the government has the role of implementing laws, as opposed to legislative and judicial functions, it is imprecise, since the government often carries out legislative and judicial functions also. If it intends to say that only the government implements the laws, this too is imprecise, since additional bodies are involved in the implementation of the laws… and if it intends to say merely that the government is the third branch of state, which completes the full complement of the branches of the state, this too is a description that leaves something to be desired, since the government is only a part, albeit a central part, of the third branch’ (Zamir, Administrative Authority, supra, at p. 328).

Even if I read the provision of s. 1 literally, in a parliamentary democracy the executive branch is the branch responsible for the implementation of the norms that are determined by the legislative branch (see Locke and Rousseau, supra; E. Rubinstein, Paths of Government and Law (2003), at p. 92; M. Cohen, General Powers of the Executive Branch (2008), at p. 8). If the Knesset determined, therefore, that the government would transfer a part of the power of imprisonment to private enterprises, and that instead it would focus its activity, as the executive branch, on the control and supervision of those enterprises, without losing its power to cancel the privatization process at any time, I find it hard to understand how this conflicts with the constitutional role of the government. This does not mean that the Basic Law: the Government, including s. 1 thereof, does not enshrine constitutional values, but merely that ascertaining what those values are goes beyond the scope of this case, and should be left to the proper time. In this regard, the remarks of Prof, Barak-Erez are apt:

‘Of course, the Basic Law enterprise has not yet been completed, and those Basic Laws that exist do not address the question of what are the issues that the state and its organs must administer and what may be entrusted to the responsibility or the implementation of private enterprises. In practice, it is hard to expect there to be detailed arrangements in this sphere, even if the work of the Basic Laws were completed. The constitutions of other countries do not contain concrete provisions regarding the spheres of activity of the public administration. Accordingly, decisions [concerning privatization] are usually regarded as policy decisions’ (Barak-Erez, ‘Human Rights in an Age of Privatization,’ at p. 211).

But even were we to follow the petitioners’ approach, then, in my opinion, we should put the proposed principle to the test of the judicial limitations clause, and this would lead to the conclusion that in the absence of data that we could scrutinize with the aid of this legal tool, the scrutiny is premature. If it were found, for example, that the proposed arrangement allows the government to retain in its possession a sufficient degree of control over the imprisonment of the inmates in the private prison, would it be possible to determine with certainty that this constitutional principle, according to the petitioners, has been violated? For these reasons, I am of the opinion that, even in a written constitutional provision in the same vein as the provisions that protect human rights, there would currently be no basis for setting aside the amendment to the Prisons Ordinance at this time.

The argument concerning the basic values of the legal system

18. A discussion of the fundamental problem that lies, in the opinion of many, in the delegation of the power of imprisonment to a private concessionaire, creates a basis for the belief that even in the absence of a written constitutional source the necessary outcome would be that the law should be set aside. It is therefore impossible to escape the conclusion that according to those who hold this opinion, an alternative proposition, that would serve to develop judicial tools of a kind that has not yet been accepted in case law, would allow judicial intervention to eradicate that fundamental problem.

An idea of this kind is not unrealistic. It is also not new. It has a clear and express foothold in remarks uttered in the past by justices of this court, in minority opinions or in obiter. The misgivings of Justice Barak in this regard in Laor Movement v. Knesset Speaker [44] are well known:

‘What is the validity of a law that conflicts with basic principles, such as the principle of equality? The question is relatively “simple” if the basic principles are enshrined in a rigid constitution or in an entrenched Basic Law. But what is the law if there is no rigid constitution, and there are no entrenched Basic Laws: is an “ordinary” law capable of determining an arrangement that conflicts with the basic principles of the system? … In principle and in theory, there is a possibility that a court in a democracy will set aside a law that conflicts with basic principles of the legal system… [but] according to the social and legal outlook that is accepted in Israel, the court does not assume this power to set aside a law that conflicts with basic principles of our legal system. It is not desirable that we should depart from our approach… at this stage of our national life’ (HCJ 142/89 Laor Movement v. Knesset Speaker [44], at pp. 551, 554, and see also the references cited there).

A similar conclusion was reached by President Barak in the yeshivah students case (Movement for Quality Government in Israel v. Knesset [19]), in which he said, as my colleague Justice Hayut has already mentioned above, that —

‘We should do all we can to decide questions of the constitutionality of a law that conflicts with basic values within the context of a decision regarding the constitutionality of the law in relation to a Basic Law. Israel is currently in the middle of a constitutional process that is being carried out through Basic Laws. Every interpretive effort should be made to decide the question of the constitutionality of the law within the framework of the arrangements provided in the Basic Laws’ (ibid. [19], at para. 73 of the opinion of President Barak).

But if at this time our ‘national life’ implies a different approach, an expression of this can be found in the position of Vice-President M. Cheshin, who considered in Movement for Quality Government in Israel v. Knesset [19] the constitutionality of the Deferral of Service of Full-Time Yeshivah Students, 5762-2002. In his remarks, which are consistent with his position in United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 545, he said:

‘The legal pyramid is built on the fundamental values of society and the state. These values nourish at the roots the norms prevailing in the state, without which the state could not exist. Even the Knesset, which itself exists by virtue of those values, will bow its head before them. [We should recognize] a possibility — admittedly, an exceptional possibility — that the basic principles as such will decide a legal dispute that undermines basic values of the state’ (ibid. [8], at para. 11 of his opinion).

Vice-President Cheshin went on to consider the relationship between those fundamental values and the Basic Laws that had already been enacted:

‘The Basic Laws are the most exalted laws in the legislative and legal fabric of the state, both in their essence and partially also in their formal strength. This is the case, even according to those who think — and I am one of them — that the Knesset does not have constituent power. But even the Basic Laws are not at the summit of the pyramid, or perhaps we should say, at its lowest foundations. They are surpassed by basic principles in our lives — principles from which even the Basic Laws derive their life-force. These principles are principles of natural law and principles of the theory of Jewish democracy. These are what watch over us from the highest heights’ (ibid. [8]).

A similar expression of this idea served as the basis for the decision of this court four years earlier to the Bergman case in EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [78]). There, admittedly, no law of the Knesset was set aside, but basic principles of the legal system resulted in the prospective frustration — in the sense of a ‘future voidance’ — of future laws ‘that undermine the existence or integrity of the state’ (ibid. [78], at p. 378).

19. It could be argued that recognizing the existence of basic values of the legal system as a tool for quasi-constitutional scrutiny is inconsistent with the positive constitutional arrangement, according to which what has not yet been included in the Basic Laws amounts to an expression that there is no constitutional protection for those missing values. Those who support constitutional theories that do not place the emphasis on the formal status of the norm, i.e., on the fact that it is written, but only on its content, would argue that this position should be rejected. This idea of a material constitution focuses on the identification of norms that inherently seek to realize the constitutional purpose, and for this reason alone they become a part of the constitution (see, for example, B. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ in Zamir Book on Law, Government and Society (Y. Dotan and A. Bendor eds., 2005) 583; S. Weintal, ‘Eternal Clauses’ in the Constitution: The Strict Normative Standard in Establishing a New Constitutional Order (Doctoral thesis, The Hebrew University in Jerusalem, E. Benvenisti (supervisor), 2005)). Thus, for example, theories will be proposed that regard the constitution as a means of expressing the economic and political theory on which a community is based, or a means of enshrining the narrative on which it is based, since anything that is a part of the constituent elements of that community will be considered a super-legislative norm, whether it is expressly listed in the constitutional provisions or not.

But it seems to me that resorting to these constitutional or quasi-constitutional tools has not yet found a firm foothold in our law. Adopting an approach of this kind amounts to the beginning of a new constitutional era, a fourth age, whose boundaries have not yet been sufficiently outlined, and the same is true of the criteria on which it is based and on the operative consequences of a decision within that framework (see Prof. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ supra, at p. 666). In the yeshiva students case (Movement for Quality Government in Israel v. Knesset [19]), President Barak did indeed say that:

‘Even if there is a narrow field in which it is possible to examine the constitutionality of a law other than within the framework of the Basic Laws, this restriction on the power of the legislature applies in special and exceptional cases where the constitutional change undermines the essence of democracy and denies the minimum characteristics necessary for a democratic system of government’ (Movement for Quality Government in Israel v. Knesset [19], at para. 73 of his opinion).

But the characteristics of a scrutiny of this kind have not yet been discussed, and a limitations clause is not merely designed to limit the legislature, but also the scope of the constitutional scrutiny exercised by the judicial branch. We are therefore entering a legal field that has not yet been fully ploughed, and if it has been ploughed, it has not been fully sown, and if it has been sown, the time of harvest has not yet arrived, since this issue has only been addressed in a limited number of cases and has not become established case law. It is possible that it is also for this reason that my colleagues decided to focus their consideration of this case on rights, a very fertile soil which has been well cultivated in our legal system.

20. But if there is a difficulty in adopting at this time a constitutional position that examines the privatization of a prison from the perspective of the basic values of the legal system, it too is subject to a premature decision. The basic principles of the legal system, the constituent values, if you will, are not subject to perpetual immutability. Even if they are not exposed to the whims of passing trends, they develop and change just as a new page is written from time to time in the story of the nation. It is difficult, in my opinion, to accept the finding that an innovative idea of privatization, which only recently hatched in the nest of the law, is doomed by the basic principles of the legal system even before it has spread its wings. Were this idea given sufficient time, and especially if it were regarded as a success, who can say that it would not be welcomed and become an integral part of the accepted principles of our legal system, just as other expressions of the idea of privatization have been incorporated in it? It is also for this reason that, in my opinion, the issue at the heart of this petition should be left to be examined from a satisfactory perspective, which is not yet possible.

Moreover, if we are dealing with fundamental outlooks, is there no basis for the question of what the constituent values of our legal system would tell us with regard to the proper scope of judicial scrutiny? Is the approach that ‘Such an important and fundamental decision should be made — at this stage of our national life — by the people and its elected representatives’ (Laor Movement v. Knesset Speaker [44], at pp. 554) still valid for deciding this petition? This issue should be considered carefully before it is decided one way or the other.

The question of privatization as a policy issue and public debate thereon

21. I do not want my remarks to be understood as support for the idea of privatization, nor as expressing any reservation with regard thereto. One can conceive of arguments against this idea, such as the argument that the first to be harmed by it, as well as the first to be used by it as social ‘guinea pigs,’ will be the weaker elements of society (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 83, note 63). Like every case of privatization, it is possible to examine the issue from the perspective of the concern of a negative effect on work relations in the economy. And naturally, the question of its influence on the image of the state lies at the heart of the matter. But these claims, contrary to those that I discussed in the previous part of my remarks, basically amount to policy and outlook (see Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at p. 330). As such, these arguments cannot be used — and, in my opinion, have not been used — by this court in its decision. This is not for the reason that the court does not make value-based decisions. We make these when we determine the proper model for defining a protected right (Prof. Medina in ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ at p. 648). We sometimes make these when we examine a violation of a protected right by means of the test of proportionality ‘in the narrow sense,’ or when striking a balance between it and the values of the State of Israel as a Jewish and democratic state. We make value-based decisions in additional contexts. But case law has always sought to keep away from decisions in which the weight of political policy is predominant:

‘The basic premise is that the role of legislation has been given to the legislature. It is the faithful representative of the sovereign — the people. The question is not whether the law is beneficial, effective or justified. The question is whether it is constitutional’ (per President Barak in Israel Investment Managers Association v. Minister of Finance [7], at p. 386).

Indeed —

‘The proper scope of the phenomenon of privatization [is] generally a function of an extra-legal worldview. Consequently, the decision concerning it should be made in the public arena, and in general it should not be removed from the political sphere to the legal one. It is important to maintain the distinction between presenting a civil outlook with regard to actions that should not be privatized and presenting a legal position with regard to actions that may not be privatized. Establishing legal restrictions of a constitutional character should not be the typical way of dealing with all privatization initiatives’ (Prof. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ at p. 466).

In this regard it should be emphasized that there has been great debate in recent years on the subject of privatization. The literature, both legal and otherwise, is considerable and it would seem that the public is not apathetic to what is happening. The subject has been discussed in the Knesset in proceedings that led to the enactment of the amendment to the Prisons Ordinance. The committee responsible for the law — the Internal Affairs and Environment Committee — considered the idea of privatization at length, together with representatives of a wide variety of bodies, including the Israel Prison Service, the Ministry of Finance, the Ministry of Public Security, the Ministry of Justice, the Attorney-General’s Office, the Association for Civil Rights in Israel, academics and even a representative of the petitioners. The deliberations focused not merely on the proposed amendment, but on a variety of subjects relating to the question of privatization in general and privatization of prisons in particular, including overcrowding in Israeli prisons, the likelihood of the idea of privatization succeeding and its economic efficiency, the supervisory mechanisms provided in the law and the question of how effective they will be, economic incentives in the agreement with the concessionaire and the degree of protection for inmates’ rights, as well as the nature and scope of the powers given to the holders of various positions in the private prison. Positions were heard from both camps, and one of the sessions was even devoted to a guest lecture of an expert opposed to the privatization (see the minutes of the meetings of the Internal Affairs and Environment Committee of the Knesset, between the months of December 2003 and March 2004).

In such circumstances as these, when, as I have said, the constitutional scrutiny is premature, my reply to the petitioners is that the ‘conceptual and mental process,’ to use the expression of Prof. Zamir (‘Public Supervision of Private Activity,’ supra, at p. 84), which is inherent in the decision to privatize a prison, should be left to the various fora of public debate. Whether ‘the needs of society and the ways of the leadership of the modern state should limit themselves to the legal frameworks of the past’ (per Justice M. Cheshin in HCJ 1074/93 Attorney-General v. National Labour Court [79], at p. 505), or whether they should find new tools should be left at this stage to the democratic dialogue. It is true that ‘Where the sovereign finds that social and economic conditions justify changes in economic policy by means of a privatization of public services, the sovereign’s right to implement such a policy should be recognized’ (per Justice D. Levin, ibid. [79], at p. 504), but only — I would add — when constitutional conditions so permit.

Finally, regarding the legislative proceedings

22. Rejecting the substantive constitutional argument, with its various aspects, makes it necessary to return to arguments raised by the petitioners in another sphere, with regard to the propriety of the legislative proceedings, and I shall do this briefly. No one denies that the court also has power to exercise judicial scrutiny over proceedings in the Knesset, where a fundamental flaw has occurred (HCJ 761/86 Miari v. Knesset Speaker [80], at p. 873); HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [81], at p. 157). But when it does this, the court acts with caution and restraint, and it will not lightly set aside a law, which is as it should be, in view of the principle of the separation of powers and the exalted status of the legislative assembly (HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [82], at p. 40 {408}).

The petitioners ended their petition with a claim that in the course of enacting the amendment to the Prisons Ordinance major defects occurred, and these go to the heart of the democratic parliamentary process. It was claimed that the sessions of the Internal Affairs and Environment Committee of the Knesset took place very frequently and with undue haste, which prevented the participants from assimilating the material and considering their position in depth. The holding of a tender by the respondents, in which they undertook to compensate the winners if ultimately the privatization process was unsuccessful, before the law was passed, tied the hands of the members of the Knesset, who no longer regarded themselves as free to consider rejecting the idea of the privatization in its entirety. The respondents even refrained, so it is claimed, from presenting to the Knesset the draft tender and the names of the companies that won it, and thereby they undermined the transparency of the legislative proceedings. Finally, in the vote on the approval of the law in the committee, members of the Knesset took part without participating in the deliberations, and one of the opponents of the law was even replaced by another representative of his party, who supported the law.

These claims do not give rise to a ground for our intervention in the content of the law that was passed. First, an examination of the minutes of the deliberations of the Internal Affairs Committee and the comprehensive proceeding that took place as set out above undermine the claim that the members of the Knesset did not succeed in understanding the nature of their decision. Second, even if taking steps to realize the draft law when it was still under consideration was inappropriate, there is no basis for the conclusion that advertising the tender prematurely tied the hands of the members of Knesset or affected their discretion in any other way. Third, this petition focused on the constitutionality of the law, as opposed to the legality of the tender proceedings, an issue that was the basis for another proceeding that took place in the District Court, and in that too the opponents’ claims were rejected. The failure to disclose the tender documents is therefore not a substantive matter, and I fail to see how the lack of disclosure led to a fundamental defect in the legislative proceedings that justifies judicial intervention. Finally, and most important of all, this court has held in the past — per my colleague President Beinisch — that the role of judicial scrutiny ‘is not to ensure that the Knesset carries out the optimal legislative process… [and] also not to ensure that the Knesset carries out a responsible and balanced process for each draft law’ (Israel Poultry Farmers Association v. Government of Israel [82], at p. 54 {426}). Judicial scrutiny limits itself to the elimination of a concern of a serious and blatant violation of the basic principles of the parliamentary system — a departure from the principles of majority decision, free voting, equality between voters and the publicity of the proceeding (ibid. [82]), and I have found no such violation in the case before us. In view of all this, the claims concerning defects in the legislative proceeding cannot stand, and should be dismissed.

Summary

23. ‘Before the court sets aside a law’ — Justice Zamir wrote — ‘it needs to take time to consider the matter, to examine thoroughly the language and purpose of the law and to ensure that it is absolutely convinced that it contains a problem that cannot be remedied’ (Hoffnung v. Knesset Speaker [3], at p. 67). I have not been persuaded, at this time, that the legislature passed a law that contains a problem that cannot be remedied.

It seems to me that this is a case in which it would have been better to have first exercised judicial restraint and allowed the Knesset, public debate and experience to have their say.

Therefore, if my opinion were accepted, we would deny the petition.

 

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

2 Kislev 5770.

19 November 2009.

 

 

[1]    See http://www.justice.gov.il/MOJHeb/SanegoriaZiborit/DohotRishmi for the reports for the years 2001-2008.

HCJ 2245/06

1.            MK Neta Dobrin

2.            MK Ronen Tzur

v.

1.            Israel Prison Service

2.            Yigal Amir

3.            Dr Larissa Trimbobler

 

 

The Supreme Court sitting as the High Court of Justice

[13 June 2006]

Before Justices A. Procaccia, S. Joubran, E. Hayut

 

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

 

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir.

 

Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right.

The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 8.

Knesset Elections Law, 5729-1969, s. 116.

Penal Law, 5737-1977, ss. 1, 48.

Prisons Ordinance [New Version], 5732-1971, ss. 25, 56(30), 58, 76.

Release from Imprisonment on Parole Law, 5761-2001, ss. 9, 10.

 

Israeli Supreme Court cases cited:

[1]          LHCJA 3172/99 Amir v. Israel Prison Service (unreported).

[2]          LHCJA 5614/04 Amir v. Israel Prison Service (unreported).

[3]          HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[4]          LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) (unreported).

[5]          HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [2003] IsrSC 57(1) 419.

[6]          CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

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

[8]          LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[9]          CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[10]        LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[11]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[12]        LHCJA 3713/04 A v. State of Israel (not yet reported).

[13]        LHCJA 1552/05 Hajazi v. State of Israel (not yet reported).

[14]        LHCJA 8866/04 Hammel v. Israel Prison Service (not yet reported).

[15]        PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[16]        PPA 1076/95 State of Israel v. Kuntar [1996] IsrSC 50(4) 492.

[17]        PPA 5537/02 State of Israel v. Sarsawi [2004] IsrSC 58(1) 374.

[18]        PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[19]        HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[20]        LHCJA 4338/95 Hazan v. Israel Prison Service [1995] IsrSC 49(5) 274.

[21]        HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[22]        HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[23]        HCJ 89/01 Public Committee Against Torture v. Parole Board [2001] IsrSC 55(2) 838.

[24]        LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [2005] IsrSC 59(2) 176.

[25]        LHCJA 9837/03 A v. Parole Board [2004] IsrSC 58(2) 326.

[26]        HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[27]        CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

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

[29]        HCJ 9/49 Bloi v. Minister of Interior [1948] IsrSC 2 136.

[30]        HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[31]        HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[32]        HCJ 112/77 Fogel v. Broadcasting Authority [1977] IsrSC 31(3) 657.

[33]        HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

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

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

[36]        HCJ 217/80 Segal v. Minister of Interior [1980] IsrSC 34(4) 429.

[37]        HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[38]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[39]        CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

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

[41]        BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [2004] IsrSC 58(4) 55.

[42]        HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[43]        HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[44]        HCJ 96/80 Almabi v. Israel Prison Service [1980] IsrSC 34(3) 25.

[45]        HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

 

American cases cited:

[46]        Turner v. Safley, 482 U.S. 78 (1987).

[47]        Overton v. Bazzetta, 539 U.S. 126 (2003).

[48]        Hudson v. Palmer, 468 U.S. 517 (1984).

[49]        Pell v. Procunier, 417 U.S. 817 (1974).

[50]        Washington v. Harper, 494 U.S. 210 (1990).

[51]        Skinner v. Oklahoma, 316 U.S. 535 (1942).

[52]        Eisenstadt v. Baird, 405 U.S. 438 (1972).

[53]        Carey v. Population Services International, 431 U.S. 678 (1977).

[54]        Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

[55]        Stanley v. Illinois, 405 U.S. 645 (1972).

[56]        Anderson v. Vasquez, 28 F.3d 104 (9th Cir. 1994).

[57]        Hernandez v. Coughlin, 18 F.3d 133 (2nd Cir. 1994).

[58]        Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).

[59]        Goodwin v. Turner, 908 F.2d 1395 (8th cir. 1990).

[60]        Percy v. State of New Jersey, Department of Corrections, 278 N.J. Super. 543 (App. Div. 1995).

[61]        Gerber v. Hickman, 291 F.3d 617 (9th cir. 2002).

 

English cases cited:

[62]        R. v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 All ER 400.

[63]        R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533.

 

European Commission of Human Rights cases cited:

[64]        X v. UK (1975) 2 D&R 105.

[65]        X v. Switzerland (1978) 13 D&R 241.

[66]        Hamer v. UK (1979) 4 EHRR 139.

[67]        Draper v. UK (1980) 24 D&R 72.

[68]        ELH and PBH v. UK (1997) 91A D&R 61.

 

European Court of Human Rights cases cited:

[69]        Dickson v. United Kingdom, no. 22362/04 [2006].

[70]        Hirst v. United Kingdom, no. 74025/01 [2005].

[71]        Aliev v. Ukraine, no. 41220/98 [2003].

[72]        Evans v. United Kingdom, no. 6339/05 [2006].

 

For the petitioners — S. Ben-Ami.

For the first respondent — I. Amir.

For the second and third respondents — A. Shamay, O. Schwartz.

 

 

JUDGMENT

 

 

Justice A. Procaccia

1.            Yigal Amir, a prisoner serving a life sentence, was convicted of the murder of the late Prime Minister Yitzhak Rabin. He submitted an application to the prison authorities in which he requested permission to send a sperm sample out of the prison in order to enable the artificial insemination of his wife, Larissa Trimbobler. On 5 March 2006, the competent authority at the Israel Prison Service decided to grant the request (hereafter — ‘the decision).

2.            The petitioners, who were both members of the last Knesset, filed a petition against the Israel Prison Service and against the prisoner and his wife in order to cancel the decision. Alternatively, they request that the Israel Prison Service establish a special committee composed of professionals who will consider and examine the conditions required for granting a permit to a security prisoner regarding artificial insemination, which should take into account, inter alia, the factor of the best interests of the child that will be born and examine the consent and ability of the wife to take responsibility for raising him, and it should make recommendations in this regard. We were also asked to stay the decision of the Israel Prison Service that is the subject of this petition until the proceedings in the proposed committee are completed. As a third option, the petitioners request that they be allowed to table a draft law in this matter, and that the implementation of the decision should be stayed in the interim.

Background

3.            The respondent was convicted of the murder of the late Prime Minister Yitzhak Rabin and of the wounding of his bodyguard in aggravated circumstances. He was sentenced to life imprisonment and to an additional six years imprisonment. He was also convicted in another trial of conspiracy together with his brother, Haggai Amir, and another person, Dror Edni, to murder the prime minister, and of conspiring with them to assault residents of Arab towns and Palestinian police personnel in Judaea and Samaria. For this conviction he was sentenced to an additional eight years imprisonment, to be served consecutively.

4.            Because of the nature of the risk presented by Amir, he was classified by the prison authorities as a ‘security prisoner.’ This classification led to the imposition of various restrictions upon him, of which the main ones are that he is held separately from other prisoner, surveillance cameras are installed in his cells and there are visitation restrictions. Various objections by Amir to these restrictions were rejected (LHCJA 3172/99 Amir v. Israel Prison Service [1], PPA (BS) 2077/01, and see also PPA (TA) 2853/05-A). Notwithstanding, Amir’s application to allow him to have meetings with the third respondent, his wife, was approved by the court; this was because, inter alia, no evidence was presented with regard to her activity (PPA (BS) 2077/01).

5.            In January 2004, Amir submitted a request to the Israel Prison Service to be allowed to marry Larissa and to have conjugal visits with her. When the response was slow in coming, Amir filed a prisoner’s petition in this matter to the Tel-Aviv District Court. In response to the petition, the Israel Prison Service gave notice that it decided to deny the request for conjugal visits, and that it had not yet formulated a position on the question of marriage. The District Court, in reliance on privileged intelligence information, decided to deny Amir’s petition with regard to conjugal visits. Amir applied for leave to appeal this decision in the Supreme Court, which denied the application (LHCJA 5614/04 Amir v. Israel Prison Service [2]; hereafter — LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits)). In its decision (per Vice-President M. Cheshin), the court examined the conflict of values between the right of a human being to conjugal visits, and the interest of state security that is likely to conflict with it, and it evaluated their weight in order to balance them. The court found that in the circumstances of the case there was a real concern that allowing conjugal visits between the couple would lead to a security risk. It said that the great risk presented by Amir had not decreased since he committed the offences for which he was serving his sentence, and he remained committed to the terrorist ideology that he espoused in the past. The court also found that Amir was the subject of adulation and a role model in certain circles, there was concern that unsupervised meetings with his wife would be abused in order to transmit messages in the spirit of his extreme views, and that he would thereby influence others to carry out extreme acts of the kind that he committed. The concern regarding security interests was greater, in the opinion of the court, because of information that was submitted, according to which Larissa had independent contacts with extreme activists who identified in their ideologies with Amir’s beliefs. All of this led to the court’s conclusion that the refusal of the competent authority to allow Amir conjugal visits with his wife was reasonable and proper. The question of Amir’s right to marry his wife was not decided in that case, since at that stage the decision of the Israel Prison Service on this matter had not been made. At a later stage Amir and Larissa married by proxy, and on 10 July 2005 the marriage was declared valid by the Rabbinical Court.

6.            On 27 July 2005 Amir made a request to the Israel Prison Service to allow him to carry out procedures for the purpose of artificial insemination treatments for his wife, in order to allow them ‘to realize their desire to bring children into the world,’ and he produced a medical certificate in this regard as required by the authority. On 3 January 2006, before a decision was made with regard to the request, Amir filed a prisoner’s petition in which he applied ‘to carry out artificial insemination with his wife, Ms. Larissa Trimbobler.’ On 5 March 2006, after considering the legal position, the Israel Prison Service decided to approve Amir’s request. The following is the language of the decision:

‘1.           After the petitioner’s request has been examined [it has been decided] to allow the petitioner to send sperm outside the prison for the purpose of the artificial insemination of Ms. Larissa Trimbobler.

2.            The transmission of the sperm sample will be allowed within the framework of a visit by Ms. Larissa or within the framework of a visit by another person who is permitted to visit the petitioner.

3.            Nothing in the aforesaid amounts to consent for the prisoner to be allowed outside the prison for the purpose of any fertility treatments or for other fertility treatments to be administered in the prison, something that was not even requested by him.

4.            It is also clarified that no change whatsoever will be allowed in the rules governing the terms in which the petitioner is held, including the number of visits to which the petitioner is entitled.

5.            If you wish to clarify anything concerning the manner of transmitting the sperm sample, we ask you to refer the matter to us and the matter will be examined by us.’

The petition before us is directed against this decision.

The arguments of the parties

The arguments of the petitioners

7.            The petitioners’ arguments are composed of several strata: first, they argue that the Prison Service Commissioner does not have the authority to grant a permit to a security prisoner to transmit a sperm sample for the purpose of insemination within the framework of the powers given to the Commissioner under the Prisons Ordinance, which gives him power to regulate matters of prison administration and discipline. According to the petitioners, a permit for artificial insemination, if at all, should be found in express legislation and not in administrative guidelines, and therefore the decision of the Israel Prison Service concerning Amir should be set aside because it was made ultra vires. Alternatively, even if the decision was made intra vires, it should be set aside on the merits because it is immoral and violates the basic outlooks of an enlightened society. It is not right to allow the murderer of a prime minister, who has not expressed regret for his despicable act, to give life to a new generation of his progeny and to bequeath the heritage of his despicable beliefs through his child. This decision, so it is alleged, departs from the natural rules of justice, runs contrary to administrative reasonableness and is also contrary to the rules of equality between prisoners, since it was made without carrying out a process of properly examining the right of all security prisoners to have children. The petitioners further argue that a prisoner has no inherent right under the law to create a family while he is in prison. Giving permission for artificial insemination by a prisoner constitutes a privilege that requires the discretion of the competent authority in the specific case, and this should be exercised by balancing the wishes of the prisoner to bring children into the world with maintaining discipline in the prison. In this case, no balance was made between these values, and for this reason also the decision is defective. Amir’s special personal circumstances, the seriousness of his actions, his current attitude to his actions and his conduct in the prison were not considered. In giving this kind of permission, the authority should also consider questions of the parental capacity of the mother to raise on her own the child that will be born, as well as the interests of the child, and no weight was given to these matters in the decision of the Israel Prison Service. Finally, the petitioners argue that the unreasonableness of the decision is also reflected in the fact that no weight was given to the serious injury to the feelings of the public that will be caused by granting this permission, in view of the deep abhorrence felt by the citizens of Israel towards Amir for his despicable acts.

The position of the state

8.            The state’s position is that there is no basis for intervening in the decision of the Israel Prison Service to allow Amir to send a sperm sample out of the prison for the artificial insemination of his wife. According to case law, a distinction should be made between restrictions on human rights required by the actual imprisonment, such as a restriction on the freedom of movement, and restrictions on other rights that are not inherent to the imprisonment and are not limited by an express provision of statute. A restriction on the ability of the prisoner to provide a sperm sample for artificial insemination is not inherent to the actual imprisonment, and there is no provision of statute that prohibits or restricts it. In the absence of such an express provision of statute, and in the absence of a security reason or any concern of prison discipline that requires such a restriction, there is no basis for denying Amir’s request to give a sperm sample to his wife. In the course of the hearing, the state gave notice that the Israel Prison Service intends in the near future to formulate a general procedure concerning the sending of sperm samples by prisoners to their wives.

The position of the second and third respondents

9.            The argument of the second and third respondents, Amir and his wife, is that even if we assume that the offences that Amir committed are despicable offences, there is no legal or moral basis for depriving them of the right to have children. The sentence imposed on Amir is limited to depriving him of his freedom for his whole life; it does not extend to the basic right to have a family and to bring children into the world, nor does it permit these to be restricted without a conflicting consideration of great weight. A prisoner retains his human rights as long as there is no public interest of great weight that justifies depriving him of them, and in this case there is no such interest. The consideration of the best interests of the child, which was raised by the petitioners as a reason for denying Amir his right to hand over a sperm sample, is unfounded, since it is clear that the wife has full parental capacity, and this assumption has not been rebutted.

Decision

10. A prisoner serving a life sentence, who has been convicted of the despicable murder of a prime minister, wishes to realize the right to have children by giving a sperm sample to his wife outside the prison. The Israel Prison Service granted his request, while stipulating certain conditions for it that concern the administrative arrangements of the prison. Were there any defects in this administrative decision that justify the intervention of this court to amend it or set it aside?

In view of the petitioners’ arguments, it is clear that we are required to examine the validity of the commissioner’s decision in two respects: the issue of authority and the issue of administrative discretion. With regard to the issue of authority, the question is whether the commissioner required express authority under the law to grant permission to a prisoner to transfer a sperm sample to his wife outside the prison. With regard to the issue of discretion, the question is whether the decision is reasonable and proportionate; were all the relevant considerations and no others taken into account? Was the balance between the relevant considerations a proper and proportionate one, in view of the fact that we are concerned with a basic right which can only be violated if the tests of the limitations clause in the Basic Law: Human Dignity and Liberty are satisfied?

I will start with my conclusion and say that the commissioner’s decision was made intra vires and it contains no departure from the powers given to him by law; the decision on its merits is founded on relevant considerations, it is reasonable and proportionate and it does not contain any defect that justifies judicial intervention.

The following are my reasons.

The commissioner’s powers — a normative outline

11. Does the commissioner’s decision to allow Amir to hand over a sperm sample fall within the scope of his authority under the law? Is special authorization required in the law in order to give this permission, such that without such authorization the permission falls outside the scope of the authority’s power?

There is currently no express statutory arrangement with regard to the right of a prisoner to give a sperm sample to his wife for the purposes of insemination outside the prison. Notwithstanding, the existence of such a legislative arrangement is not a precondition for permitting this, for the following reason: according to general constitutional principles of law, a person in Israel has constitutional human rights. These are reflected, inter alia, in the Basic Law: Human Dignity and Liberty (hereafter — ‘the Basic Law’), which enshrines some of the human rights and gives them a super-legislative status. These rights include the human right to dignity, from which the right to family and parenthood is derived.

The constitutional outlook that focuses on the protection of human rights is based on the assumption that the constitutional rights of a person are not absolute, and sometimes there is no alternative to allowing a violation of them in order to realize a conflicting essential public interest. In circumstances where tension arises between a human right and a conflicting public purpose, a balance needs to be struck between them for the purpose of finding the balancing point that will reflect the proper relative importance of the conflicting values. The tests in the limitations clause in s. 8 of the Basic Law are what define the criteria for a permitted violation of the Basic Law, and they are an essential tool for properly balancing the right and the public interest, whose realization necessarily involves a violation of the right. A violation of the right will only satisfy the required constitutional test if the act that violates the right is done pursuant to statute, is consistent with the values of the state, is for a proper purpose and satisfies the test of proportionality.

This normative constitutional basis also lies at the heart of the proper approach to the rights of prisoners who have been sentenced to imprisonment, including those serving a life sentence. It is an established rule that a criminal sanction, including imprisonment, does not automatically deprive someone serving a sentence or a prisoner of his human rights, except to the extent that the restriction of those rights is necessarily implied by the imprisonment and is consistent with the nature of the permitted constitutional violation in accordance with the limitations clause.

The Prison Service Commissioner was given his powers under the Prisons Ordinance [New Version], 5732-1971. Beyond the specific powers given to the competent authority in the Ordinance, the Israel Prison Service is responsible for administering the prisons, guarding the prisoners and doing everything required by these duties (s. 76). The prisons and the warders shall be under the command and management of the commissioner, subject to the directives of the minister (s. 80). The authority of the commissioner extends to the organization of the prison service, administrative arrangements, prison management, discipline and ensuring the proper functioning of the service, and he is authorized to issue general orders in this regard. Within the scope of its authority, the Israel Prison Service is subject to the general principles of the constitutional system and to the fundamental constitutional recognition of human rights and the rights of prisoners that derive therefrom. The restrictions that it is authorized to impose on the prisoners derive from the enabling law, which is the Prisons Ordinance, but where these restrictions violate human rights, they must also satisfy the constitutional test of the limitations clause in the Basic Law. When we are speaking of a constitutional human right, which is given by the Basic Law to a person as a human being, we should not look in the enabling law for a right to uphold it, but the opposite: where the authority wishes to restrict it, we should examine whether it has the power to do so and whether the use made of that power amounts to a permitted constitutional violation in accordance with the limitations clause in the Basic Law.

As we shall describe below, the right of a prisoner to be a parent and to have a family is a constitutional human right, which does not automatically cease to exist as a result of the sentence of imprisonment, even though it is likely to be subject to various restrictions as a result of the conditions of the imprisonment. It follows that the Prison Service Commissioner does not need an authorization in the law to permit a prisoner to realize the various aspects of the right to have a family and to be a parent that he has by virtue of recognized basic rights in Israel. It is a refusal to allow a prisoner to realize the right to have children and to be a parent that makes it necessary to satisfy the tests for a permitted constitutional violation. Such a situation will exist where the prisoner’s right to be a parent and to have a family is opposed by a conflicting value of sufficient weight that it justifies denying the right to a proper degree, in view of the relative weight of the conflicting values.

In our case, Amir, like any other prisoner, has a human right to establish a family and to be a parent. He was not deprived of the right to establish a family and to bring children into the world by the actual sentence that was imposed on him, even if the loss of liberty resulting from the imprisonment deprives the prisoner of the ability to realize family life in full. The Prison Service Commissioner therefore does not need an express authorization in order to give practical expression to the realization of this right, which is one of the supreme constitutional human rights in Israel. Had the commissioner denied the basic right, this would have required him to show that there were good reasons that supported the violation, and defining the scope of the violation in accordance with the tests of the limitations clause.

In addition to the scrutiny of the decision from the perspective of the authority to make it, we shall also examine the question of its reasonableness in view of the arguments that were raised. This scrutiny will focus on the question whether the authority addressed the relevant considerations and balanced all the relevant considerations in the case properly. The principles of constitutional scrutiny also apply to the consideration of this question, as we shall make clear below.

Let us examine in greater detail the principles of the normative framework that apply to this case.

Constitutional human rights and the right to family and parenthood

12. The Basic Law: Human Dignity and Liberty enshrines the human rights to dignity and liberty and thereby expresses the values of the State of Israel as a Jewish and democratic state (s. 1A). It provides that the dignity of a person as a human being may not be violated and that every person is entitled to protection of his dignity (ss. 2 and 4); it recognizes the possibility of violating a person’s basic constitutional rights, provided that the violation satisfies the tests of the limitations clause (s. 8). The tests in the limitations clause make the constitutional legitimacy of the violation conditional: it should be done pursuant to statute or by virtue of an express authorization therein; it should be consistent with the values of the state; it should be for a proper purpose and it should not be disproportionate.

Within the scope of the right to human dignity lies the right of a person to have a family and to be a parent (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3]). The right to family is one of the most basic elements of human existence. It is derived from the protection of human dignity, from the right to privacy and from the realization of the principle of the autonomy of the will of the individual, which lies at the very essence of the concept of human dignity. The family and parenthood are the realization of the natural desire for continuity and for the self-realization of the individual in society (LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) [4]; HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [5], at p. 447; CFH 2401/95 Nahmani v. Nahmani [6], at p. 719 {390}). Within the scope of the human right to dignity, the right to family and parenthood is a constitutional right that is protected by the Basic Law (cf. also CA 232/85 A v. Attorney-General [7], at p. 17; LCA 3009/02 A v. B [8], at p. 894; CA 2266/93 A v. B [9], at p. 235).

On the scale of constitutional human rights, the constitutional protection of the right to parenthood and family comes after the protection of the right to life and to the integrity of the human body. The right to integrity of the human body is intended to protect life; the right to family is what gives life significance and meaning. I discussed this in one case:

‘These are first principles; the right to parenthood and the right of a child to grow up with his natural parents are rights that are interrelated, and together they create the right to the autonomy of the family. These rights are some of the fundamental principles of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (A and B (prospective adoptive parents) v. C and D (biological parents) [4], at para. 6 of my opinion).

This right is therefore very high on the scale of constitutional human rights. It is of greater importance than property rights, the freedom of occupation and even the privacy of the individual. ‘It reflects the essence of the human experience and the concrete realization of an individual’s identity’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], at para. 6 of my opinion).

A violation of the right to parenthood and family will be legitimate only if it satisfies the tests in the limitations clause. These tests reflect a balance of the weight of the basic rights against other needs and values that are essential for the existence of proper social life. Basic rights, including the right to family, are not absolute; they derive from the realities of life that make it necessary to give a relative value to human rights and other substantial interests, whether of other individuals or of the public. A harmony between all of these interests is a condition for a proper constitutional system (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [10]). In order for a violation of a human right to satisfy the constitutional test, it must fall within the proper margin of balances, which weigh the right against the conflicting value. The more elevated the status of the constitutional right, the greater the weight of the conflicting interest that is required in order to derogate from or counter the right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], ibid.).

Prisoners’ rights

13. The constitutional outlook that gives human rights a supreme normative status also has ramifications on the human rights of a prisoner, and his ability to realize these rights when he is in prison. The constitutional system in Israel is based on the presumption that a person’s basic rights should not be denied or restricted unless there is a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this. The same presumption also applies to sentences that are handed down to offenders. Its significance is that the protection of human rights is extended to prisoners even after they have been sentenced, and a violation of their rights is possible only where a conflicting public interest of great significance justifies it. Such a violation is recognized only to the extent necessary in order to achieve the conflicting interest, but no more. In this spirit it has been said that:

‘The walls of the prison do not separate the person under arrest from human dignity. Life in the prison inherently requires a violation of many liberties that are enjoyed by a free man… but life in the prison does not necessitate a denial of the right of a person under arrest to bodily integrity and to protection against a violation of his dignity as a human being’ (per Justice Barak in HCJ 355/79 Katlan v. Prisons Service [11], at p. 298).

Restrictions on prisoners’ rights

14. According to the prevailing constitutional system, an offender who is sentenced to imprisonment does not automatically lose all of his human rights. The violation of his rights is limited solely to the degree that it is required in order to achieve the goals of a substantial public interest. These goals include, first and foremost, the purpose of the sentence of imprisonment, which is intended to deprive the prisoner of his personal liberty during the term of imprisonment that was imposed.  By being deprived of his personal liberty, a prisoner suffers a violation of a basic right, but the violation is made pursuant to a law that befits the values of the state; it is intended for the proper purpose of isolating the offender from society for a defined period in order to protect the security of the public from the realization of an additional danger that the offender presents, and to rehabilitate him; the assumption is that it is a proportionate sentence relative to the severity of the offence that was committed and the other circumstances that are relevant to the sentence. Restricting the liberty of a prisoner is an inevitable consequence of the sentence that was imposed upon him, and therefore the violation of liberty receives constitutional protection. The restriction upon personal liberty, which is a consequence of the imprisonment, also gives rise to a necessary violation of certain other human rights that cannot be realized because a person is imprisoned. Thus, for example, the prisoner suffers a violation of his right to engage in his occupation, his right to privacy, and to a certain extent also his right of expression, with all the liberties that derive from it. The violation of human rights that accompanies imprisonment as an inherent consequence thereof is limited solely to an essential violation arising necessarily from the loss of personal liberty, but no more than that.

Another purpose that may justify a violation of a human right of a prisoner concerns the need to ensure the proper administration of the prison and to safeguard the welfare of its inmates. The competent authority has the responsibility to impose various restrictions that are required for managing life in prison in an effective manner, and these include maintaining order, security and discipline in the prison, as well as protecting the security of the inmates, the safety of the warders and the safety of the public from the dangers that are presented by the prison inmates (LHCJA 3713/04 A v. State of Israel [12]; LHCJA 1552/05 Hajazi v. State of Israel [13]; LHCJA 8866/04 Hammel v. Israel Prison Service [14]; and PPA 4463/94 Golan v. Prisons Service [15]). For the purpose of achieving the objective concerned with the proper administration of the Israel Prison Service, the Commissioner is competent to give comprehensive orders with regard to all the aspects of prisoners’ lives, and these may in several respects restrict their personal autonomy in various spheres (PPA 1076/95 State of Israel v. Kuntar [16], at p. 299; PPA 5537/02 State of Israel v. Sarsawi [17], at p. 379; Golan v. Prisons Service [15], at pp. 152 {506} and 172-175 {534-539}).

An additional reason for the restrictions on the rights of a prisoner may derive from other needs that involve an important general public interest, which is not directly related to the prison administration, such as, for example, a need that derives from general reasons of state security that are relevant mainly to security prisoners. Considerations of this kind may make it necessary to impose various restrictions on a prison inmate, which may violate his human rights.

When restrictions that are imposed by the public authority violate the human rights of a prisoner and they do not arise inherently from the loss of his liberty as a result of the imprisonment, they should materially satisfy the tests of the limitations clause in order to comply with the constitutional test. They should be consistent with the values of the state, intended for a proper purpose and satisfy the requirement of proper proportionality.

According to the prevailing legal outlook, a sentence that imposes imprisonment on an offender — and this includes a life sentence — is directly intended to deprive him of his personal liberty for the term of the sentence. The restrictions on the other rights, whether they are inherent to the imprisonment or they are intended to achieve other purposes, are not a part of the purpose of the sentence (PPA 4/82 State of Israel v. Tamir [18], at p. 206; HCJ 114/86 Weil v. State of Israel [19], at p. 483; Golan v. Prisons Service [15], at pp. 152-153 {506}; LHCJA 4338/95 Hazan v. Israel Prison Service [20], at pp. 275-276). The constitutional justification for imposing them depends upon the existence of a public purpose of special importance that justifies the violation in accordance with the tests of the limitation clause (Katlan v. Prisons Service [11], at p. 298). The greater the importance of the human right on the scale of human rights, the stronger the reasons required in order to justify a violation of it (Golan v. Prisons Service [15], at para. 13; HCJ 221/80 Darwish v. Prisons Service [21], at p. 546; HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [22], at p. 573).

It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their inherent purpose is not to increase the severity of the sentence that was handed down to the prisoner. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts. Where this is the purpose of the restrictions, they are likely to fail the constitutional test, since this is not a proper purpose. A restriction that is not required by the realization of the purposes of imprisonment or that is not required by another legitimate public purpose constitutes, de facto, the imposition of an additional sentence on the prisoner for the offence of which he was convicted. Such a restriction that adds to the sentence imposed on the prisoner falls outside the scope of the power to limit the rights of prisoners that is granted to the Israel Prison Service. It is a departure from the principles of criminal sentencing, and especially from the principle of legality that is enshrined in s. 1 of the Penal Law, 5737-1977, according to which there are no offences or sanctions unless they are prescribed in statute or pursuant thereto. The penal sanction takes the form of the actual loss of freedom of movement in a prison, which is determined by the court that handed down the sentence; in view of this, the Israel Prison Service is not competent to add a punitive measure to the sentence that was handed down (ss. 9 and 10 of the Release from Imprisonment on Parole Law, 5761-2001; HCJ 89/01 Public Committee Against Torture v. Parole Board [23], at p. 869, and also LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [24], at p. 185; LHCJA 9837/03 A v. Parole Board [25], at p. 333).

The principles of this approach to the rights of a prisoner in Israel have been expressed in case law over the years. In Golan v. Prisons Service [15], at p. 152 {501-502} the court said (per Justice Mazza):

‘It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law…

The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law.’

(See also HCJ 337/84 Hukma v. Minister of Interior [26], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [27], at p. 81).

The right of a prisoner to family life and parenthood

15. The criminal sanction involved in imprisonment was not intended, in itself, to violate the right of the offender to family life and parenthood directly. Notwithstanding, it is clear that a prisoner is de facto deprived of the physical ability to have a regular family life and thereby to realize the right to family as a result of the loss of his personal liberty that is a result of the imprisonment. The violation of the ability to realize a family life in the prison is inherent to the restriction of liberty, and therefore it lies within the margin of the permitted constitutional violation. Isolating the prisoner from society in order to realize the purposes of the sentence also results in a separation from his spouse, children and wider family circle. But even though this restriction is inherent to the imprisonment, the existence of a human right to family and parenthood requires that the scope of the violation is reduced as much as possible, to its essential limits only, such as by way of giving controlled permission for family visits to prisoners, granting furloughs when defined conditions are satisfied, providing facilities that allow conjugal visits between spouses, etc.. This preserves the proportionality of the violation of the human right, which is inherently required by the loss of liberty resulting from imprisonment.

The right to have children is an integral part of the right to family life. It is given to every human being and a prisoner is not deprived of it merely because of the sentence that was imposed on him. The de facto realization of the right to have children given to a prisoner depends on the question whether there is a public-systemic consideration of sufficient weight that justifies preventing a prisoner from realizing it, whether in general or in a specific case. Whereas a prisoner cannot realize a full family life since it is inconsistent with the restriction of liberty resulting from imprisonment, the right to bring children into the world as such may be consistent with the framework of imprisonment, if certain conditions are fulfilled. The realization of this right may be consistent with conjugal visits between spouses, which are ordinarily allowed when certain conditions are fulfilled, in accordance with the procedures of the Israel Prison Service. Because of the need to limit the violation of the prisoner’s human right merely to the most essential cases, where it is not possible to allow conjugal visits because the prerequisites for this are not satisfied, the prisoner may be left to realize his right to be a parent by way of artificial insemination outside the prison, which does not require a conjugal visit. This possibility is consistent with the purpose of the sentence to keep the prisoner isolated from society, and it does not usually involve a disturbance to the Israel Prison Service administration from the viewpoint of the procedures and resources at its disposal. If, however, there is another reason that justifies the realization of the right to be prevented or restricted, it needs to be a substantial reason that can justify a violation of a human right of the greatest importance, to which even a prisoner is entitled.

The right to have children is a human right that is enshrined in the value of human dignity. This value includes the right of a person to personal autonomy and to self-realization in the form of bringing children into the world. The status of the right to have children imposes on the executive authority a duty to uphold it and to give it significant weight in the course of its deliberations, even when the person seeking to realize it is serving a life sentence in prison. The restriction on the right to have children by means of artificial insemination of the wife outside the prison is not necessarily implied by the restriction of the prisoner’s liberty. Notwithstanding, like all human rights, this right too is not absolute, and it may in certain circumstances give way to conflicting interests of great weight. But in view of the strength of the right, reasons of particular importance are required in order to outweigh it and to justify a violation of it, and the principles used to balance them should be consistent with the conditions of the limitations clause, with the elements of the proper purpose and proportionality that are enshrined therein (New Family Organization v. Surrogacy Agreements Approval Committee [5], at pp. 444-445).

It has been held in the past that:

‘We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation… Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

As an enlightened society, we should ensure that the dignity of the prisoner is upheld and that his rights are protected as long as it does not conflict with the true purposes of the imprisonment or is inconsistent with a public interest of great importance that justifies a restriction of his rights. This duty applies to every prisoner as such. It applies to a prisoner who is serving a short sentence and it applies to a prisoner who is serving a long sentence for serious felonies. It is also the case with regard to a prisoner serving a life sentence for murder, whether the murder was committed against a background of gang wars in the criminal underworld or it is the murder of a prime minister. The same is true of a security prisoner. The set of principles is the same for every prisoner as such, even though the specific application to individual prisoners may vary from case to case according to the conditions and the circumstances.

The power of the commissioner to give permission to hand over a sperm sample — conclusions

16. The premise on which the petition is based is that express authority is required in statute for the competent authority to allow a prisoner to undergo a procedure of artificial insemination with his wife; without this, granting such permission goes beyond the powers given to it under the law. This premise is fundamentally unsound, and it effectively turns the law upside down and undermines basic principles of public and constitutional law. The reason for this is that when a person has a right, and certainly when he has a constitutional right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: it requires an authorization in statute in order to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it should satisfy the tests of the limitations clause as a condition for its validity and legitimacy. Already in HCJ 1/49 Bajerno v. Minister of Police [28], at p. 82, it was held (per Justice S.Z. Cheshin) that:

‘Where an applicant complains that a public official prohibits him from doing a certain act, the applicant does not need to prove that there is a statute that imposes a duty on the public official to allow him to do the act. The opposite is true: the public official has the duty of proving that there is a justification for the prohibition that he is imposing’ (see also HCJ 9/49 Bloi v. Minister of Interior [29], at p. 140; HCJ 144/50 Sheib v. Minister of Defence [30], at p. 411 {14}; HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [31], at p. 1532; HCJ 112/77 Fogel v. Broadcasting Authority [32], at pp. 663-664).

It follows that in our case there is no need to ask whether the Israel Prison Service is competent to permit a prisoner to realize his right to parenthood by means of artificial insemination; at most, we may need to ask whether there is a power to restrict this right, and what is the scope of such a possible restriction in the special circumstances of the case. This question does not arise directly in this case, since the competent authority has recognized and respects the right of the prisoner to parenthood, and it has thereby given expression to a recognition of the human right to family and parenthood that the prisoner has, in so far as possible, even within the framework of imprisonment. It has thereby recognized that the protection of human rights is given to a prisoner in so far as possible, including a prisoner serving a life sentence for a despicable murder, and that the ability to restrict the right does not depend on the nature of the offence but, if at all, on public or systemic purposes that are not a part of the purposes of sentencing. In the circumstances of this case, the commissioner acted within the limits of his authority when he did not find any systemic or other reasons that justify a restriction on the prisoner’s right. His decision relies on recognized basic principles of constitutional law and it gives expression to the right of the prisoner when no basis was found for restricting it.

The decision of the public authority according to the test of reasonableness

17. In addition to the petitioners’ argument that the commissioner’s decision to allow Amir to give a sperm sample to his wife outside the prison was made ultra vires, they also argued that this decision does not satisfy the test of reasonableness. According to this argument, the unreasonableness is expressed first and foremost in the fact that the permission given to Amir to realize his right to have children conflicts with public morality and injures the feelings of the public, when it is given to the murderer of a prime minister; it is also argued that granting the permission ignores the interests of the child who will grow up without a father; finally it is argued that in giving the permission the commissioner did not make a comprehensive examination of the significance of the issue for all prisoners, and in the absence of a general procedure in this regard, he acted in a manner that violates the principle of equality between prisoners.

An examination of the reasonableness of a decision of an administrative authority requires, in the first stage, a clarification of whether it considered factors that are relevant and pertinent to the case; second, we consider the question whether, when making its decision, the authority made a proper balance between all the factors that should be taken into account, and whether a proper relative weight was given to each of these. An examination of the reasonableness of an administrative decision is therefore conditional on a proper balance of the relevant considerations (HCJ 935/89 Ganor v. Attorney-General [33]; HCJ 5016/96 Horev v. Minister of Transport [34], at p. 34 {183}; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [35]; HCJ 217/80 Segal v. Minister of Interior [36]; HCJ 6358/05 Vaanunu v. Home Front Commander [37]).

Where a decision of the public authority violates a human right, an examination of the administrative reasonableness of the decision is conditional upon its satisfying the tests of the limitations clause — proper values, a proper purpose and proper proportionality. The criterion for balancing derives from the limitations clause (Horev v. Minister of Transport [34], at para. 54 of the opinion of President Barak). The elements of the limitations clause are incorporated in the criteria that have been formulated in public law rulings for examining a violation of basic human rights by an administrative authority (HCJ 4541/94 Miller v. Minister of Defence [38], at p. 138 {231}). The court has also held:

‘This connection between the constitutional limitations clause and all the principles of public law — including human rights that are not covered by the Basic Laws… The general purposes are the values of the State of Israel as a Jewish and democratic state. The specific purposes are the “proper purpose” in the limitations clause. The principle of proportionality that is provided in the Basic Law is an additional expression of the principle of reasonableness, according to which we have also been accustomed in the past to interpret legislation. It follows that the transition from the previous law to the limitations clause is “quick” and “clean,” and it involves no difficulty’ (per President Barak in Horev v. Minister of Transport [34], at p. 43 {194-195}).

When an administrative decision violates a constitutional human right, the premise is, first, that the conflicting value whose realization leads to the violation befits the values of the state; second, that this value should be a relevant objective consideration that to a large extent overlaps with the conditions of the ‘proper purpose’ in the limitations clause; and finally, whether in the overall balance proper relative weight was given to the human right, on the one hand, and the conflicting value, on the other, and whether the administrative decision chose a balancing point that properly balances the conflicting values. This is the requirement of proper proportionality in its constitutional sense.

In our case, on one side of the equation is the right of a human being, who is a prisoner serving a life sentence, to realize his right to be a parent by way of fertilizing his wife with a sperm sample that will be sent out of the prison. His application is filed against a background of the refusal of the public authority to allow him conjugal visits with his wife, because of security considerations. The petitioners argue that there are values that conflict with the right of the prisoner to parenthood, which were not given any weight, and therefore the permission that was granted is invalid. These conflicting values are, first and foremost, an outrage to public morals and public feelings that, it is argued, results from permission to have children being given to a criminal who was convicted of murdering a prime minister. Such permission runs contrary to the feeling of natural repulsion that the public feels towards a vile offender of this kind. It seriously injures the feelings of the public, which is repulsed by the despicable offence and the offender who committed it, and which expects that he will spend the rest of his life in prison in absolute isolation, without him being allowed to realize his rights to family and parenthood, or any aspect thereof.

I cannot accept this position. The values that are under discussion, on which the petitioners base their objection to the permission that was given, do not satisfy the test of administrative relevancy or the element of the proper purpose in the limitations clause. The public’s feelings of repulsion towards Yigal Amir for the despicable crime that he committed are, in themselves, understandable and natural, but they are not relevant to the restriction of the right of a prisoner to become a parent by way of artificial insemination. They do not achieve a ‘proper purpose’ that is required as an essential conditional for a violation of a human right.

No one denies that the offence of murder that Amir committed and for which he was sentenced to life imprisonment deserves public condemnation and will be recorded in the history of the state as one of the most terrible offences committed in Israel since its founding. But the seriousness of the offence that was committed, with all of its ramifications, found full and final expression in the criminal sanction that was handed down to Amir. The sentencing considerations that are taken into account within the framework of the sentence lie solely within the sphere of authority of the judiciary, and when the sentence is handed down, the sanctions imposed on the offender are exhausted. The Israel Prison Service does not have jurisdiction to punish the prisoner in addition to the sentence that was imposed on him by restricting human rights that even he has as a prisoner. The argument of showing abhorrence for the base acts of the offence that he committed is insufficient. The public’s feelings of repulsion for an offender who took human life and murdered the state’s leader are also incapable of affecting, in themselves, the scope of the human rights given to him in the prison, and the nature of the permitted restrictions upon them. Basic principles of public morality and the desire for revenge that is felt by a part of the public towards one prisoner or another do not constitute a relevant consideration or a proper purpose for preventing a prisoner from realizing his human right to parenthood, as long as this realization does not amount to a significant administrative disruption in the management of the prison or another relevant violation of a significant public interest that justifies its restriction. The human right is also retained by a prisoner who was convicted of the most terrible offences, and no matter how great the feeling of abhorrence at his acts, it cannot constitute an objective reason for restricting his rights. The strict application of the test for the scope of permitted violations of a human right in accordance with the elements of the limitations clause is what guarantees that the protection of the right does not become neglected; it ensures, especially in difficult cases like the one before us, that the constitutional principles are observed. Since the considerations of public morality, public sentiment and especially the deep abhorrence that most of the public feels towards Yigal Amir for his act are not relevant to a restriction of his right to parenthood and are therefore not a proper purpose, they also cannot serve as an objective conflicting value that may compete with the prisoner’s right to become a parent. Therefore we do not need to consider the question of proportionality, which would have arisen had these considerations constituted a relevant objective reason to restrict Amir’s right and which would have given rise to a need to balance them against his right.

We ought to add in this context that it is precisely because Amir was not given the possibility of conjugal visits by his wife for security reasons that the possibility of realizing his parenthood by being allowed to carry out artificial insemination remains his last resort. These circumstances provide even greater justification for the decision of the Israel Prison Service authorities concerning Amir.

Even the petitioners’ additional argument that Amir should not be given permission because of the damage that can be anticipated to the best interests of the child that will be born to the couple cannot serve as a valid ground for violating the right to parenthood in the circumstances of this case.

The question when the consideration of the best interests of the child may justify preventing his birth is a profound question in the field of ethics and philosophy. The question when the law may intervene in this, and when a public authority has power to intervene in the human right to have a child for reasons of the best interests of the child and for other reasons, is a very difficult and complex one. The right to have a child and the right to be born are concepts that lie to a large extent in the field of morality and ethics that are outside the law. Whether and in what circumstances the Israel Prison Service has a power to restrict the right to have a child against a background of considerations of the best interests of the child is a difficult and loaded question. Thus, for example, a question may arise as to whether the Israel Prison Service may prevent a prisoner’s conjugal visits or the realization of his right to parenthood because of a serious and contagious disease from which he suffers that is likely to infect his wife and child (CA 518/82 Zaitsov v. Katz [39], at pp. 127-128; Nahmani v. Nahmani [6], at pp. 729-30). Is it entitled to restrict the right of women inmates in the prison to have children when they have been sentenced to long terms of imprisonment for the reason that it is not desirable from the viewpoint of the best interests of the child to raise him inside the prison or, alternatively, to condemn him to be placed in a foster home or in an adoption, or to separate him from his mother when he reaches a certain age? Are these considerations that the Israel Prison Service may address and do they fall within the scope of its authority? These questions do not require an answer in this case, since with regard to the best interests of the child it has only been argued that he is expected to be born to a single-parent mother because the father has been sentenced to life imprisonment. This argument has no merit in the specific context. No reasons have been brought before us to show, on the merits, any real grounds why the best interests of a child that will be born from artificial insemination to the Amir couple will be harmed. No basis has been established for the argument that Amir’s wife lacks the capacity to raise a child. Moreover, the raising of a child by a single-parent mother while the father is sentenced to life imprisonment does not in itself indicate that the child’s best interests are harmed, nor does it allow the public authorities to restrict the right of his parents to have children. In the modern world, the single-parent family has become a common and accepted phenomenon, and it does not in itself indicate harm to the interests of the child on such a scale and to such an extent that it justifies the intervention of the public authority in a way that violates the right of individuals to self-realization by bringing children into the world. The mere fact that one of the parents is in prison does not constitute, prima facie, a ground for violating the right of the couple to parenthood and the right of a child to be born, for reasons of his best interests. The remarks of Prof. Shifman in his book Family Law in Israel, vol. 2, at p. 156, are pertinent:

‘… In artificial insemination we are concerned with planning the coming into the world of a child who has not yet been born, in order to realize the expectations of persons to be parents. Is it possible to determine categorically that it would be better for that child not to be born than for him to be born? Will the situation of that child necessarily be so wretched merely because he is born into a single-parent family that for this reason we have a duty ab initio to prevent him from coming into the world?’

In this case, no factual basis was established to show harm to the best interests of the child that may be created as a result of giving the permission to the Amir couple. Therefore the question of balancing the relevant conflicting values to the right to parenthood does not arise, and this argument should be rejected.

18. This leaves the argument that the prison authorities did not conduct a comprehensive examination of the question of prisoners sending sperm samples to their wives, nor did they formulate a general procedure for all prisoners in this regard, nor did they make the proper balances in this regard with regard to the case of Amir, who in their opinion has received better treatment in comparison to other prisoners.

In this matter also the petitioners’ arguments are general and they do not establish a concrete factual basis for the existence of conflicting values to the prisoner’s right, which would justify a restriction or denial thereof. Indeed, the prison authorities have stated that they will take action to prepare general procedures concerning the transfer of sperm samples of prisoners to their wives for the purpose of artificial insemination outside the prison. But their willingness to do this, which is important in itself, has no bearing on the specific decision in Amir’s case, which is reasonable. From the state’s response we see that, first and foremost, it took into account as a relevant factor the right of the prisoner to artificial insemination, and it gave this right the proper weight. There is no real public or administrative need that can be a consideration that conflicts with the prisoner’s right in this case, to the extent that it might justify a violation of the right. The security considerations that were the basis for the refusal of the Israel Prison Service to allow Amir conjugal visits with his wife are not relevant to the transfer of a sperm sample out of the prison, and no other legitimate administrative argument was raised that might justify a violation or restriction of the aforesaid right of the prisoner.

Since there is no important value that conflicts with the prisoner’s right to parenthood, no proportionate balance is required here between relevant conflicting considerations, nor is there a proper reason to violate the prisoner’s human right (see Horev v. Minister of Transport [34], at p. 37 {187}; Ganor v. Attorney-General [33], at pp. 513-514; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [40], at paras. 40 and 41).

In addition, no concrete information was brought before us to support the petitioners’ claim with regard to a violation of equality between prisoners as a result of granting the permission to Amir. Moreover, the concept of equality in this context is loaded and complex, and it may justify possible distinctions between types of prisoners from the perspective of the possibility to realize the right to have children while in prison. Thus, for example, it is possible that there will be a distinction between the ability of male prisoners to realize parenthood by sending sperm samples to their wives for the purpose of insemination and raising children outside the prison, which does not involve any responsibility on the part of the public authority for the birth and raising of the child and does not require any special institutional and budgetary arrangements, and the ability of the authority to allow pregnancies and childbirths of female prisoners in the prison on a large scale, which gives rise to difficult questions concerning the manner of raising and caring for the child after his birth, as well as questions involving resources and budgets that are required for this purpose. This issue involves difficult moral and practical questions that relate both to the prisoners and to the children who are born to a difficult fate. Logic therefore dictates that in this area of realizing the right to parenthood there may be a legitimate distinction between types of prisoner according to various criteria, which should satisfy the constitutional test.

In view of the aforesaid, there is no merit to the petitioners’ argument that the decision of the commissioner to permit the transfer of Amir’s sperm sample to his wife outside the prison was tainted by a defect of unreasonableness. The Israel Prison Service acted in making its decision in accordance with its responsibility by virtue of general legal principles, which recognize the right of the prisoner to realize his right to parenthood, and it saw fit to allow its implementation by way of giving a sperm sample to his wife outside the prison, in the absence of significant conflicting considerations that justify a restriction of the right.

Comparative law

International conventions and the position of the United Nations

19. The position of Israeli constitutional law on this issue and its ramifications upon the rights of prisoners serving a prison sentence is in essence consistent with the outlook of the international conventions and the position of the United Nations. This is the case with regard to the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which was ratified by Israel in 1991, and also with regard to the position of the Human Rights Commission of the United Nations and the basic principles that were determined by its institutions with regard to the treatment of prisoners. According to these sources, the right of a person to have children is considered to be a natural right, and it may only be restricted by statute, in accordance with the purposes of the United Nations Universal Declaration of Human Rights, and on reasonable grounds according to the circumstances of the case. With regard to the rights of prisoners, the principle enshrined in these conventions is that these should only be limited by those restrictions that are required by the actual imprisonment.

The right to found a family

Article 16 of the Universal Declaration of Human Rights establishes the right to marry and found a family.

This is also provided in art. 23 of the International Covenant on Civil and Political Rights:

‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.’

In interpreting this article, the United Nations Human Rights Commission has held that the significance of the right to found a family in its fundamental sense is the right to procreate and to live together (General Comment no. 19 (1990)):

‘The right to found a family implies, in principle, the possibility to procreate and live together.’

The right to protection against arbitrary intervention in family life

Article 12 of the Universal Declaration of Human Rights enshrines the right to privacy and protection against arbitrary intervention in family life.

Article 17(1) of the International Covenant on Civil and Political Rights also enshrines the right to privacy and protection against arbitrary intervention in family life:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’

The United Nations Human Rights Commission has commented that this right should only be restricted by law and in accordance with the objectives of the Covenant and should be reasonable in the particular circumstances. It also said that the term ‘family’ should be given a broad interpretation (General Comment no. 16 (1988)).

Prisoners’ rights

Article 5 of the Universal Declaration of Human Rights provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

In addition, article 7 of the International Covenant on Civil and Political Rights provides (inter alia) that no one should be subjected to degrading punishment, and article 10(1) of the Covenant provides that:

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’

With regard to this article, the United Nations Human RiOPghts Commission has determined that a person who has been deprived of his liberty should not suffer a violation of additional rights except to the extent that the restrictions are required by the actual imprisonment:

‘3.           … Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’ (emphasis added).

Similarly the Basic Principles for the Treatment of Prisoners, 1990, that were adopted by the United Nations provide that:

‘5.           Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’

Human rights and prisoners’ rights under the European Convention on Human Rights

20. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, regulates the protection of human rights in the European Community. Article 8 of the convention provides the right to respect for private and family life, and article 12 provides the right to marry and to found a family:

‘Article 8 – Right to respect for private and family life

1.            Everyone has the right to respect for his private and family life, his home and his correspondence.

2.            There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

The European Prison Rules of the Council of Europe, 1987, (Recommendation no. R (87) 3 of the Committee of Ministers of the Council of Europe) constitute recommendations for standard minimum rules of imprisonment for the countries of Europe, in which the inherent basic outlook is that the deprivation of liberty is itself a punishment, and it should not be aggravated by imposing conditions of imprisonment that are unnecessary:

‘64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.’

(With regard to the centrality of this principle, see the explanatory notes to the rules, para. 64, ibid.). These principles are consistent with the constitutional outlook underlying the legal system in Israel.

In X v. UK [64] an English prisoner applied to be allowed to have a conjugal visit with his wife. The European Commission of Human Rights (hereafter also: ‘the commission’), to which individuals had to apply at that time in order to file a case in the European Court of Human Rights, held that under art. 8(2) of the convention, it was possible to prevent prisoners from having conjugal visits for reasons of public security. In X v. Switzerland [65], a married couple from Switzerland, who were held separately in the same place of arrest for a period of approximately two months, applied to be allowed to have conjugal visits. The commission held that considerations of public security in a prison might justify preventing married persons under arrest from having conjugal visits. It also held that the persons under arrest were married and had already established a family, and it therefore followed that they were entitled to respect for family life under art. 8, and that a violation of the right to family which is justified under art. 8(2) cannot be considered at the same time a breach of art. 12, which addresses the right to marry.

In two additional cases that considered the right to marry, the commission held that the prisons should allow prisoners to realize their right to marry, since marriage does not create any risk to the security of the prison (Hamer v. UK [66]; Draper v. UK [67]). The commission in these cases rejected the argument that the existence of personal liberty was a precondition for realizing this right, and in the absence of personal liberty the right should not be recognized (Hamer v. UK [66]), and also the argument that imprisonment includes a public interest that justifies preventing the marriage of someone serving a life sentence (Draper v. UK [67]). A particularly important decision for our case was ELH and PBH v. UK [68]. In that case a prisoner requested a conjugal visit with his wife, for the purpose of the wife becoming pregnant. It was also requested that the visit would take place shortly after a surgical operation that the wife would undergo, which was expected to increase her chances of fertility for a short period of time only. The commission reiterated the rule that, notwithstanding the fact that preventing conjugal visits violates the right to respect of family life in art. 8 of the convention, preventing them is justified for the purpose of preventing breaches of discipline and the commission of offences under art. 8(2), and that a justified violation under this provision will not be regarded as a violation of the right to marry under art. 12. Notwithstanding, the commission added that it regarded in a favourable light reforms that were being made in several European countries to prepare prisons to facilitate conjugal visits:

‘The commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating “conjugal visits”’ (p. 64).

More importantly, the commission went on to say that in the circumstances of the specific case, preventing the visit did not constitute a violation of arts. 8 and 12 of the convention since the local law did not prevent the prisoner having the possibility of artificial insemination:

‘The Commission considers that the same conclusions should be reached under articles 8 and 12 of the convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners… The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the convention is disclosed…’ (emphasis added).

From these remarks it can be deduced, prima facie, that the position of the European Commission of Human Rights was that the absolute prevention of a prisoner’s possibility of having children is unconstitutional. But an interesting development in this matter occurred in a judgment that was given only recently by the European Court of Human Rights: Dickson v. United Kingdom [69]. A prisoner who was sentenced to life imprisonment for murder applied, together with his wife (a former prisoner, whom he married in prison), for access to facilities for artificial insemination. The couple argued that when the husband would be released from the prison, the wife would be 51 years old, and if their application would not be granted, their chances of having children would be non-existent. The Secretary of State for Home Affairs refused the application, while clarifying his policy with regard to artificial insemination. According to this policy, requests by prisoners for artificial insemination will be considered on an individual basis, and they will be granted only in ‘exceptional circumstances.’ The policy will give special weight to several factors, including: whether artificial insemination is the only possible means of having children; the date of the prisoner’s release (if the release is very close, it is possible that waiting to be released will not cause much hardship to the prisoner, and if the date is particularly distant, it can be assumed that the prisoner will not be able to function as a parent); whether both parents are interested in the procedure and are able to undergo it from a medical viewpoint; whether the relationship between the couple was stable before the imprisonment, so that it can be assumed that it will continue to be good after the imprisonment; the financial resources of the parent who will raise the child; and whether, in view of the prisoner’s criminal past and other relevant facts, there is a public interest in depriving him of the possibility of artificial insemination. The Home Secretary decided that, even though in that case a refusal of the request meant that the couple would lose most of their chances of having a child, on the other hand the considerations of the seriousness of the offence that was committed and the harm to the interests of the child who would be raised for many years without a father prevailed. The majority justices in the European Court of Human Rights adopted the position of the United Kingdom. First they confirmed that according to the case law of the European Court, the prisoners retain all of their rights under the convention (including the right to respect for privacy and the family) apart from the right to liberty (Hirst v. United Kingdom [70], at para. 69). Notwithstanding, the restriction of liberty naturally results in a restriction upon the ability to realize additional rights, and therefore the key question is whether the nature of the restriction and its degree are consistent with the convention. According to the majority justices, within this framework a distinction should be made between an intervention in the right of the prisoner to respect for family and privacy and a violation that takes the form of non-performance of a positive obligation that is imposed on the state with regard to that right. According to them, even though restrictions on family visits and conjugal visits have been recognized in its previous decisions as intervention in the rights of the prisoner (Aliev v. Ukraine [71], at pp. 187-189), the restriction on the possibility of the prisoner carrying out artificial insemination merely constitutes the non-performance of a positive duty that applies to the state. But when determining the scope of the positive duties, the member states of the convention have a broad margin of appreciation. Further on, the majority justices approved the principle that the convention does not permit an automatic denial of prisoners’ rights merely because of adverse public opinion, but notwithstanding this, according to their approach considerations of public confidence in the penal system are legitimate considerations within the framework of determining policy in the prison. They were also of the opinion that a legitimate consideration in this matter is the question of the best interests of the child. According to these principles, the majority justices held that the criteria determined in the policy of the United Kingdom were neither arbitrary nor unreasonable. With regard to the specific case, the majority justices held that according to the broad margin of appreciation, it was possible to give the considerations of public confidence and the best interests of the child greater weight than the harm to the prisoner in losing the possibility of bringing children into the world. Three justices dissented from this approach. The president of the court, Justice Casadevall, and Justice Garlicki emphasized that the right to have children is a constitutional right, which is enshrined in the convention (Evans v. United Kingdom [72], at para. 57). It follows that the access of a prisoner to artificial insemination facilities is a part of the right to respect for family life in art. 8 of the convention, and where the couple are married, it is also enshrined in art. 12. The minority justices said that the premise adopted by the majority justices, according to which the prisoner retains his constitutional rights apart from the right to liberty is correct. But the logical conclusion that follows from this is that a violation of the right to have children is lawful only if it is necessitated by the restriction on liberty. The minority justices also emphasized that the premise adopted by the United Kingdom in its policy was erroneous, since, according to it, access to artificial insemination would be granted only in special circumstances. This is the opposite of the basic philosophy of human rights and the European Convention, according to which the right is the rule, whereas the restriction of the right is the exception. They held that in the specific case, in which refusing access to artificial insemination facilities means the loss of the possibility of having children in its entirety, the refusal of access was disproportionate. The third minority justice dissented from the majority position that took no account of the mother’s right to have children.

It would appear that the minority opinion in that case is more consistent with the approach to the principles of the convention according to the opinion expressed by the majority, and it is consistent with the principles of the constitutional system in Israel.

English law

21. According to the case law of the House of Lords, imprisonment is intended to restrict the rights and liberties of the prisoner. Therefore, it restricts the personal autonomy of the prisoner and his freedom of movement. At the same time, the prisoner retains all of his civil rights, apart from those that have been taken from him, either expressly or as a necessary consequence of the imprisonment:

‘A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus, the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: see Raymond v. Honey…; R. v. Secretary of State for the Home Department, Ex parte Leech…’ (R. v. Secretary of State for the Home Department, Ex Parte Simms [62]; emphasis added).

The Human Rights Act 1998, which came into force in 2000, applied the main parts of the European Convention on Human Rights (including the rights under discussion in this case) to English law. Without purporting to exhaust the question of how the new statute affected English law, we can say that the various public authorities, including the prisons, are required to act in accordance with the convention (s. 6 of the law). Similarly the courts have a duty to take into account the case law of the European Court of Human Rights (s. 2 of the law; see also P.B Proctor, ‘Procreating from prison: Evaluating British Prisoners’ Right to Artificially Inseminate Their Wives Under the United Kingdom’s New Human Rights Act and the 2001 Mellor Case,’ 31 Ga. J. Int’l & Copm. L. (2003) 459, at pp. 467-470). It should be noted that even before the new law came into force, prisoners were entitled to apply to the European Commission of Human Rights with regard to prima facie breaches of the convention (after exhausting proceedings in England), and the public authorities in England acted in accordance with its decisions. A detailed consideration of the right to have children by means of artificial insemination was made by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home Department [63]. The Court of Appeal decided that the right of a prisoner to artificial insemination had not yet been recognized in case law under the European Convention, and that a prisoner should not be allowed artificial insemination in every case where he has not been allowed conjugal visits. The implication of the case law, in its view, was that only in exceptional cases, in which the violation of the right granted in the convention was disproportionate, would it be justified to impose a duty to allow artificial insemination. According to the approach of the Court of Appeal, the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex Parte Simms [63] means that it is possible to justify a restriction of a prisoner’s rights even when this is not required for reasons of the proper functioning of the prison, but it is a result of the loss of liberty that is inherent in the penal objective:

                ‘They recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but a part of the penal objective of deprivation of liberty.’

Consequently, according to the approach of the Court of Appeal, there may be a justification for restricting the right to artificial insemination for reasons of public interest:

‘A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’

According to the court in England, an additional legitimate consideration for restricting the right is the consideration of the best interests of the child, who will grow up while one of his parents is in prison:

                ‘By imprisoning the husband, the state creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the state should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.’

The Court of Appeal did not consider in depth the question when a restriction of the right of a prisoner to carry out artificial insemination will be considered disproportionate. Notwithstanding, it said, as a premise, that it must be shown that preventing the possibility of carrying out artificial insemination does not lead only to a delay in realizing the prisoner’s right to establish a family, but to his being completely deprived of it:

                ‘I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.’

American law

22. The premise in American law is that prisoners retain their constitutional rights inside the prison:

                ‘Prison walls do not form a barrier separating prison inmates from the protection of the constitution’ (Turner v. Safley [46], at p. 84).

Therefore, the prisoner retains constitutional rights such as the right to equal protection before the law, the right to due process in the Fourteenth Amendment of the United States Constitution, and the right to privacy. At the same time, other constitutional rights that are not consistent with the actual imprisonment are not retained by the prisoner:

                ‘An inmate does not retain [constitutional] rights inconsistent with proper incarceration’ (Overton v. Bazzetta [47], at p. 132; Turner v. Safley [46], at p. 96).

According to the stricter opinion in the United States Supreme Court, the rights of which prisoners can be deprived are only those that are fundamentally inconsistent with imprisonment (‘we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself…’, Hudson v. Palmer [48], at p. 523). But an opinion has been expressed that the rights that are consistent with the actual imprisonment may also be restricted, if this is done for the purpose of realizing legitimate penal objectives:

                ‘It is settled that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier [49], at p. 822’ (Turner v. Safley [46], at p. 95).

In the leading decision in Turner v. Safley [46], it was held that the appropriate standard for scrutinizing a violation of the constitutional rights of prisoners is the lowest level of scrutiny, the rational connection. The reason for this lies in the complexity of the task of administering the prison, and the court not having the proper tools to consider the matter (ibid. [46], at pp. 85, 89).  In addition, details were given of four tests for examining the constitutionality of the violation, in accordance with the aforesaid standard. The judgment in Overton v. Bazzetta [47], at p. 132, adopted the tests laid down in Turner v. Safley [46] and summarized them as follows:

                ‘Whether the regulation [affecting a constitutional right that survives incarceration] has a “valid, rational connection” to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation’ (ibid. [47], at p. 132).

The aforesaid standard of scrutiny also applies when the constitutional right that is violated is a fundamental and basic one and when in other circumstances a stricter test would be applied (Washington v. Harper [50], at p. 223). Notwithstanding, restrictions that are imposed in reliance upon a classification that gives rise to a suspicion of a racist consideration are examined with the constitutional strict scrutiny test (Johnson v. California, 543 U.S. 499 (2005)).

The right to have children is recognized in American law as a constitutional right, which lies at the very heart of the right to personal freedom (see: Skinner v. Oklahoma [51], at p. 541; Eisenstadt v. Baird [52], at p. 453; Carey v. Population Services International [53], at p. 685; Cleveland Board of Education v. LaFleur [54], at p. 639; Stanley v. Illinois [55], at p. 651).

In view of these principles, the United States Supreme Court has held that the right to marry is retained even during imprisonment (Turner v. Safley [46]). Notwithstanding, the Federal courts have consistently refused to recognize a right to conjugal visits and intimacy with a spouse as a constitutional right (Anderson v. Vasquez [56]; Hernandez v. Coughlin [57]; Toussaint v. McCarthy [58]). The question whether allowing a prisoner to provide a sperm sample for the purpose of artificial insemination and realizing his constitutional right to have children is consistent or inconsistent with the actual imprisonment and what are the potential conditions for restricting it has not yet been brought before the United States Supreme Court, but other courts in the United States have approved administrative decisions that restrict the realization of the right. These decisions raise the question of whether they are consistent with constitutional principles and the substantive rules of conventional international law on this issue. In Goodwin v. Turner [59] the Federal Court of Appeals of the Eighth Circuit approved a policy that denied prisoners the possibility of artificial insemination. It was held that even if the right survived imprisonment, there was a rational connection between this policy and the duty of the prison to treat all prisoners equally. The argument was that the prisons would also be required to allow female prisoners to realize the right to have children, and as a result also to care for their needs during pregnancy and for their infants, and that this would lead to imposing substantial costs on the prisons and make it necessary to divert resources from important programs and the security needs of the prison. Therefore, for this reason it was possible not to approve artificial insemination for spouses of male prisoners.

                ‘According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security’ (ibid. [59], at p. 1400; the Supreme Court of the State of New Jersey made a similar ruling in Percy v. State of New Jersey, Department of Corrections [60], at pp. 548-549).

The minority justice in that case thought otherwise. According to him, the right to have children, like the right to marry, survives the imprisonment. In addition, in his opinion it is not legitimate to make use of the principle of equality in order to deny the constitutional right of another (ibid. [59], at pp. 1403-1407). Further detailed consideration of this issue can be found in Gerber v. Hickman [61], in an opinion of the Federal Court of Appeals of the Ninth Circuit. In that case a majority (of six judges) held that the right to have children is inconsistent with the nature of imprisonment, since imprisonment naturally separates the prisoner from his family and his children. It was also stated there that restricting the right to have children is consistent with the legitimate objectives of the penal system, including deterrence and retribution:

                ‘… “these restrictions or retractions also serve… as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction”…’ (ibid. [61], at p. 621).

Following from these remarks it was held that the right to have children is inconsistent with imprisonment, even when it is possible to realize it by means of providing sperm for artificial insemination:

                ‘Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation’ (ibid. [61], at p. 622).

By contrast, the five minority justices were of the opinion that realizing the right to have children by means of a process that does not require an intimate meeting does not pose a security risk, and therefore it is consistent with the substance of imprisonment and should be respected:

                ‘… the right to intimate association and the right to privacy — are clearly inconsistent with basic attributes of incarceration because of security concerns. Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration’ (ibid. [61], at pp. 624-625).

They also emphasized that the majority judges had not shown why the right to have children was inconsistent with the penal objectives, and in so far as their intention was to deny the right to have children as a method of punishment, a determination of this kind should be made by the legislature:

                ‘The majority identifies correctional goals such as isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation that are supposedly inconsistent with the right to procreate, yet does not explain how the right is inconsistent with any of these goals. If, in fact, the purpose behind prohibiting procreation is to punish offenders, this is a determination that should be made by the legislature, not the Warden’ (ibid. [61], at p. 626).

It would appear that the minority position in this proceeding corresponds in essence to the outlook that has become accepted in the Israeli legal system, whereby human rights are retained by the prisoner in so far as they are not inconsistent with the substance of the imprisonment, and restricting and limiting them is permitted only in so far as this is essential for achieving a very weighty public purpose, such as security and disciplinary arrangements in the prison, or another important public interest. In the absence of such an interest, the remaining rights should be respected, and the prisoner should be allowed to realize them de facto.

Conclusion

23. Yigal Amir was and remains one of the most abhorred criminals in the Israeli national consciousness in recent generations, if not the most abhorred. He was convicted of the murder of a prime minister, and first introduced into the public consciousness the possibility that a terrible event of this kind, in which an ordinary Israeli citizen would murder his leader, could also take place in Israel. Amir has been sentenced by the legal system in so far as the law requires, and his punishment has been exhausted. But his sentence has not reduced the feelings of abhorrence towards him, for the nefarious deed of taking the life of a man who was the symbol of the democratic system of government in the independent State of Israel.

Notwithstanding, from the moment that Amir’s sentence was handed down and he became a prisoner serving a sentence of life imprisonment, his punishment was exhausted. From this stage, like all prisoners, Amir is subject to severe restrictions on his liberty, and additional restrictions on his human rights, that derive inherently and essentially from the loss of his liberty. In addition he is subject to further restrictions that concern the discipline and order that are required by life in the prison. It is also permitted, where necessary, to impose restrictions on him that are derived from the needs of state security or from other essentials needs that are a public interest. But apart from these restrictions he retains, like every prisoner, basic human rights that were not taken from him when he entered the prison (cf. BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [41], at para. 19). The executive authority is required to respect these rights and to do all that it can in order to allow them to be realized, unless they are confronted by conflicting considerations of public interest whose weight justifies a limitation of the human right. These considerations do not include the consideration of desiring to worsen the conditions of imprisonment of someone who is serving a life sentence because of the severity of his crime, or the consideration of restricting his human rights as revenge for his deeds. These considerations are irrelevant to the issue and they are inadmissible.

The outlook that it is possible to violate the prisoner’s right to parenthood because of the gravity of the offence that he committed, for reasons of deterrence and to show abhorrence towards the offender, is foreign to the basic principles of criminal law and to penal theory. This approach is also clearly inconsistent with the prevailing constitutional approach in the Israeli legal system. It is inconsistent with the ethical principles of the State of Israel as a Jewish and democratic state; it does not reflect a proper purpose nor is it proportionate. This court has already said, in another context:

                ‘A restriction upon contact with persons outside the prison should not be imposed on security prisoners if it is not required by security considerations or other objective considerations, but merely derives from considerations of retaliation or revenge, or if it harms the prisoner to a degree greater than that required by objective considerations’ (per Justice Zamir in State of Israel v. Kuntar [16], at p. 501, and LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits), at p. 5).

With regard to the realization of human rights that are retained by a prison inmate, Amir’s status is the same as any other prisoner. In the absence of substantial conflicting considerations of public interest, the human rights that he retains as a prisoner serving a life sentence should be respected and not violated, and the right to parenthood is among the most exalted of these. This is what the competent authority decided in this case, and it was right to do so.

Respect for human rights and the protection of human rights lie at the heart of the constitutional system in Israel. The protection of the human rights of prison inmates is derived from and required by this outlook. Without de facto implementation of this protection, to the extent that it is possible, even for someone who has lawfully been deprived of his liberty, the value of human dignity may be diminished. This is equally true of all prisoners, whether less serious or more serious offenders. It is also true with regard to prisoners serving a life sentence because they have taken human life; society’s recognition of the human rights retained by the prisoner preserves his dignity as an individual. But no less importantly it preserves the dignity of society as a civilized society that does not merely protect the rights of its ordinary citizens, but also those of persons who have committed crimes against it, even if the crime is the worst of all — the murder of a human being — and even where the victim of the murder symbolized in his life and his death the image of Israeli society as a democracy that is built on constitutional values that give precedence to human rights.

                ‘Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic state is liable to uphold. A state that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

We should remember that a civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal sitting in prison, subject to conditions and restrictions that satisfy constitutional criteria. The public authority acted in this case in accordance with the proper constitutional criteria, and its decision was made according to the law.

On the basis of all of the aforesaid, the petition should be denied. The interim order that was made is set aside.

In the circumstances of the case, I propose that no order is made for costs.

 

 

Justice E. Hayut

1.            I agree with the opinion of my colleague Justice Procaccia and I would like to add several remarks.

This petition concerns a decision of the Prison Service Commission of 5 March 2006 to allow Yigal Amir, who is serving a life sentence, to send sperm outside the prison for the purpose of the artificial insemination of his wife, Mrs Larissa Trimbobler. Like my colleague, I too am of the opinion that the argument of the petitioners that the Prison Service Commissioner is not competent to allow the sperm to be transferred as aforesaid should be rejected. The question in this context is not what is the source of the authority to allow this but by virtue of what authority was the Prison Service Commissioner entitled to refuse the request of this prisoner in this regard. It would appear that in so far as the commissioner’s decision does not restrict the human rights of the prisoner but realizes them, his decision enjoys the presumption of being made with authority and no fault can be found with it in this regard. A completely different question is whether the authority has a duty to exercise its power in this matter and what are the limitations and restrictions that it may determine in this regard. These questions do not arise in the case before us, and therefore we can leave them until they do.

2.            With regard to the question of the reasonableness of the decision, the petitioners as public petitioners sought in their petition to give expression to the feeling of abhorrence that the Israeli public feels to the murderer of the late Prime Minister Yitzhak Rabin. According to them, the punishment incorporated in the criminal sanction should also receive expression after the sentence has been imposed, when the murderer is serving his sentence of imprisonment. Therefore, so it is alleged, he should not be allowed to realize his right to parenthood. The petitioners further argue that the decision of the Israel Prison Service to allow the Trimbobler-Amir couple artificial insemination is an improper decision from a moral viewpoint, and according to them ‘a person who commits such a serious crime ought to know that not only will he lose his personal liberty, but also other basic rights may be impaired… someone who takes the life of his fellow-man may discover that that he cannot give life to his progeny.’ The petitioners emphasize, however, that it is not in every case that a prisoner is not entitled to have children, but in their opinion ‘the murder Amir does not have this right.’

3.            In his book A Judge in a Democracy (2004), President Barak discussed how a judge ought not to estrange himself from the society in which he lives and functions. In his words:

‘The administration of justice is a form of life that involves a degree of seclusion; it involves distancing oneself from social and political struggles; it involves restrictions on the freedom of expression and response; it involves a considerable degree of solitude and introspection. But this is not a form of life that involves an estrangement from society. A wall should not be built between the judge and the society in which he functions. The judge is a part of his people’ (ibid., at p. 52).

Indeed, as an integral part of Israeli society we ought to be aware and sensitive to the strong feelings that the public has to the terrible act of murder committed by Amir, and these feelings have been well expressed by the petitioners in their petition. But as judges in a democracy, we are enjoined to decide the petition according to the law, by applying the basic principles of our legal system even if our decision is not consistent with these feelings. In his aforementioned book, President Barak outlines the important distinction between the need to maintain the confidence of the public in its judges and being carried away unprofessionally by public opinion and public feelings. He says:

‘The need to ensure public confidence does not imply a need to ensure popularity. Public confidence does not mean following the prevailing trends among the public. Public confidence does not mean making decisions on the basis of public opinion surveys. Public confidence is not pleasing the public. Public confidence does not mean making decisions that are inconsistent with the law or with the conscience in order to reach a result that the public wants. On the contrary, public confidence means making decisions according to the law and in accordance with the judge’s conscience, irrespective of the public’s attitude to the actual decision’ (ibid., at p. 51).

In our case, it is possible to understand the collective feeling of revenge that the petitioners are expressing in view of the national trauma caused by Amir by means of the political murder that he committed. But this feeling cannot dictate an outcome that is inconsistent with the basic principles of our legal system. According to these principles, which my colleague discussed at length in her opinion, the punishment to which Amir was sentenced, according to which he was removed from society and imprisoned behind bars for life, does not inherently deprive him of the right to parenthood. Therefore, we can find no unreasonableness in the decision of the Israel Prison Service to allow the transfer of the sperm (subject to the restrictions stipulated in the decision), in order to give Amir a chance to realize his right to parenthood by means of artificial insemination.

 

 

Justice S. Joubran

1.            I agree with the opinion of my colleague Justice A. Procaccia and the reasons that appear in her profound and comprehensive opinion. Notwithstanding, in view of the complexity of the question before us, I think it right to add several remarks of my own, if only in order to present the difficulties raised in this case from a different and additional viewpoint.

2.            From time to time the court is asked to consider petitions concerning the conditions of imprisonment and the various restrictions that are imposed on prisoners who are serving sentences in the prisons. On a theoretical level, these petitions involve complex questions concerning the purpose of the sanction of imprisonment. In this context, it is possible to identify two main approaches that conflict with one another. According to one approach (hereafter — the first approach), the purpose of imprisonment is limited to depriving the prisoner of his personal liberty, by restricting his freedom of movement when imprisoning him behind bars for the period of imprisonment to which he has been sentenced. According to this approach, restricting any other rights of the prisoner is not a part of the sentencing purpose. In this regard it makes no difference whether we are dealing with rights whose violation is a consequence of the restriction of the liberty because of the fact that the ability to realize them depends upon the freedom of movement, or we are dealing with rights that are being violated in order to achieve other public purposes, including ensuring the proper management of the prison service, security considerations and other legitimate public interests (see para. 14 of the opinion of my colleague Justice A. Procaccia).

3.            According to the other approach (hereafter — the second approach), a restriction of additional basic rights of a prisoner, apart from the right to personal liberty, will be possible if this is consistent with the additional legitimate purposes underlying the objective of the sentence, including the removal of the prisoner from society, the suppression of crime, (specific or general) deterrence, a denunciation of the offender and punishment (with regard to these reasons, see the memorandum of the draft Penal (Amendment — Incorporation of Discretion in Sentencing) Law, 5765-2005, which is based on the opinion of the committee chaired by Justice Emeritus E. Goldberg; an expression of the second approach can be found in the majority opinion in the judgment in Gerber v. Hickman [61], which is mentioned on page 33 of my colleague’s opinion). In other words, according to this approach, the purpose of the sentence of imprisonment that is imposed on the prisoner is not limited to sending him to prison in itself, and the restriction of the prisoner’s freedom of movement, together with the other violations of his rights that accompany it, do not express the full sentence that is imposed on him.

4.            It is not superfluous to point out that the distinction between the aforesaid two approaches is not merely a matter of semantics but a difference that goes to the heart of the purpose of sentencing. Thus it may be asked most forcefully why sentencing should only take the form of a denial of the prisoner’s liberty and freedom of movement and not a restriction of other rights. It should be emphasized that the distinction between the different approaches has major ramifications on the scope of the protection given to the rights of the prisoner. Thus it is not difficult to see that whereas the first approach results in a restriction of the violation of the prisoner’s basic rights, the second approach actually extends the possibilities of violating them. To a large extent it can be said that the approach that the sanction of imprisonment should realize the various purposes underlying the sanction, including punishment and deterrence, leads to an approach that holds that the mere restriction of the freedom of movement does not exhaust, in every case, the sentence that is imposed on the prisoner. According to this approach, imprisonment should fully reflect the society’s abhorrence at the acts that the prisoner committed and the severity with which society regards them. In this way, not only is the prisoner placed behind bars for his acts, but his imprisonment should reflect, in all its aspects, his isolation and removal from society.

5.            The difference between the aforesaid two approaches may easily be clarified by giving several examples: serving a prison sentence within the confines of a prison inherently results in a violation of the prisoner’s right to engage in an occupation, since he is subject to various restrictions that deprive him of the possibility of leaving the prison confines. But consider, for example, a case in which a prisoner, who committed crimes that gave rise to public outrage, wishes to publish, from the prison, a novel that he has written, which is based on the story of his personal life. Assuming that the writing of the book during the prisoner’s free time does not interfere with the proper functioning of the prison and does not affect the maintenance of order and discipline in the prison, according to the first approach the prisoner should not be prevented from publishing the book, by which means he realizes his right to the freedom of expression and the freedom of occupation. In parenthesis I will point out that the need to examine the writings of the prisoner and to ensure that they do not include details that may affect order and discipline in the prison may impose a significant burden on the prison service so that it will be justified in refusing publication of the book (see and cf. Golan v. Prisons Service [15], at pp. 165-166 {524-527}). In any case, it should be noted that according to the second approach it is possible that the publication of the book may be prevented for very different reasons. It may be argued that the purposes underlying the sentence of imprisonment, including punishment, expressing revulsion at the acts of the prisoner and isolating him from society, justify not allowing that prisoner, while he is in prison and before he has finished serving his sentence, to derive an economic benefit from the commission of his despicable acts or achieving public recognition as a result of the publication of the book.

Another interesting example concerns the question of the rights of a prisoner to participate in elections to the Knesset. Whereas according to the first approach there is no basis for restricting the right of a prisoner to vote, as long as this does not harm the proper management of the prison, according to the second approach it is possible to regard the refusal of the right to vote as a measure that reflects the purpose of isolating the prisoner from society, which derives from the idea that there is no reason to allow a prisoner who has been removed from society for a certain period to influence the shaping of its system of government and other aspects of society. This is the place to point out that, in Israel, the arrangement that allows prisoners to realize their right to vote is enshrined in legislation (see s. 116 of the Knesset Elections Law, 5729-1969; HCJ 337/84 Hukma v. Minister of Interior [26]; Golan v. Prisons Service [15], at pp. 158-159 {514-516}).

The same applies to the restrictions imposed on the prisoner’s ability to have contact with members of his family and with additional persons outside the prison, whether by means of visits to the prison or by sending letters or making telephone calls. It may be argued that the aforesaid restrictions were not only imposed because of the need to prevent a disruption to the running of the prison but they were also intended to realize the purpose of removing and isolating the prisoner from society.

6.            Several different variables may increase the disparity between the aforesaid two approaches. One of these variables concerns the seriousness of the offence that the prisoner committed. Thus, for example, according to the second approach, the more serious the offence, the greater the degree of revulsion that the public feels towards the acts of the prisoner, and this should be reflected to a more significant degree in his sentence. This can be done, inter alia, by preventing him from benefitting from additional rights that he would have had, were he a free man.

7.            It can be said that the petitioners’ arguments are based to a large extent on the second approach. According to what is alleged in the petition, when considering a request of someone who committed such a despicable and serious offence as the second respondent to be allowed to have children, the competent authority should take into account considerations that go beyond the effects of the application on the mere ability to keep him behind bars, and it should also balance the violation of his rights against the principles of punishment and deterrence that underlie his sentence. Thus they request that the administrative authority should also take into account the profound feelings of abhorrence that the citizens of the state feel towards his despicable acts, when it decides whether there are grounds for allowing the artificial insemination of his spouse. It follows from this, the petitioners seek to argue, that someone who committed such a serious act against the Israeli public should not be allowed to realize his right to have a family.

8.            But as my colleagues say in their opinions, the path that the petitioners seek to follow is not the path of the Israeli legal system. It is the first approach presented above that has established over the years a firm basis in our case law. The remarks of this court in Golan v. Prisons Service [15], which are cited in the opinion of my colleague Justice A. Procaccia, are pertinent in this regard:

‘The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison’ (ibid., at p. 152 {502}; see also the references cited there).

Or as my colleague expressed so well in her own words:

‘It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their purpose is not to increase of the severity of the sentence that was handed down to the prisoner as a goal in itself. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts’ (para. 14 of the opinion of Justice A. Procaccia).

9.            Admittedly it is possible to find instances in Israeli case law in which it appears that a prisoner’s rights were in practice denied as a part of his punishment. In this regard, the following examples can be mentioned: the refusal of a prison governor to allow a prisoner to have use of a ‘sex doll’ in order to release his tensions and as a substitute for having marital relations (LHCJA 4338/95 Hazan v. Israel Prison Service [20]); a refusal to allow a book that was held to contain inflammatory and inciting content into a prison (HCJ 543/76 Frankel v. Prisons Service [42]); a decision not to allow prisoners on a hunger strike salt and milk powder and to remove these products from their cells, where it was held that the right to allow a prisoner to participate in a hunger strike is not one of the rights granted to him when he is in prison (HCJ 7837/04 Borgal v. Israel Prison Service [43]); a prohibition against security prisoners having radio receivers (HCJ 96/80 Almabi v. Israel Prison Service [44]). Naturally it is possible to point to many more examples, but for the sake of brevity I will not mention them. But it is important to note that all of these cases concerned a restriction of the prisoner’s rights that derived from the principle that his punishment was exhausted by his being placed behind bars, and any additional restriction was intended to serve the needs of the imprisonment only. Thus, in all the examples that were mentioned above, the restriction of the additional rights was made in order to ensure the proper running of the prison and the disciplinary and security arrangements in the prison. Notwithstanding, in order that these case law rulings with regard to the importance of preserving the human rights of the prisoner do not become empty words, the court should ensure that the Israel Prisons Service does not make improper use of its power to ensure the proper functioning of the prison as a means of restricting additional rights of prisoners, even where this is not necessary. The remarks of Justice H. Cohn in HCJ 144/74 Livneh v. Prisons Service [45] are pertinent in this regard:

‘Many evils that are a necessary part of prison life are added to the loss of liberty. But we should not add to the necessary evils that cannot be prevented any restrictions and violations for which there is no need or justification. The powers granted to prison governors to maintain order and discipline need to be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without any real justification.’

10. It is proper at this stage to make two additional points. First, it is possible to mention incidents that can perhaps be regarded as expressing the second approach. These are cases where certain aspects of the sentence of imprisonment reflect to some extent purposes that go beyond those concerning the restriction of liberty. Thus, for example, s. 9 of the Release from Imprisonment on Parole Law, 5761-2001, provides that among the considerations that should be taken into account when considering the question of the early release of a prisoner from imprisonment, there are considerations concerning the severity and type of the offence, the circumstances in which it was committed, its scope and consequences, and also considerations relating to the prisoner’s criminal record. Moreover, s. 10 of the same law states that:

‘In cases of special seriousness and circumstances in which the board is of the opinion that the parole of the prisoner will seriously harm the public, the legal system, law enforcement and the deterrence of others, when the severity of the offence, its circumstances and the sentence handed down to the prisoner are unreasonably disproportionate to the term of imprisonment that the prisoner will actually serve if he is released on parole, the board may also take these factors into account in its decision.’

Another example of this can be found in the duty imposed on every prisoner to work in the course of the sentence of imprisonment imposed on him (s. 48 of the Penal Law, 5737-1977, together with s. 25 of the Prisons Ordinance [New Version] (hereafter — the ordinance)). According to what is stated in s. 56(30), if a prisoner refuses to work, this will lead to the sanctions listed in s. 58 of the ordinance. Thus, even though the rationale underlying this provision is a rationale that is intended to rehabilitate the prisoner, it does involve a conflict with his freedom of choice.

Notwithstanding, it is important to point out that in all of these examples and others, the violation of the prisoner’s rights in addition to his actually being held in prison is enshrined in a specific provision of statute (see for example Golan v. Prisons Service [15], at p. 152 {502}). The position is different when the Prison Service Commissioner wishes to violate additional rights that are not inherent to the loss of liberty without such a power being given to him expressly in statute.

11. Second, there is an additional category of cases in which the gravity of the offence or the fact that a prisoner has not expressed regret for his actions would appear to have an effect on the scope of the violation of rights that is not necessarily inherent to the loss of liberty. Even though the circumstances relating to the severity of the offence do not constitute in themselves a justification for violating the rights of the prisoner, they are capable of indicating the risk presented by him, and consequently they are capable of justifying imposing additional restrictions that violate the basic rights given to him. Notwithstanding, it is important to note that this is not a continuation of the sentencing or an additional sentence resulting from these circumstances, but a violation that is incidental to the actual sentence of imprisonment (see and cf. LHCJA 5614/04 Amir v. Israel Prison Service [2]).

12. In conclusion, as I pointed out in my opening remarks, I agree with my colleagues that in the circumstances of the present case there was no reason to prevent the second respondent realizing his right to have children by means of artificial insemination. Notwithstanding, I saw fit to add these remarks, in order to try to focus upon the difficulty in the issue before us and to clarify why even when we are dealing with someone who committed one of the most abhorrent crimes in the history of our state, we are obliged to continue to adhere to the principles that lie at the heart of our legal outlook.

 

 

Petition denied.

17 Sivan 5766.

13 June 2006.

 

In the Supreme Court

CrimApp 10697/05

 

 

Before:  The honourable Justice E. Rubinstein

 

 

The appellant:      Abdul Azbarga

 

                v.

 

The respondent:  State of Israel

 

 

                Appeal of the decision of the Tel-Aviv-Jaffa District Court in MApp 93362/05 (SFC 1145/05) that was given on 7 November 2005 by Justice Noga Ohad

 

For the appellant:                Adv. Moshe Meroz

 

For the respondent:            Adv. Maya Hadad

 

 

Decision

 

1.             This is an appeal of the decision of the Tel-Aviv-Jaffa District Court (Justice Ohad) of 7 November 2005 in MApp 93362/05 (SFC 1145/05), in which the appellant’s application to be allowed out of the house arrest to which he is subject, on a daily basis at fixed times, in order to participate in daily prayers at the mosque of the town of Qalansuwa, was denied.

 

2.             (a)           On 5 September 2005, an indictment was filed against the appellant in the Tel-Aviv-Jaffa District Court, which attributes to him an offence of attempted murder under ss. 305(1) and 29(a) of the Penal Law, 5737-1977.

 

                (b)           According to what is alleged in the indictment, on the afternoon of 2 August 2005, the appellant and a relative of his, Ahmad Azbarga, entered the garage of the Alwahwah brothers in Lod. Each of them carried a hand-gun. Ahmad and the appellant approached Guptan Alwahwah, the appellant cocked his gun and Ahmad shot him in the chest. As a result of the shooting, Guptan lost consciousness and was rushed to hospital in critical condition, suffering from a torn diaphragm, several puncture wounds in the intestine and additional wounds. This happened following a fight that broke out the previous day between the Azbarga family and the Alwahwah family as a result of suspicions that arose that the borrowed car that a member of the Azbarga family brought into the garage of the Alwahwah brothers for a paint job on the occasion of a family wedding was a ‘fake.’ In the course of the fight, the windscreen of the car was smashed and another car in the garage was damaged, following which the appellant said that ‘he would turn the wedding of the Azbarga family into a funeral for the Alwahwah family.’

 

                (c)           When the indictment was filed, the state applied for the appellant to be held under arrest until the proceedings were concluded. On 20 September 2005, the District Court in MApp 93050/05 (per Justice Rozen) denied the application and ordered the appellant to be placed under house arrest on the following conditions: a personal guarantee of a third party in a sum of NIS 250,000, a cash deposit or bank guarantee in a sum of NIS 20,000, complete house arrest at a distance of no less than 30 kilometres from the city of Lod with supervisors who would give a guarantee of NIS 250,000, and a stop order preventing the appellant from leaving the country. The reason given for the decision was that there was prima facie evidence and a ground to hold the appellant under arrest, but the strength of the prima facie evidence was not great.

 

                (d)           The appellant filed an application for a review in the District Court, in which he requested that he should be allowed to go out to pray five times a day at the mosque situated at a distance of approximately 200 metres from the place of the house arrest in Qalansuwa. During the oral hearing, the application was changed to twice a day. On 7 November 2005, the court denied the application. It held that the application had no merit in view of the short time that had passed since the decision regarding the house arrest was given. It was also determined that the state’s consent to allow the appellant to go to pray at the mosque twice a day during the month of Ramadan did not necessarily mean that going out to pray should be allowed on ordinary days, since the permission to go to pray during Ramadan was allowed in order not to discriminate against the appellant in relation to another defendant, a member of the Jewish faith, who was allowed to go to prayers during the Jewish festival season.

 

3.             In the current appeal, it is argued that the appellant is a sheikh, who is very particular about observing the precepts of his religion, including, as aforesaid, praying in a mosque. It was also stated that the mosque of the town of Qalansuwa was approximately 300 metres away from the house where the appellant was under house arrest, that the appellant would go solely to the mosque, and that during the prayers the appellant would be accompanied by the supervisor that gave the guarantee. It was also argued that the appellant was a young man without any criminal record, and that he was summoned for interrogation only approximately a month after the event described in the indictment, during which he was free, and he has been under house arrest for two months. It was argued that the appellant was allowed out for prayers during the month of Ramadan, during which he did not infringe the conditions, and therefore he was deserving of trust. It was also argued that prohibiting his going to prayers in the mosque was inconsistent with upholding the appellant’s constitutional right to freedom of religion and worship.

 

4.             (a)           During the hearing, counsel for the appellant pointed out that we are speaking of prayers between 5:00 and 6:00 in the morning, and between approximately 4:50 and 6:30 in the evening, and on Friday also at midday. According to the appellant, where there is a mosque, there is a religious obligation to pray at the mosque.

 

                (b)           Counsel for the state emphasized that a review requires a change of circumstances, and there is none. Moreover, it was difficult to supervise the appellant’s compliance with the conditions of the house arrest, and the question is one of balance: during Ramadan the appellant was allowed out in view of the importance of the period and in order not to discriminate against him.

 

                (c)           After the hearing, counsel for the appellant submitted references to cases in which Jews and Muslims were allowed to go to prayers. The respondent replied that each case should be examined according to its circumstances. The danger presented by the appellant was an established fact and no change had taken place in this regard. Therefore the possibility of going to prayers undermined the ability to supervise him.

 

5.             (a)           For the purpose of the decision I have studied certain material in order to understand the relevant religious requirements, in so far as I have able to do so. Since the relevant comparison, which counsel for the appellant also addressed, is an application to allow Jewish defendants under house arrest to go to participate in prayers at the synagogue, I have also studied the Jewish sources. It is self-evident — but I nonetheless emphasize the point —that in my remarks below I am not purporting to make any religious law ruling, either with regard to Jewish law or with regard to Islamic law.

 

                (b)           With regard to Islam law, praying (sallat) five times a day, while facing Mecca, is one of the five basic precepts of the religion, which are called the pillars (arkan) of Islam. The others are belief with regard to the unity of God and his emissary, the prophet Mohammed, charity, fasting and the pilgrimage to Mecca. Prayer can be done on one’s own and in any place; see Ibn Rushd, The Distinguished Jurist’s Primer (Prof. I.A.K. Nyazee (tr.)), at p. 129, according to which any clean place is suitable for prayer, but not unclean places such as cemeteries, slaughterhouses, a public bathhouse, etc.). See also H. Lazarus-Yaffe, Chapters in the History of the Arabs and Islam (Heb.), at p. 94: ‘The daily prayers and additional voluntary prayers… may be performed by any Muslim where he chooses, although praying in a mosque is always preferable.’ In other words, it is possible to pray anywhere, at home or outside the home, but Muslims are recommended to pray at a mosque if it is possible in the circumstances. With regard to the duty of prayer itself, see the Qur’an, surah (chapter) 2 (The Calf), verse 238: ‘Guard strictly your (habit of) prayers, especially the Middle Prayer; and stand before Allah in a devout (frame of mind)’; surah 4 (Women), verses 102-104; surah 30 (The Romans, The Byzantines), verses 17-18: ‘So (give) glory to Allah, when ye reach eventide and when ye rise in the morning; Yea, to Him be praise, in the heavens and on earth; and in the late afternoon and when the day begins to decline’ (Yusuf Ali translation). The total number of prayers is determined by tradition. By contrast, the Friday midday prayer is a prayer that is required to be said as a rule in a mosque, led by an imam if possible, and it also involves a sermon (khutbah) (see Encyclopaedia of Islam, vol. 8 (fifth edition), ‘Sallat’ (Prayer), 930, at p. 932; Hebrew Encyclopaedia (Heb.), vol. 4, ‘Islam,’ (by M.M. Plessner), at pp. 954, 972-975; H. Lammans, Islam, at p. 45); the source in the Qur’an for Friday prayers is surah 62 (The Congregation, Friday), verse 9: ‘O ye who believe! When the call is proclaimed to prayer on Friday (the Day of Assembly), hasten earnestly to the Remembrance of Allah, and leave off business (and traffic): That is best for you if ye but knew!’

 

                (c)           With regard to Jewish law, according to Maimonides (Mishneh Torah, Hilechot Tefilla (Laws of Prayer) 1, 1), prayer is in itself a positive commandment:

‘It is a positive commandment to pray each day, as the Torah says: “And you shall worship the Lord your God” (Exodus 23, 25). By oral tradition it has been taught that this worship is prayer, as the Torah says: “… and to worship Him with all your heart” (Deuteronomy 11, 13). The Sages said: “What worship is done with the heart? Prayer.” And there is no number of prayers according to the Torah, nor is the format of this prayer stipulated in the Torah, nor does prayer have a fixed time according to the Torah.’

 

                The laws that follow this describe in detail the rabbinical enactments with regard to the number and times of the prayers. See also Maimonides, Book of Commandments, positive commandment no. 5, which also bases these remarks on the verse ‘… and Him you shall worship…’ (Deuteronomy 13, 5), and he also says (Mishneh Torah, Hilechot Tefilla (Laws of Prayer) 8, 1):

‘The prayer of a congregation is always heard, and even if its includes sinners, the Holy One Blessed be He does not reject congregational prayer. Therefore a person should join with the congregation, and he should not pray individually whenever he can pray with the congregation, and a person should always go in the morning and the evening to the synagogue, since an individual’s prayer is not heard at all times unless it is in the synagogue, and anyone who has a synagogue in his town and does not pray in it with the congregation is called a bad neighbour.’

                Rabbi Yosef Karo states in Shukhan Aruch, Orach Hayim 90, 9:

‘A person should endeavour to pray in the synagogue with the congregation, and if he is prevented and is unable to go to the synagogue, he should seek to pray at the time when the congregation is praying (Comment of Rabbi Moshe Isserlis (Rama): “And that is the law for persons who live in places where they do not have ten men: they should nonetheless pray in the morning and the evening at the time when congregational prayer is held”) and also if a person is prevented from praying at the time when the congregation prays and he prays individually, he should nonetheless pray in the synagogue.’

                Rabbi Yisrael Meir HaCohen (Kagan) in Mishnah Brura (Commentary on Shulhan Aruch, Orach Hayim 90, 9), explains the word ‘endeavour’ as follows: ‘And even if he has ten men in his home, he should endeavour [to pray] in the synagogue…’ and why ‘with the congregation? Because the Holy One Blessed be He does not reject congregational prayer…’. He goes on to point out there: ‘It is written in a responsum of Rabbi David ben Shelomo Ibn Abi Zimra (Radbaz) that if a prisoner is given permission by the ruler to pray on one day of his choice with the congregation, he should pray on that day immediately and should not postpone fulfilling the obligation (of praying with the congregation) until Yom Kippur or Purim…’.

                Thus we see that the obligation to pray in a synagogue — which appears as a normative part of Jewish law — is defined as something that one should endeavour to do. Here we should point out that there are parts of the prayers that can only take place when ten men are present (even if not in the synagogue), such as the Kaddish, Kedusha, the reading of the Torah and the priestly blessing. On the subject of communal prayer and its importance, see Rabbi A.I. Kook, Olat Re’iyah, 1, 261, which is cited in Rabbi M.Z. Nerya, ‘Orot HaTefilla,’ in Siach Yitzhak in memory of Yitzhak Lavi (Rabbi Y. Shaviv, ed.), at pp. 147, 230. I should also add that within the framework of the balances between conflicting interests, even though there is usually a possibility of communal prayer in Israeli prisons, a rabbinical court may deny a prisoner this possibility under s. 6 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, which makes it possible to compel the giving of a divorce bill (Get) by means of imprisonment (see also s. 7, which allows a person to be compelled to perform levirate divorce (Halitza)), by virtue of s. 3A of the Rabbinical Courts (Compliance with Divorce Judgments) Law, 5755-1995.

 

(d)           The freedom of worship is one of the basic values of the State of Israel as a Jewish and democratic state, and it is one of the principles listed in the Declaration of Independence (‘The State of Israel shall guarantee… freedom of religion…’) (see the discussion of its status in HCJ 1890/03 Bethlehem Municipality v. State of Israel [2005] IsrSC 59(4) 736; [2005] (1) IsrLR 98, at paras. 12-16, per Justice Beinisch, and the references cited there, including with regard to a conflict of rights, as well as the freedom of worship and the freedom of movement; see also HCJ 10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53, per Justice Procaccia). There are those who regard the freedom of worship as also falling within the scope of respect for rights under the Basic Law: Human Dignity and Liberty (see A. Barak, Legal Interpretation: Constitutional Interpretation (Heb.), at p. 430). It need not be said that this right of freedom of worship may conflict, and in the case of arrest or imprisonment it does conflict, with the provisions of the law concerning arrest or imprisonment (see s. 5 of the Basic Law: Human Liberty and Dignity). In such cases a balance needs to be reached on the basis of the specific circumstances, common sense and experience.

 

(e)           Matters of well-established and well-respected religious custom often come before the courts in Israel and elsewhere, and the question in this case is one of the proper balance between the right to communal prayer, even if its religious status is essentially and mostly that of a desirable practice, and the constraints of arrest. Obviously there is a difference, which does not need to be considered here, between compelling someone — Heaven forbid — to transgress a religious precept of a kind where ‘it is preferable to be killed rather than to transgress,’ on the one hand, and not allowing him to observe a desirable practice, on the other.

 

(f)            Approximately twenty years ago, the United States Supreme Court decided the case of Goldman v. Weinberger, 475 U.S. 503. In that case, an officer in the United States Air Force, an orthodox Jew, applied to be allowed to wear a skullcap in his unit’s facility on the ground that his constitutional rights (under the First Amendment of the United States Constitution, which guarantees the freedom of worship) were being violated by the Air Force Regulations that prohibited this. Indeed, the skullcap (a head covering has been a well-established practice for many generations among orthodox Jews) was presented by the petitioner there as a ‘silent devotion akin to prayer.’ The court decided, by a majority of five to four, against the skullcap (the law was subsequently amended to allow the wearing of the skullcap).

 

(g)           I have studied each of the collection of decisions on questions of prayer during house arrest that was presented by counsel for the appellant. They range from judicial decisions of every judicial instance that approved communal prayer at all prayer times, both for Jews and for Muslims, and decisions that approved certain times only. The background and the circumstances in these decisions vary from cases involving the disengagement from the Gaza Strip to cases in the ‘classic’ criminal sphere, such as assaults, indecency, etc.. There are also cases in which permission for communal prayer has been rescinded after it was given; there is a case of administrative house arrest in which the petitioner was not allowed in the circumstances of the case to leave the place of house arrest, but it was held that people could come to constitute a quorum of ten men (minyan) in the place where the petitioner was under house arrest (HCJ 5555/05 Federman v. Central District Commander (unreported)).

 

(h)           In my opinion, ultimately the attitude towards applications to be allowed to participate in communal prayers while under house arrest, both for Jews and for Muslims (the existing examples), as well as for members of other religious communities in accordance with what is accepted in their religions, should be one that inclines towards granting the application, where circumstances allow. However, every case should be considered on its own merits, and naturally there may be cases in which it will not be allowed. The court should consider — and this is what the courts do consider, to the best of my understanding, in such cases — the balance between the grounds for arrest in the law, such as the danger presented by the person under arrest, perverting the course of justice and fleeing from justice, on the one hand, and the desire to pray with the community, on the other. Each of these grounds should be examined, as well as the guarantors and the manner of carrying out supervision in cases that the court decides to approve.

 

(i)            In the present case, I have reached the conclusion that at this time it is possible to accommodate the appellant to some extent, and in this sense the appeal is allowed in part. Approximately two and a half months have passed since the arrest decision, and in the meantime the appellant has gone out twice a day to prayers during the month of Ramadan, and there is no report of his having breached that trust. I have taken into account the danger that he presents, as can be seen prima facie from the offence, but also the approach that was adopted in his case during Ramadan, and also, as aforesaid, in other cases. I have decided at this time to allow a two-stage arrangement: starting this Friday, 9 December 2005, the appellant may go to pray each Friday at the mosque. In so far as the arrangement is observed and there are no other breaches, and if he is still under house arrest, then from the beginning of March 2006 he may go to one prayer each day, which is the morning prayer between the hours of five and six in the morning, on each day apart from Friday, when he may go to the midday prayer. The mosque will be the closest one to the place of the house arrest; the appellant will be accompanied on each occasion by the supervisor, he will go directly to the mosque and will return directly from the prayer without delay. The guarantees that applied during the month of Ramadan when he was allowed out to go to pray will also apply here and compliance with them will be ensured. The other conditions of the house arrest will remain unchanged.

 

Given today, 5 Kislev 5765 (6 December 2005).