Disclosure of information

 

 

 

Justice U. Vogelman

Undoubtedly, information provided to a journalist with the intention that it not be published, and which could disclose the identity of the source, is protected by the journalist’s privilege discussed by President M. Shamgar in Citrin [1]. In my view, any other interpretation will render the principle of a journalist’s privilege, as outlined in Citrin [1], empty of substance. I therefore join in the determinations made in paragraphs 98 and 99 of my colleague Justice E. Rubinstein’s opinion, and in his holding that the state may petition the magistrate court to remove the privilege in accordance with the tests established in Citrin [1]. This does not mean that I take a position – in either direction – regarding the scope of the journalist’s privilege with respect to the handing over of information that will not necessarily lead to the exposure of the source of the journalist’s information, and I wish to leave that question for further review.

 

Decided per the opinion of Justice E. Rubinstein.

 

15^th of Kislev 5773

29 November 2012.

 

H.C.J 1601/90

H.C.J 1602/90

H.C.J 1603/90

H.C.J 1604/90

 

Advocate Meshulam Shalit

v.

M.K. Shimon Peres & Others

H.C.J 1601/90

 

 

Advocate Yitschak Ben-Israel

v.

Labour Alignment Knesset Faction & 9 Others

H.C. 1602/90

 

 

Eliad Shraga

v.

Knesset Speaker & 18 Others

H.C. 1603/90

 

 

Ronen Bar Shira

v.

M.K. Shimon Peres & 15 Others

H.C. 1604/90

 

 

 

In the Supreme Court Sitting as High Court of Justice

[8 may1990]

Before The President (Justice M. Shamgar), A. Barak J. and E. Goldberg J.

 

Editor's Summary

 

                The combined petitions in this case raise a single issue, i.e., whether agreements concluded between Knesset factions with a view to the establishment of a coalition government (referred to hereafter as "coalition agreements") are required to be brought to the attention of the public.

               

                In view of Israel's electoral system, resulting invariably in the representation in the Knesset of a large number of factions and the consequent need to establish coalition governments, the question is of considerable practical importance, and coalition agreements are indeed a regular feature in the process of formation of governments.

               

                Attorney for the Likud faction argued for the existence of a legal duty to publish coalition agreements, requesting the Court to define the parameters of such duty and submitting the agreements it had reached with other factions. The Labour Alignment asked the Court to give a ruling on the question whether a duty of disclosure exists or, in the alternative, to satisfy itself with the Alignment's willingness to publish its agreements. The United Torah Judaism - Agudat Yisrael faction submitted that the Court should recommend the legislature to enact appropriate legislation on the subject, or, alternatively, a way should be found to require disclosure of the agreements by all factions simultaneously.

               

                The Attorney General's response was that existence of a duty under public law to disclose coalition agreements was indisputable. Publication should coincide with presentation of the Government before the Knesset when it informs the Knesset of its basic political platform, and this has indeed become standard parliamentary practice.

               

         

          The High Court held as follows:

         

1.       Coalition agreements are an integral part of the Israeli governmental structure and electoral system.

 

2.       Such agreements are drawn up by persons holding public office who are elected by the public, and are therefore trustees of the public interest. Such position of trust, as well as a general duty to act in a fair manner, require them to make a full public disclosure of information at their disposal.

 

3.       The democratic process requires ongoing communication between electors and elected, which is not confined merely to election times and for this to be effective, the public as well as each individual voter, have right of access to full information to enable them to make the appropriate choice when elections take place. Hence the necessity for full disclosure of coalition agreements.

 

4.       Knesset members also have the same right of access to information as to the content of coalition agreements, so as to enable them to exercise their choice where a new government is presented before the Knesset for a vote of confidence.

 

5.       Disclosure of coalition agreements is also required in the interest of effective public scrutiny of their contents, thus ensuring their conformity with the law and enhancing public confidence in government administration.

 

6.       The duty to disclose coalition agreements is not an absolute one. Other interests, as for example those relating to security or foreign relations, or the need at times for political negotiations to be held away from the full glare of publicity may, in certain cases, require non-disclosure.

 

7.       The same principles apply to disclosure of agreements concluded between opposition factions, as to these concluded between coalition partners.

 

8.       On principle, there is nothing to prevent the Court from laying down specific rules with regard to disclosure of coalition agreements, to be derived from basic constitutional principles. The Court would thereby act in a creative, rather than an interpretative capacity, in the common law tradition, which has also been adopted by the Israeli legal system, especially in the field of administrative law.

 

9.       Nevertheless, the Court recommended that the whole field of political agreements be the subject of appropriate legislation by the Knesset, which should regulate, inter alia, the scrutiny of the contents of such agreements and details relating to their disclosure, these being matters which cannot be effectively dealt with by the courts.

 

          The Court therefore confined itself to laying down the general principle that political agreements must be disclosed, and the broad rules relating thereto, such as the timing of thereof, i.e. no later than presentation of the Government before the Knesset.

 

10.    The Court also dismissed the argument that section 15 of the Basic Law: The Government refers explicitly only to publication of the Government's political platform and therefore, ex silentio, coalition agreements do not require publication. The positive requirement to disclose such agreements should be derived from basic constitutional principles, as explained above.

 

 

 

Israel Suprement Court Cases Cited:

[1]   H.C. 133, 143 79 "Advocates in the Central District" List v. Election Committee, 33(3) P.D. 729.

[2]        H.C. 910/86 Ressler v. Minister of Defence, 42(2) P.D. 443.

[3]        H.C. 501/80 Zu'abi v. Abu Rabiah, 35(2) P.D. 262.

[4]        H.C. 669/86, 451, 456/86 Rubin v. Berger, 41(1) P.D. 73.

[5]        H.C. 262/62 Peretz v. Kfar Shmaryahu Local Council 16 P.D. 2101.

[6]   H.C. 142/70 Shapira v. Jerusalem District Committee of the Israel Bar, 25(1) P.D. 325.

[7]   H.C. 840/79 Motion 830, 860/79 Contractors and Builders Central Committee v. Government of Israel, 34(3) P.D. 729.

[8]   H.C. 1523, 1540/90 Levi v. Prime Minister of Israel; Mintzer v. Modai, 44(2) P.D. 213.

 

[9]   H.C. 680/88 Schnitzer v. Chief Military Censor. 42(4) P.D. 617. (also reported in 9 Selected Judgments, 77)

[10]      H.C. 372/84 Klopfer-Naveh v. Minister of Education and Culture, 38(3) P.D. 233.

[11]      H.C. 620/85 Mi'ari v. Knesset Speaker, 41(4) P.D. 169.

[12]      Cr. A. 71/83 Flatto-Sharon v. State of Israel and Counter appeal, 38(2) P.D. 757.

[13]      H.C. 1/81 Shiran v. Broadcasting Authority, 41(3) P.D. 255.

[14] H.C. 399/85 Kahana v. Executive Committee of the Broadcasting Authority, 41(3) P.D. 255.

[15] H.C. 531/79 Likud Faction in Petach Tikvah Municipality v. Petach Tikvah Municipal Council, 34(2) P.D. 566.

[16]      H.C. 143/56 Achjiji v. Traffic Controller, 11P.D. 370.

[17]      H.C. 73.87/53 "Kol Ha'am" Ltd. v. Minister of the Interior, 7 P.D. 871.

[18] F.H. 9/77 Israel Electric Corporation and Haaretz Newspaper Publication Ltd., 32(3) P.D. 337 (also reported in 9 Selected Judgments, 295).

[19]      Cr. A. 95, 99/51 Fumdenski v. Attorney General, 6 P.D. 341.

[20] H.C. 243/82 Zichroni v. Executive Committee of the Broadcasting Authority, 37(1) P.D. 757.

[21] H.C. 428, 429, 431, 446, 448, 463/86, 320/86 Brazilai vs. Govern­ment of Israel, 40(3) P.D. 505.

[22] Election Appeal 1/65 Yarador v. Chairman of Central Elections Committee for Sixth Knesset, 19(3) P.D. 365.

[23] Election Appeal 2/84 Neimann v. Chairman of Central Elections Committee for Eleventh Knesset; Avni v. ditto, 39(2) P.D. 225. (also reported in 8 Selected Judgments, 83).

[24]      H.C. 1/49 Bejarano v. Minister of Police, 2 P.D. 80.

[25]      H.C. 337/81 Mitrani v. Minister of Transport, 37(3) P.D. 337.

[26] F.H. 29, 30/84 Kosoi v. Bank Feuchtwanger Ltd.; Philico Finance and Investment Co. v. ditto, 38(4) P.D. 505.

 

English Cases Cited:

[29]      Scruttons v. Midland Silicones [1962] 1 All E.R. 1 (H.L.)

 

Objection to Order Nisi. Petitions allowed and Order Nisi made Absolute.

 

The petitioner in H.C. 1601/90 appeared on his own behalf.

 

            Advocates H. Meltzer and O. Kariv appeared on behalf of the first respondent in H.C. 1601/90, the first and second respondents in H.C. 1601/90, the first and second respondents in H.C. 1602/90, the third respondent in H.C. 1603/90 and the tenth respondent in H.C. 1604/90.

 

            Advocate E. Haberman appeared for the second respondent in H.C. 1601/90, for respondents 2-6 and 8-10 in H.C. 1602/90, respondents 4 and 19 in H.C. 1603/90, and respondents 1-7 and 9 in H.C. 1604/90.

           

            The petitioner in H.C. 1902/90 appeared on his own behalf.

           

            Advocate A. Palas appeared for the seventh respondent in H.C. 1602/90, and respondents 11-14 in H.C. 1604/90.

           

            Advocate M. Corinaldi appeared for the petitioner in H.C. 1603/90.

           

            Advocate N. Arad, Director of the High Court Division in the State Attorney's Office, appeared for the first and second res­pondents in H.C. 1603/90 and the sixteenth respondent in H.C. 1604/90.

           

            Advocates H. Cohen and S. Moran appeared for the petitioner in H.C. 1604/90.

 

 

JUDGMENT

SHAMGAR P:

            1. The proceedings in all the petitions before us were concerned with one question only: whether Knesset factions which conclude coalition agreements among themselves prior to the formation of a government are obliged to publish those agreements. On this we based our order nisi in this matter whereby the respondents were required to show cause "why agreements which were, and are, concluded in connection with, and prior to, a vote on the formation of a government under section 15 of the Basic Law: The Government, should not be published".

           

            2. The various respondents' replies to the order nisi were not uniform. Learned counsel for the Likud faction, Advocate Eitan Haberman, advocated the view that the court should recognise the existence of such an obligation and should outline its main elements. That respondent also submitted arrangements in writing which it had reached with various factions, namely:

           

            (a) Memorandum of a meeting between the Likud faction and the Degel Hatorah faction, on 18.3.90.

           

            (b) An agreement between the Likud faction and the Promotion of Zionism in Israel faction of 11.4.90, and an announcement by the Prime Minister published following thereon.

           

            (c) A document outlining cooperation between the Likud faction and the Shas faction.

           

            The Labour Alignment faction did not attach the agreements which they had reached to their reply; but declared that they would be prepared to publish them voluntarily. They asked that the court first give them directions, if it saw fit to do so, concerning the actual obligation to publish agreements, the manner in which they should be published and the practice relating there to while taking into account, inter alia, those legal rules and considerations presented to us by their learned counsel, Advocate Hanan Meltzer. And these are the questions to be considered:

           

            (a) The effects of the obligation to disclose on the Knesset Members (Immunity, Rights and Duties) Law, 1951.

           

            (b) Harmonisation between any possible ruling and the provisions of section 15 of the Basic Law: The Government.

           

            (c) The question of whether it would be right for the court to lay down principles instead of the Knesset formulating its position by way of legislation, as was done, for example, in the case of the Political Parties (Financing) Law, 1973.

           

            In sum, the court was asked:

 

"To determine whether there is room for a general ruling concerning disclosure of the agreements referred to in the order nisi, or to be satisfied - to the extent to which it deems this to be fit and just - with readiness to disclose them, without laying down any hard and fast judicial rules, leaving the constitutional questions presented and connected with the matter for further consideration, while bringing them to the notice of the legislature for its consideration.

 

In any event the honourable court is requested - if it should decide that there is room for publishing the agreements, in the light of the opinions of the parties before it - to give appropriate directions as to the manner of publication, its timing, the consents required for this purpose, and guarantee of mutuality and concurrence with the other factions and factors connected with the said agreements."

 

            The United Torah Judaism - Agudat Israel faction concurred with the arguments of learned counsel for the Labour Alignment faction. The following is the gist of the arguments presented by their counsel, Advocate Eiran Peles:

           

"In consideration of the special nature of coalition agreements and of the effects of an obligation to disclose them on the substantive immunity of Members of the Knesset and their rights, Agudat Israel will submit that the honourable court should recommend to the Knesset that they enact 'primary legislation' which should take account of the special requirements of a coalition agreement which is part of the agreements which come within the province of public law.

 

As the reference is to one of the agreements within the province of public law, Agudat Israel will submit in the alternative, that the court should determine the manner in which coalition agreements should be published simultaneously by all the factions and the form and method of publication in such a way as to prevent exploitation of such agreements by political elements, to ensure that the special character of the agreements be preserved and in such a way and timing as not to interfere with the ongoing conduct of negotiations for the formation of a government."

 

            Mrs. Nili Arad, Director of the High Court Applications Division of the State Attorney's Office, submitted the response of the Attorney General to the effect that "there is no disputing the existence of obligation to give publicity to agreements" which come within the province of public law.

           

            In so far as the timing of the publication is concerned, there is a recommendation in the above response that the publication coincide with the Government's presentation of itself before the Knesset, under section 15 of the Basic Law: The Government, in the course of which notice of the basic lines of its policy is announced since in any case according to the practice which has developed since the seventh Knesset the coalition agreements which have been concluded are tabled before the Knesset at this stage. The said response also referred to the significant question of legal validity of the agreements, in the light of their content, but we saw no cause for dealing with this question, because of the limits we outlined in our formulation of the order nisi.

           

            3. The political agreement as expressed in the coalition arrange­ments between Knesset factions prior to the formation of a government, is to a great extent the outcome of the structure of our political regime and of our system of elections.

           

            The Government functions by virtue of the Knesset's confidence. When a new government has to be formed, after elections or after a vote of no-confidence in the Government, and a member of the Knesset, who has been entrusted with this task, succeeds in doing so, the Government presents itself to the Knesset in order to receive a vote of confidence. At that stage its future policy is outlined.

           

            For many reasons, including the system of proportional representation, under section 4 of the Basic Law: The Knesset (see also section 81 (a) of the Knesset Elections Law, 1969, and H.C. 143, 133/79 [1] at p. 732) and the multiplicity of party factions in all the Knessets, from the first till the present one, it is generally necessary for the purpose of forming a government to obtain the prior consent of several factions to support the projected government. Till now there has never been a government consisting of only one party.

           

            The result of this need to receive the consent of several factions is inter alia, that an agreement, or several agreements, must be concluded between Knesset factions. In these agreements the subjects forming to the outlined future policy of the Government are regulated, as are additional questions concerning the compo­sition of the Government and the scope of its functions.

           

            The coalition agreement is, thus, an accepted device in Israel, as it constitutes a framework for political consensus among parties (H.C. 910/86 [2] p. 507), a means for filling posts in the Government and the executive authorities as an early stage, and similar matters. Even an agreement on the staggering of office amongst several candidates on the same list was brought before this court on one occasion (see H.C. 501/80 [3] with a view to obtaining its aid in enforcing it. This of course does not exhaust the subjects which can be regulated in such agreements.

           

            4. Is there an obligation to bring such agreements between factions, or between a faction and a member of the Knesset, to the notice of the public? The answer to this question lies in the nature of the sphere within which it falls and in the sources from which the agreement derives its values.

           

            Such an agreement falls within the scope of public law (according to my distinguished colleague, Justice Barak, in H.C. 669/ 86 [4].

           

            An agreement within the bounds of public law which deals with elections - to the Knesset, to a local authority or to a statutory public body - is not necessarily subject to the general laws of contract, but that does not mean that it is exempt from judicial review of its terms. As noted in the above judgment (at p. 78):

 

"we are concerned here with many and varied agree­ments covering several areas (political, social, eco­nomic) of public life. These agreements - so we assume - are made in all seriousness and with the intention of honouring them. It is mete not to remove these agreements from t he preserves of legal regulation and judicial review."

 

            These agreements are concluded by public functionaries chosen by the electors to carry out legislative and government functions. Thus the agreements are not intended for the purpose of arranging matters of private or personal interest:

           

"A public personality acts as a trustee on behalf of the public: He does not act on his own behalf but in the public interest. It is only natural, therefore, that agreements and promises made by him should be examined in accordance with the standards of public law..." (above). See also H.C. 262/62[5] p. 2115; H.C. 142/70 [6] p. 331, and H.C. 840/79 [7].

 

            In this context we held recently in H.C. 1523/80 [8] p. 214, that:

           

"...Statutory discretion must always favour the welfare of the public, and must be subject to the desire to forward the general good. Thus even in extreme and crucial instances, when there is a conflict of interests, the public interest always predominates."

 

            5. The nature of the arrangements, which are the subject of these proceedings, being public agreements, have direct repercussions on the following:

 

            (a) The norms which ought to be applied to the formulation and implementation of such agreements;

           

            (b) The function of the courts in respect thereof.

           

            The democratic process can only function on condition that it is possible to clarify openly all problems on the agenda of the State and exchange opinions about them freely. The continuity of the relationship between the elected and the elector loses, it is true, some of its direct nature and intensivity after the elections, but election does not sever the bond between the public and its elected representatives until the next elections. The whole political process is closely watched by the general public, which follows events attentively in order to be able to express ongoing opinions and in order to reach conclusions concerning the present and the future. Freedom of public opinion and knowledge of what is happening in the channels of government are an integral part of a democratic regime, which is structured on the constant sharing of information about what is happening in public life with the public itself. Withholding of information is justifiable only in exceptional cases where security of the State or foreign relations may be impaired or when there is a risk of harming some vital public interest (within the meaning of sections 44 and 45 of the Evidence Ordinance [New Version], 1971).

           

            Amongst those aims which a public agreement is designed to serve must performance be included the good of the public and preservation of the rules of fairness and integrity insofar as the functions contemplated by the agreement are concerned. The existence of such aims provides the foundation for the public's confidence in the system of government which they chose for themselves and provides one or other public figure with the opportunity of formulating ideas for the future. This applies not only to the general public but also to the individual member of the Knesset who is called upon to take a stand on the question of a motion of confidence in the Government as pronaed under section 15 of the Basic Law: The Government, or in the course of his parliamentary life.

           

            However, it is impossible for the public's confidence to be based on what is concealed, in the absence of the exceptional circumstances (referred to above) which are also the product of public interest, pure and simple, of a different kind. The guidelines with respect to the creation of a proper balance in exceptional circumstances, where the choice of one of the conflicting public interests may lead to the exclusion of the interest in free and full publication of information, where designated recently in H.C. 680/80 [9].

 

            But what is usual and accepted is that the preservation of the normative framework is ensured, first and foremost, by publication, and disclosure to the electorate in general and members of the Knesset in particular, of information concerning the governmented set-up, the actions of its components and the functioning of the elected representatives, in order to enable the public to see, know and judge.

           

            Denial of publication can water down the ability of the public to participate in political life (for a similar issue, see H.C. 372/84 [10] p. 238).

           

            Everything stated above concerning information about the parliamentary set-up and the executive applies, mutatis mutandis, to the public and normative characteristics of agreements such as those on which the petitions before us are based. Preservation of the character of an agreement in accordance with the standards consistent with its aims is dependent, to no small an extent, on its being brought to the notice of the public. The element of disclosure is the natural consequence of the confinement of the content of the agreement to matters of public interest for the general good.

           

            Public scrutiny is not only an expression of the right to know, but it is also an expression of the right to control.

           

            From this follows, also, the answer to the second question referred to above: that is the place, within this framework, of the courts. In the absence of judicial review there is no effective and immediate way of examining and enforcing the obligations imposed by public law. The existence of public law norms in general and review by the courts are interdependent and intertwined.

           

            6. It was argued before us that publication could be repugnant to the provisions of the Knesset Members (Immunity, Rights and Duties) Law and in particular to section 1 of that Law. I could find no basis for such concern. The statutory status of Knesset factions is not regulated in that Law but in the various statutes dealing with Knesset elections, and there is nothing in section 1 of the said Law or in any of its other provisions which affects the legal rights and duties of a Knesset faction.

 

            But, above all, there is nothing in the said Law to impete a normative definition of rules applicable to an agreement anchored in public law. The question of what, in the light of the provisions of section 1 of the above Law, are the possibilities for legal action, in the event that a member of the Knesset does not fulfil his obligation to disclose to the public the existence of a public agreement, is not an issue before us. In any event, such a question has no bearing on the very creation and existence of basic norm governing such agreements and the necessity of defining and declaring it. In other words, a member of the Knesset who chooses not to publish an agreement with a faction or with another member of the Knesset, will be entitled to immunity, but the definition of his omission as contravening desirable and correct norms of conduct, will remain.

 

            Mr. Meltzer argued, further, that a "negative" regulation can be derived from section 15 of the Basic Law: The Government that section mentions the publication of policy lines but at the same time makes no mention of coalition agreements, from which one can derive a negative by implication. I cannot accept this interpretation. One cannot learn from section 15 that the intention was to block the way to, or deny the existence of, other additional public obligations which are inherent in our democratic regime. Disclosure of information concerning agreements is not only an integral part of our basic conceptions, as explained above, but is a principle of democrat positive commands which must be observed in practice. Section 15 defines and summarises only those matters which are to the act of presenting a government, and there was no intention of making it cover all parliamentary proceedings prior to the presentation of a government. Proof of this can be found in the fact that coalition agreements have been tabled in the Knesset since the Seventh Knesset, without this being regulated in the above section 15.

           

            7. Learned consel for the Labour Alignment faction argued, as mentioned above, that it was preferable for the matter of publication of agreements to be regulated by primary legislation.

           

            We, too, are of the opinion that the matter deserves legislative regulation. Furthermore, in the present legal and constitutional situation every legislative enactment is preferable to an arrange­ment based only on judicial construction of constitutional concepts.

           

            However, once the matter has been brought before us on the initiative of the petitioners, we do not intend to leave the matter open without pronouncing upon it. As long as there is no enactment, it is only proper for this court, which maintains judicial control within the bounds laid down in section 15 of the Basic Law: The Judicature and on the basis of the basic constitutional precepts which are part and parcel of our law, to have its say and to lay down rules which should be applied in the absence of legislation.

 

            8. It is our view, therefore, that agreements between factions, or between a faction and a member of the Knesset, or between individual members of the Knesset, concluded in anticipation of the formation of a government, ought to be published, if they deal with the functions of the legislative or executive authorities.

           

            In this respect there is no substantive difference, in our opinion, where an agreement concluded prior to the formation of a government is concerned between a situation where a government has been successfully formed and one where an attempts to do so has failed .

           

            The timing of the publication should rightly be not later than the date of the anticipated presentation of the Government before the Knesset, under section 15 of the Basic Law: The Government, and the desirable place of publication, is that where the said functions take place, the Knesset. But, of course, the Knesset can lay down, in its Constitution, additional technical regulations with respect to the tabling and publication of the agreements.

           

            9. We hold, therefore, that the order nisi be made absolute and that the agreements, which are the subject-matter of the petitions, be made public.

 

BARAK, J.:

I concur with the judgment of my colleague, President Shamgar. In view of the importance of the matter I wish to add several comments concerning the legal source of the obligation to disclose political agreements prior to votes of confidence, and the role of this Court in formulating it. The subject of my comments is the political agreement concluded between factions or between in­dividual members of the Knesset in anticipation of a vote of confidence in the Government. An agreement of this nature can be between factions and members of the Knesset, who support the Government ("a coalition agreement"), or between factions and members of the Knesset who oppose the Government or abstain from voting ("an opposition agreement")

 

The Source of the Obligation

 

            1. Israel is a parliamentary democracy. The people elect parties or lists whose candidates are elected to the Knesset. "The Knesset is the parliament of the State" (section 1 of the Basic Law: The Knesset). The Knesset is the legislative authority. (both constituent and ordinary). It creates and topples governments. "The Government is the executive authority of the State" (section 1 of the Basic Law: The Government). It functions by virtue of the Knesset's confidence. The Knesset and the Government are two organs of the State which together with the courts make up the three central authorities of the State, exercising a process of mutual checks and balances (see C. Klein, "On the Legal Definition of a Parliamentary Regime and on Parliamentarism in Israel", Mishpatim 5/308).

           

            2. At the basis of this system of government is the right to vote vested in the citizens of the State, who elect the parliament, either by way of lists or parties. There is '"a competitive struggle for power, in the course of which a few individuals are elected as political leaders..."(Justice D. Levin, in Cr. A. 71/83 [12] p. 787). The political parties are the constitutional instruments through which the political will of the people is realised. Accompanying our system of elections we have a multi-party regime, which is based, by its very nature, on the formation of government coalitions. Political agreements become, therefore, a vital legal-political instrument, which in our constitutional regime is of great importance for the purpose of ordering political dealings. It is thus only natural that, citizens, by whose votes the governing organs (the Knesset) are constituted should be aware of the content of such agreements. So that just as citizens should know about the platforms of the parties, so should they know about the content of political agreements, which very often contain diversions from, or addena to, the political platforms.

 

            In the case of a political struggle between parties it is therefore obligatory that citizens be informed about the subjects and personalities connected with the political process. President Shamgar emphasised this in H.C. 1/81 [13], p, 378, when he said:

           

"The system of democratic government draws sus­tenance from - and is even dependent on - a free flow of information, to and from the public, regarding prominent matters which affect the lives of people in general and of the individual in particular. Thus the free flow of information is often regarded as a kind of key to the operation of the whole democratic system..."

 

            And I, too, stressed this on another occasion (in H.C. 399/85 [14] p. 274) when I noted that:

           

"Free exchange of information, opinions and views, not imposed by the authorities, in an attempt at mutual persuasion, is  sine qua non for the existence of a democratic regime, based on the rule of the people, by the people, for the people. Only in this way can it be ensured that every individual receives the maximum information he requires in order to reach a decision on matters of regime and government. A free flow of opinions allows for order by change in the balance of formces controlling government. Without freedom of expression democracy loses its spirit".

 

            Such information, which is vital for the existence of a proper democratic regime, also comprises data about political agree­ments. On the basis of this information the public can make a decision with respect to its representatives and their political attitudes and manner of functioning in the Knesset. Only with his information as a background can the public decide, on election day, one way or the other, and only on the basis of this information can there be a free exchange of opinions in the interval between elections.

 

            3. The obligation to disclose political agreements is grounded not only on the citizen's need to take up a political stand. There is another, immediate requirement connected with the formation of the Government itself. The Government is constituted when the Knesset has expressed confidence in it (section 15 of the Basic Law: The Government). Knesset members who participate in the vote of confidence must know what obligations the coalition partners forming the Government have taken upon themselves. If indeed the purpose of the political agreement is to direct future conduct, it is essential that information about the future influence of the agreement be available to members of the Knesset who vote on the formation of the Government. Indeed, we learnt from the Attorney General's response that in practice coalition agreements are tabled in the Knesset before a vote of confidence takes place.

           

            4. The obligation to disclose, as I have already noted, follows upon the need for the citizen, in general, and the member of the Knesset, in particular, to receive information which is vital for the purpose of making political decisions. This obligation has an additional aspect. If the parties to the agreement are curane that it will be exposed to public scrutiny and criticism, this will affect its actual content. It has rightly been pointed out that sunlight is the best of and elected light disinfectents the most effourt policeman (L. Brandeis, Other People's Money and How the Bantees use it (1914) ch. 5 p. 92. Indeed, exposure of political agreements will influence the legality of their contents. It will enable public review, increase the public's confidence in the governing authorities and strengthen the structure of the regime and the government.

           

            5. Till now I have concentrated on the relationship between the obligation to disclose political agreements and the system of government. I now wish to draw attention to an additional source for the obligation to disclose. This derives from the public function of the parties to such an agreement. A Knesset faction is a constitutional unit. A political party which participates in elections to the Knesset fulfils a constitutional function. The faction and the member of the Knesset have public functions based on law. They are not merely entities operating under public law. A parliamentary faction which, or members of the Knesset who, sign a political agreement do not act on their own behalf. They are trustees for the public. I pointed this out in H.C. 669/89 [4] at p. 78:

           

"...A public personality is a trustee of the public. He does not act for himself only, but does not in the interest of the public. So that it is only natural that agreements and promises made by him are examined by criteria of public law..."

 

            Because of the duty of trust which a public personality carries it follows that he has several obligations, including that of refraining from a conflict of interests (see H.C. 531/79 [15]), acting in accordance with public ethics (see I. Zamir, Ethics in Politics, Mishpatim 17, pp. 250, 261), or being under an obligation to disclose. A private person who has information may keep it to himself, and is under no obligation to disclose it save if the demands of good faith require him to do so (by virtue of section 39 of the Contracts (General Part) Law, 1973). This does not apply to a public personality. Information in this possession is not his private "property". It is "property" which belongs to the public, and he must bring it to the notice of the public. Justice H. Cohen commented on this as follows (in H.C. 142/79 [6] p. 331):

           

"The argument that in the absence of any legal obligation to disclose I am entitled to conceal and not reveal, can be proffered by a private individual or body... but it is not available to an authority which fulfils a function by law. A private authority differs from a public authority in that it acts in its own capacity, can import or withhold information at will, whereas a public authority is created solely to serve the community and has no interests of its own. Everything it has it holds as a trustee and has no additional, different or separate rights or duties of own, over and above those which derive from its position of trust or are vested or imposed on it by virtue of nacted provisions."

           

            Thus, duty to disclose emanates from the obligations of trust. But beyond this, the parliamentary faction which, or the individual member of the Knesset who, fulfils a public function of a constitutional nature, is under an obligation to act fairly. This obligation, too, emanates from the public nature of their functions. Just as the duty to provide reasons derived from the duty to act fairly (see H.C. 143/56 [16], so does the duty to disclose. It follows, therefore, that in order to ensure that public conduct be fair it should be exposed to the light of day, thus allowing it to be stratimised and clarified.

           

            6. Till now I have discussed two legal sources for the obligation to disclose: the nature of the regime and the public character of the agreement. There is a third source, which is entrenched in the public's right to know (see Z. Segal, "The Right of the Citizen to Receive Information about Public Matters", Iyunei Mishpat 625). It has been her that freedom of expression is one of the basic principles of our system of law (see H.C. 87, 73/53 [17]). Freedom of expression is a complex value, at the crux of which is the freedom "to express one's thoughts and to hear what others have to say.."(President Landau in F.H. 9/77 [18] p. 343). In order to realise this freedom the law vests the holder thereof with additional rights derived from the freedom of expression (see Cr. A. 99, 95/51 [19] p. 355). Among these additional rights it the "right to receive information" (H.C. 399/85 [14] p. 267). As against the individual's right to receive information is the governing body's study to provide that information (H.C. 243/82, [20]).

           

            From this comes the duty of public functionaries to inform the public. So that the obligation to disclose, which derives from the freedom of expression, is connected not only to the nature of the democratic regime but also - like the very freedom of expression itself - to the right of the individual in society to know that truth and be given the opportunity for self-fulfillment. The right to know is not only a right belonging to the public in general, but it is also the right of the individual.

 

            7. I have discussed the obligation to disclose political agree­ments. This obligation is not absolute. There are certain very important considerations in favour of restricting this obligation, namely security and foreign, economic and social relations, which can justify applying limitations on the obligation to disclose. So that just as every constitutional right is not absolute, so is the right to receive information not absolute. It must give way to certain other rights and to the need to take other interests and values into consideration. It is in the public interest that political negotiations be not conducted in the glare of publicity, and that the parties to those negotiations be given the means for their proper and efficient conduct. For this purpose secrecy is sometimes necessary. Often damage will be wrought to both public and private interests if political agreements are disclosed.

           

            We must therefore strike a balance between the various considerations against the background of our constitutional concepts. It follows from this balancing process that a political agreement does not have to be disclosed if it almost certainly would be to the detriment of the public interest in general - that is the interest of the State - to do so. So that, for example, a public agreement the exposure of which would almost certainly harm the security of the State or foreign relations should not be disclosed.

           

            8. The obligation to disclose, in the areas in which it operates, covers every political agreement connected with a vote of confidence. It therefore applies both to a coalition agreement and to an agreement between opposition factions. It is not logical, from the viewpoint of the obligation to disclose, to limit it only to coalition agreements. As to the timing of the disclosure, the leading principle should be that this should take place with the signing of the agreement. However, there could be appropriate considerations justifying postponement of the disclosure. The final date for disclosure should be immediately prior to the Government being presented before the Knesset and the holding of a vote of confidence.

           

 The Function of the Court

 

            9. In his arguments before us Mr. Meltzer contended that the obligation to disclose political agreements should be laid down by the legislative body and not by the courts. He noted that he was not disputing the competence of the power of the courts to rule on the obligation to disclose or the legitimacy of this function. But he maintained that it would be wiser for this obligation to be laid down in primary legislation, which would also regulate the relation­ship between the obligation to disclose and the immunity of Knesset members. I, too, am of the opinion that there is no formal problem about our recognising the obligation to disclose. This is a matter which has not yet been regulated specifically by public law and has been left to the autonomy of the private will.

           

            The demands of life call for regulation, but this does not come about in a vacuum. We derive a from well-known and accepted basic principles. On more than one occasion we have carved out a specific legal tule from basic constitutional concepts, such as, for example, the law applicable to amnesty (see H.C. 428/86 [21]), the election laws, based on "constitutional data" concerning the existence of the State and its democratic character (E.A. 1/65 [22] p. 384; E.A. 2/84 [23]), and the rights of man, in general, based on the fact that our country is a freedom-loving democratic State (see H.C. 1/49 [24]; H.C. 337/81 [25]). We have often derived specific legal rules from basic principles, such as, for example, the principle of freedom of expression (see H.C. 73/53 [17] H.C. 680/88 [9]) or from the criteria of the trust obligation (see H.C. 531/79 [15]) or the fairness obligation (H.C. 840/79 [7]). This is not a judicial interpretative function. It is also not a judicial function aimed at filling a lacuna. It is a judicial function whose object is development of the law.

           

            The history of the common law is a history of development of the law by judges. The history of broad areas of our law - characterised by mixed system of law - is a history of judicial creativeness. Most of our administrative law is judicial law. The law of tenders, the rules of natural justice, the rules against conflict of interests, the code of administrative discretion, are all judicial creations aimed at development of the law. This court has operated in a similar matter in the field of private law. My colleague, President Shamgar, referred to this when he pointed out (in F.H. 30,29/84, [26] p. 511) that:

 

"Just as the common law, which did not consist only of the interpretation of expressions, was created in England, so has the independent possibility of develop­ing a common law, not necessarily through the merl interpretation of expressions, been brought about here."

 

            And Justice Witkon expressed a similar idea (in H.C. 29/62 [27] p. 1027), when he said:

           

"More than once has this court recognised rights which do not appear in any legal provision, and these rights, having received judicial approval, have taken shape and crystallised into rights recognised by law. Matters in common practice and within the concepts of natural justice which only yesterday were still featureless and underined have in this manner been given an impetus and awarded the status of rights. That is judicial development, which occurs side by side with the legislative function but does not trespass on its territory, and I would not wish to implide its develop­ment such a polver provides guarantee.

 

            See also A. Witkon, "The Material Right in Administrative law" (1983) 9 Iyunei Mishpat, 5.

           

            This judicial function is usually performed in reliance on the basic principles of the legal system, and thereby new rights and duties come into being. In that way a link between reality and the law is created. Thus the law progresses and develops in a natural manner together with the judicial process (see O. Dixon, "Concerning Judicial Method" Austl. L.J. (1955-6) 468). Therein lies the "genius" of development by judicial precedent (in the language of Simonds J. in Scruttons v. Midland Silicones [29]). The new legal plant grows in the soil of the old law. Such growth allows for change coupled with stability, movement coupled with marking time, creativity coupled with continuity.

           

            10 The judicial function of developing the law is limited. The judge may not act contrary to enacted law and must remain within its framework. He must operate with the interstics of the law. According to Justice Landau (in "Rule and Discretion in the Administration of Justice" Mishpatim, 292, 297: (1968)

           

"As the field of enacted law widens, the judge's use of discretion is confined to the limits of the law; and the area open to the use of discretion by the judge through independent judicial legislation becomes more limited. But even after such enactments the courts return to weaving anew man the their interpretative around the provisions of the enacted law, or interstitially, in the famous words of Justice Holmes."

           

            Within the framework of this "weaving" the court must weigh up whether it would not be preferable, in the specific case before it, to refrain from all creative action and leave the task of developing the law to the legislature (see C.A. 518/82 [28] p. 120).

           

            There are fields in which judicial activity is possible but not desirable. I do not think that the matter before us comes within this field. As already stated, we have founded the obligation to disclose on well-known basic principles. This activity of ours it no different from similar operations in the past, such as imposing the duty to give reasons (before the law on this subject was enacted), the imposition of the rules of natural justice, the imposition of the duty to refrain from a conflict of interests, and of other duties incumbent on government authorities.

           

            In reaching this conclusion I was encouraged by the position of the Attorney General, who stated that in his opinion there is an obligation under case law to disclose political agreements even without any statutory provision. I was also helped considerably by the attitude of the Likud faction, one of the largest factions in the Knesset, which was also of the opinion that actions and members of the Knesset are obliged to make public political agreements concluded amongst themselves prior to the formation of a new government.

 

            12. Nevertheless, it is advisable for the legislature to consider the subject of political agreements. As judges we can lay down general principles. We cannot rule on specific arrangements. We cannot impose the task of examining the content of agreements on a competent authority (such as the Knesset Speaker or the State Controller) nor can we create a "registry of political agreements or lay down details concerning methods of disclosure.

           

            All these matters demand legislation, which will take into account all the possible problems which can arise. But as long as the legislature has not had its say, we have not alternative but to give expression to the basic principles contained in our system of law. And this we have done.

 

 

E. GOLDBERG J.:

 

            None of the parties before us challenged the competence of this court to lay down an obligation to disclose coalition agreements and between opposition factions agreements. The legal principles on which my distinguished colleagues based the obligation to disclose are also acceptable to me. I had some doubts about whether to exercise our competence since all the parties were ready to disclose the agreements they had concluded, even in the absence of any obligation to do so. The "natural" authority which should provide the framework and content for a constitutional matter of the first degree, such as the one with which we are dealing here, is not the judicial authority, but the legislative one. I am of the opinion that even when norms of administrative law are lacking, it is not always the duty of this court to develop them by way of judicial legislation, when it is the duty of the Knesset to legislate. If I finally decided to concur with my colleagues it is because I think that if the matter is left completely open until there is statutory action, and if the matter of disclosure is left to the good will of those who conclude the agreements, then we will not have avoided the risk of damaging the fabric of our public life, with all the implications thereof.

 

I therefore concur with my colleagues' opinion.

 

Decision in accordance with the President's judgment.

 

Judgment given on 8.5.1990.

 

HCJ 4293/01

 

1. New Family

2.         Dr. Ruth Zimmerman-Shahar

3.         Dr. Ron Shahar

4.         A Minor

5.         David Ben Nahum

 

v.

 

Minister of Labor and Welfare

 

 

The Supreme Court sitting as the High Court of Justice

[24 March 2009]

 

Before President D. Beinisch, Vice President E. Rivlin and

Justice A. Procaccia

 

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

 

Facts:     The institution of intercountry adoption of children in Israel, i.e. the adoption in Israel of children from abroad, is regulated by the Adoption of Children (Amendment no. 2) Law, 5756-1996.  By virtue of his authority under this Law, the Minister of Labor and Welfare has issued “Rules and Professional Guidelines for the Operation of a Recognized Non-Profit Organization”, rule 4(b)(1) of which states that a person wishing to adopt a child in the framework of an intercountry adoption will not be deemed eligible to do so if the age difference between himself and the child exceeds 48 years on the date of submission of the application to adopt. According to the petitioners, this maximum age difference rule is unlawful and must be struck down, in that it is incompatible both with fundamental constitutional principles, and with proper administration. Alternatively, the petitioners are asking the Court to order that the rule be amended to the effect that the recognized non-profit organization – the adoption association – is granted discretion to approve eligibility for adoption even when the age difference between the prospective adopter and the child exceeds 48 years, when special circumstances justify so doing; and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the excessive age difference.

The High Court (per President Beinisch, Vice-President Rivlin concurring and Justice Procaccia dissenting), granted the petition in part.

Held: On the constitutional plane, the Court considered the question of whether people seeking to adopt a child had a constitutional right to do so; if so, what were the nature and origins of this right and did the state have a correlative duty to enable realization of such a right. Although the Justices in the majority were of the opinion that no such constitutional right exists, President Beinisch, writing the majority opinion, held that in the circumstances of the case, no ruling was required on this question, and in view of its sensitivity and complexity, it is best left with no firm determination.

On the administrative plane, the Court held that the rule is reasonable and does not discriminate unlawfully against prospective intercountry adopters vis-à-vis other groups such as persons adopting domestically, biological parents and people entering into embryo carrying agreements. Nevertheless, the majority Justices held that the negation of discretion to depart from the rule in special, justified circumstances was not reasonable.  This conclusion does not, however, dictate that the private adoption associations be granted discretion in respect of the rule; rather, according to President Beinisch, the correct interpretation of s. 36A of the Adoption of Children Law, 5741-1981, is that the statutory appeals tribunal established by virtue of the Law is authorized to consider requests to depart from the rule in intercountry adoptions, in special circumstances. In this sense, the Court granted the petition in part by recognizing the possibility of departure from the rule. The Court dismissed the concern of the respondent that allowing exceptions to the rule would deflect the focus of attention from the best interests of the child to the interests of the prospective adopters, stating that no major breach of the bounds of the rule was entailed by the existence of a statutory mechanism for considering exceptional cases, and that suitable criteria would be formulated by the appeals tribunal for this purpose.

 

Legislation cited:

Adoption of Children Law, 5741-1981, and ss. 3, 4, 5, 6, 36a, 25, 28H, 28N

Adoption of Children (Amendment no. 2) Law, 5756-1996

Basic Law: Human Dignity and Liberty 1992; and s. 1A, 2, 4

Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996

National Health Insurance Law, 5754-1994 (Second appendix)

National Health (IVF) Regulations, 5747-1987

Youth (Care and Supervision) Law, 5720-1960

 

Israeli Supreme Court cases cited:

[1]     HCJ 243/88 Consellos v. Turgeman [1991] IsrSC 45(2) 626.

[2]     HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior (2006) (unreported).

[3]     CA 2266/93 Anon. v. Anon. [1995] IsrSC 49(1) 221.

[4]     CA 3009/02 Anon. v. Anon. [2002] 56(4) 872.

[5]     HCJ 2245/06 MK Neta Dobrin v. Prisons Service (2006) (not yet reported).

[6]     LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents (2005) (not yet reported).

[7]     CFH 2401/95 Nahmani v Nahmani [1996] IsrSC 50(4) 661.

[8]     HCJ 2458/01 New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [2003] IsrSC 57(1) 419.

[9]     HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [1992] IsrSC 46(2) 464.

[10]   CA 7155/96 Anon. v. Attorney General [1997] IsrSC 51(1) 160.

[11]   CA 5587/93 Nahmani v. Nahmani [1995] IsrSC 49(1) 485.

[12]   CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [2003] IsrSC 57(5) 385.

[13]   CFH 7015/94 Attorney General v. Anon. [1996] IsrSC 50(1) 48).

[14]   HCJ 415/89 Alon v. Child Services [1989] IsrSC 43(2) 786.

[15]   CA 10280/01 Yarus-Hakkak v. Attorney General [2005] IsrSC 59(5) 64.

[16]   CA 577/83 Attorney General v. Anon. [1984] IsrSC 38(1) 461.

[17]   LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [2005] IsrSC 59(1) 596.

[18]   HCJ 4769/90 Zidan v. Minister of Labor [1993] IsrSC 47(2) 147.

[19]   HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1.

[20]   HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [1988] IsrSC 42(2) 309.

[21]   HCJ 217/80 Segal v. Minister of the Interior [1980] IsrSC 34(4) 429.

[22]   HCJ 935/89 Ganor v. Attorney General [1990] IsrSC 44(2) 485.

[23]   HCJ 558/79 Jamal v. Jewish Agency [1980] IsrSC 34(1) 424.

[24]   CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [1975] IsrSC 29(1) 22.

[25]   HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [1982] IsrSC 36(2) 1.

[26]   CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [1990] IsrSC 44(1) 661.

[27]   HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [1992] IsrSC 46(1) 191.

[28]   HCJ 98/69 Bergman v. Minister of Finance  [1969] IsrSC 23(1) 693.

[29]   HCJ 678/88 Kfar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[30]   HCJ 6051/95 Recanat v. National Labor Court [1997] IsrSC 51(3) 289.

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

[32]   HCJ 59/88 Zaban v. Minister of Finance  [1988] IsrSC 42(4) 705.

[33]   HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [1994] IsrSC 58(2) 358.

[34]   HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [1983] IsrSC 37(2) 115.

[35]   HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister [1998] IsrSC 52(4) 193.

[36]   HCJ 20594 Nof v. State of Israel – Ministry of Defense [1996] IsrSC 50(5) 449.

[37]   FH 10/69 Boronowsky v. Chief Rabbi of Israel [1971] IsrSC 25(1) 7.

[38]   LFA 5082/05 Attorney General v. Anon. (2005) (unreported).

[39]   CrA 3439/04 Bazak (Buzaglo) v. Attorney General [2004] IsrSC 59(4) 294.

[40]   HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728.

[41]   CA 1165/01 Anon. v Attorney General [2002]  IsrSC 57(1) 69.

 

 

For the petitioners – S. Oren; I. Rosenblum.

For the respondent – E. Golomb.

 

 

JUDGMENT

 

Justice A. Procaccia

1.    The Adoption of Children (Amendment no. 2) Law, 5756-1966 (hereinafter: “the amending Law”) regulated, for the first time in Israel, the institution of intercountry adoption. It established that intercountry adoptions will be carried out by means of non-profit organizations whose sole purpose is to operate in the area of these adoptions (hereinafter: “adoption associations”); these adoption associations were granted recognized status for this purpose. Section 28[37] of the amending Law authorizes the Minister of Labor to lay down rules and professional guidelines for the operation of a recognized adoption association. By virtue of this authorization, in 1998 the Minister of Labor and Welfare issued “Rules and Professional Regulations for the Operation of a Recognized Adoption Association”. These Rules lay down the following provision in relation to the maximum permissible age difference between adoptive parents and the child who is a candidate for an intercountry adoption:

4(b)            An adoption association will not certify that an applicant is eligible to adopt a child, if, on the date of submission of the application, one of the following applies to him:

(1)  The age difference between the applicant and the child exceeds 48 years; if the applicants are a couple, the age difference between each of the applicants and the child exceeds 48 (Official Gazette 5758, at p. 1580) (hereinafter:  “the maximum age difference rule”).

This provision, amongst the other rules, prescribes how the recognized adoption association must examine the application of prospective adopters, and in what circumstances the application to adopt cannot be approved due to the age difference between the prospective adopter and the child, which exceeds the maximum permissible difference.

2.    The petition is primarily concerned with review of the constitutionality of the rule that sets a maximum age difference between the person seeking to adopt and between the child as a preliminary condition of adoption. According to the petitioners, a conclusive determination concerning the maximum age difference as aforesaid is unlawful, and it must be struck down, both because it is contradictory to fundamental constitutional principles, and because it does not comply with the criteria for proper administration. Alternatively, the petitioners request that the Court order that the maximum age difference rule be changed so as to reduce the damage that it may cause; their suggestion is that a recognized adoption association be granted discretion to approve adoption even when the age difference between the prospective adopter and the child exceeds 48 years, in cases in which special circumstances prevail, and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the age difference exceeding the maximum.

The parties

3.    Petitioner no. 1 is an organization that operates for the advancement of the rights of families in Israel, and to promote recognition of the family as a constitutional unit. Petitioners nos. 2 and 3 are a couple who have one minor child, whom they adopted in Guatemala (petitioner no. 4). Petitioner no. 5 is a widower and father of two minor children, who were adopted by him and his late wife in the United States. Petitioners nos. 2 and 3 and petitioner no. 5 all applied to adopt another child from abroad, since their age prevents them from  adopting a child locally. Each sought to adopt a new-born child in order to raise him from the time of his birth. Pursuant to the maximum age difference rule, the adoption of a new-born child was not approved, due to their age on the date of submission of the application, which exceeded the maximum allowable age difference. Petitioner no. 2 was born in 1950, petition no. 3 was born in 1949, and petitioner no. 5 was born in 1948. At the same time, intercountry adoption of children was approved for these petitioners, whose ages at the time of the applications complied with the maximum age difference rule.

The respondent is the Minister of Labor and Welfare, who is the competent authority in relation to setting the rules that are the subject of this petition.

The arguments of the petitioners

4.    The petitioners claim that the maximum age difference rule is unlawful both from a constitutional and from an administrative point of view. Regarding the constitutional plane, it was contended that the right to a family is a constitutional right that embraces the right to parenthood, which may be realized in any manner whatsoever – be it by way of natural parenthood or by way of adoption. As such, the right to adopt is a constitutional right protected by Basic Law: Human Dignity and Liberty 1992. The maximum age difference rule violates the basic right of prospective adopters to a family, by setting a rigid, inappropriate ceiling, and it does not allow for deviation even in special circumstances.  According to the argument, this violation of the basic right to a family and to parenthood does not comply with the limitations clause in the Basic Law. The rule is not derived from explicit authorization in the Law, it does not befit the values of the State, it is not intended for a proper purpose, it is not proportional, particularly in view of the fact that it was introduced as a categorical provision allowing no discretion, and without any room whatsoever for special exceptions. According to the petitioners, the said rule is deeply damaging not only to people who seek to adopt, but also to the best interests of the child who is a candidate for intercountry adoption, since handing him over for adoption to a couple in Israel, even if the parents are older, is preferable on his part to leaving him to grow up in difficult circumstances in his country of origin.

5.    On the administrative plane, the petitioners argue that the maximum age difference rule suffers from extreme unreasonableness in setting a rigid allowable age difference, without proper factual or scientific basis; moreover, it creates grave discrimination and a violation of equality between, on the one hand, the petitioners and others like them who wish to adopt, and between other population groups – such as natural parents who may bring children into the world with whatever age difference without state interference; similarly, the state does not interfere in the decision of couples to bring a child into the world by means of a surrogate mother by virtue of the Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996 (hereinafter: “Embryo Carrying Agreements Law”) or by other artificial means of reproduction undertaken by the mother that lead to natural birth. Moreover, discrimination exists between the domestic arrangement governing adoption, in respect of which a flexible age difference rule, allowing for deviation, has been set, and intercountry adoption, in respect of which the rule is rigid and has no allowance for special circumstances.

The arguments of the respondent

6.    The respondent rejects the basic point of departure of the petitioners’ arguments, whereby they have a constitutional right to adopt a child. In his view, the right to adopt is not recognized by either Israeli law or International law as a basic constitutional right.  The right to natural parenthood is, indeed, recognized as a basic right, as a component of respect for the autonomy of the individual in society, and the conception of non-intervention of the state in a person’s intimate decisions concerning the establishment of a family blends into this. The institution of adoption, on the other hand, focuses on the welfare of the child, and the interest of those seeking to adopt in realizing their parenthood is ancillary and secondary to the principle of the best interests of the child.  People who wish to adopt do not have a right to adopt; a fortiori they do not have a constitutional right to adopt. Their desire to adopt will be realized only to the extent that it is compatible with the principle of the best interests of the child who stands before them at the center of the laws of adoption. Adoption is a subject of a public nature, which involves the formulation of rules and their application in all that concerns handing children over for adoption in order to promote their welfare. It is not like the right to natural parenthood, the essence of which is the freedom to bear children without the intervention of the state. The respondent further argues that even if a constitutional right of the petitioners to adopt were recognized, and even on the assumption that this right was breached as a result of the maximum age difference rule – even then this would be a proportional violation that was intended for a proper purpose, i.e., protection of the best interests of children adopted in intercountry adoptions.

7.    With respect to the administrative plane, it was argued that the maximum age difference rule conforms to the criteria of propriety according to the rules of administrative law. The rule was adopted in light of purely professional considerations, in accordance with the recommendations of the Advisory Committee to the Minister. The contents of the rule are reasonable, it was intended to promote the best interests of the child, and it does not discriminate between the petitioners and others like them who wish to adopt, and between other groups.

Before embarking on an in-depth analysis of the arguments of the parties, we will describe the background to the institution of intercountry adoption and the rationale underlying the Israeli legislation. What we say has direct ramifications for the question under discussion in this case.

Intercountry adoption – general background

8.    The amending Law, passed by the Knesset on 1 May 1996, regulates, for the first time, the question of intercountry adoption in Israeli law. The amendment was conceived against the background of a legislative procedure that originated in a government bill (Adoption (Amendment) (Intercountry Adoption) Bill, 5754-1994 451) and private bills that were consolidated into one bill (Adoption of Children (Intercountry Adoption) Bill, 5756-1995, Draft Laws. 5756, 238). The Bills were discussed together in the Knesset Law and Constitution Committee, which drafted the bill that was eventually brought for the approval of the Knesset. The Amendment was enacted against the background of a reality in which the number of Israelis who applied to adopt children from outside of Israel had grown, due to the scarcity of children available for adoption in Israel in relation to the large number of people seeking to adopt, which resulted in many people having to enduring long waiting periods. This scarcity created a widespread phenomenon of adoption by Israeli couples through non-conventional, non-regulated channels, sometimes without the children even being registered in the local registry. Some Israelis were even involved in illegal acts of abduction of and trade in children (for example, HCJ 243/88 Consellos v. Turgeman [1]). The sad plight of many Israelis who sought to adopt a child abroad after they failed to adopt in Israel, and the many difficulties that accompanied such adoptions due to concern for the status of the child in Israel, led to legislative initiatives in the Knesset to resolve this difficult situation (see for example, the comments of MK Limor Livnat, Knesset Proceedings 24.5.94, at p. 7494; and MK Avi Yehezkel, ibid., at p. 7487).

9.    This distressing situation led, in the end, to the amendment of the Adoption of Children Law, 5741-1981 (hereinafter: “Adoption Law”), by means of the creation of a detailed statutory arrangement for the intercountry adoption of children in Israel. Intercountry adoption is not exclusive to Israel. The need to regulate intercountry adoption intensified in many states in light of the development of criminal activities involving the abduction of and traffic in children in connection with adoption (N. Maimon, Child Adoption Law (1994), at pp. 597-599). Against this background, the Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (hereinafter: “Convention on Intercountry Adoption”) was signed in The Hague in 1993. The aim of the Convention is to create a system of cooperation between different states in order to ensure the welfare and best interests of children who are handed over for foreign adoption, and to prevent trafficking in children (art. 1 of the Convention). Israel signed the Convention on 2.11.1993 and ratified it on 28.12.1998 (Kitvei Amana 1258, vol. 41). The government bill is a result of Israel’s adoption of this Convention, which required extensive deployment, including changes in internal legislation and the establishment of bodies to deal with intercountry adoption in Israel.

10.    This arrangement of intercountry adoption was intended to provide a response to childless Israelis who encountered difficulties in adopting children in Israel, and to facilitate the process of adoption for them by means of adoption of a child from abroad. It was intended to ensure that the process of intercountry adoption would be carried out in a proper manner and by a legal process. The arrangement was also intended to confer recognition on the status of children who were adopted in intercountry adoptions before this subject was regulated by law. At the same time, it is important to emphasize that although the background to the legislation was the intention to alleviate the plight of those seeking to adopt, and to open up to them new avenues that would answer their yearning for parenthood, the arrangement of intercountry adoption should not be understood as deflecting the focus of adoption from the best interests of the adopted child to the wellbeing of those seeking to adopt. The purpose of the arrangement is to find an appropriate response for children who cannot be raised by their natural families for one reason or another, and who are in need of a home with an adoptive family. The best interests of the child was and remains the central axis around which the laws of adoption, including intercountry adoption, are built (this found expression in the words of MK Zandberg during the deliberations on the first reading of the amending Law in the Knesset (Knesset Proceedings 24.5.94, at p. 7500).

11.    This protection of the best interests of children adopted in intercountry adoptions is manifest in s. 28D of the amending Law, which states that a recognized adoption association is obliged to act “in such manner as to safeguard the best interests of the child and with respect for his basic rights, including those that are recognized in International law; the recognized adoption association will also have a fiduciary obligation in relation to any person who has applied to it to adopt a child . . ., as long as this is not detrimental to the fiduciary obligation vis-à-vis the child” [emphasis added]. This provision was explained by the Chairman of the Law and Constitution Committee during the deliberations on the draft law at the second and third readings:

‘We hereby establish that the adoption association has an absolute fiduciary obligation to the principle of the welfare of the child, and a fiduciary obligation to the adopter – again, as long as the principle of the welfare of the child is not affected. The principle of the welfare of the child overrides all other interests, including the fiduciary duty to the adopter’ (Knesset Proceedings 11.3.1996, at p. 5151) [emphasis added].

12.    On the international level, too, intercountry adoption arrangements are founded on the concept of concern for the best interests of the adopted child. The adoptive parents are not at the focus of attention of this law. The aspiration to safeguard the best interests of the adopted child as a central purpose of the intercountry adoption arrangement is evident in the Convention on Intercountry Adoption, the Preamble to which declares that the states signatory to the Convention [are] “[C]onvinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.”  Protection of the best interests of the child is included in the objectives of the Convention as follows: 

Article 1: The objects of the present Convention are -

a)  to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law [emphasis added].”

Two additional international documents that emphasize the need for special protection of the child in an intercountry adoption are the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, and the Convention on the Rights of the Child, adopted by the United Nations in 1989, which Israel joined in 1991 (Kitvei Amana 1038, vol. 31, at p. 221).  These two international documents also state the need to compare the criteria governing internal and intercountry adoptions.  Art. 20 of the Declaration states:

‘In intercountry adoption, placements should, as a rule, be made through competent authorities or agencies with application of safeguards and standards equivalent to those existing in respect of national adoption. In no case should the placement result in financial gain for those involved in it.’

Art. 21 of the Convention on the Rights of the Child, which deals with adoption, states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

. . .

(b)        Recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c)        Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it’ [emphasis added].

13.    Precisely because the motivation for intercountry adoption is the distress of prospective adopters who do not manage to adopt in Israel, particular importance is attributed to the emphasis placed – in intercountry adoption as in domestic adoption – on the obligation to position the best interests of the child as the paramount consideration in all situations. In the real world, there is liable to be some discrepancy between the criteria for domestic adoption and intercountry adoption, if only due to the significant difference in the number of children available for adoption in each of these spheres. Experience demonstrates that as the number of candidates for adoption decreases, so the criteria for adoption become more rigid and stricter. The institution of intercountry adoption arouses concern for a conceptual obfuscation between the interests of the adopters and the best interests of the child. This obfuscation creates difficult moral dilemmas, as noted by N. Maimon in her book:

‘The supporters believe that encouragement should be given to such [intercountry – A.P.] adoption, which saves children and babies from life in institutions, from poverty, homelessness and even death . . . The supporters point out that intercountry adoption attests to the desire to save homeless children and it may well bring down barriers between western states and the states of origin of the children. They also cite studies that demonstrate success in intercountry adoption. The opponents of intercountry adoption, on the other hand, claim that such adoption cuts the children off from their heritage and their culture, and integrates them into a culture that is alien to them. This is liable to create problems of identity in the children when they are older. They further claim that the children taken for adoption are white children who are sought after by childless couples . . . and that there is no demand for children who roam the streets. The opponents point out that intercountry adoption is designed to serve the purposes of childless couples from the West, and it is not the best interests of the child that are foremost in their concerns, and that the one-sided transfer of children from poor to rich countries, from their culture to a culture that is alien to them, will not break down cultural and political barriers. The best interests of the children, so say the opponents, requires that states in the West aid the poor states and the families who struggle to raise their children, and that they supply funds and help in establishing proper welfare systems, so that the children remain in the states with their own culture and tradition. The opponents further argue that intercountry adoption causes crime, trafficking in children, placement of children with couples who have been rejected as adoptive families by the welfare authorities in their own countries’ (Maimon, supra, at pp. 593-594).

The moral difficulty inherent in the blurring the boundaries between the interests of those seeking to adopt and the best interests of the child was addressed by MK Yitzhak Levy during the debate in the Knesset, as follows:

‘. . . Israeli society applies pressure, and because Israeli society applies pressure, the Knesset proceeds to enact a law for bringing children from abroad. When children are brought from abroad, the concern is not for the children [but] for the parents (Knesset Proceedings 11.3.96, at p. 5155; emphasis added).

These concerns are not baseless. They obligate the state to be particularly careful in safeguarding the interests of children adopted in intercountry adoptions, and to take special care not to become a tool whose main purpose is to enable realization, come what may, of the aspirations of those seeking to adopt a child.

14.    Finally, to conclude these preliminary remarks, it is important to point out the significant innovation in the new statutory arrangement, namely, that intercountry adoption will be carried out through recognized adoption associations, the supervision of which is the responsibility of the Ministry of Labor and Welfare. In this, intercountry adoption differs from domestic adoption, which is in the hands of the Child Services under the supervision of state authorities and the Ministry of Labor and Welfare. Regulation of intercountry adoption by means of the recognized adoption associations has both advantages and disadvantages. On the one hand, action through the adoption associations is particularly efficient with respect to the connection with the foreign states, and it provides an effective response to the needs in this area; on the other hand, placing the determination of the eligibility to adopt in the hands of private organizations, with all the implications thereof, is a complex matter that naturally requires strict, meticulous supervision on the part of the state authorities. The balance between these advantages and disadvantages is achieved by conferring various powers on the adoption associations, including the determination of eligibility of a person seeking to adopt; and parallel to this, establishing various criteria for recognizing these associations, imposing various obligations on them, and supervising their activities by means of a central intercountry adoption authority, in the person of a chief welfare officer, to be appointed by the Minister of Labor and Welfare (s. 28B of the Law). The appropriate balance for the proper and effective operation of the adoption associations is also achieved by means of rules and guidelines for their operation, which the Minister of Labor and Welfare is authorized to prescribe by virtue of s. 28 [37] of the amending Law, pursuant to which the rule at issue in this petition was introduced. Matters were presented as follows in the debate on the amending Law at the second and third readings:

In the bill presented by the Government of Israel, it was proposed that intercountry adoption be supervised and administered by the Government, by the Ministry of Labor and Welfare. On the other hand, several private bills were tabled . . . We decided that intercountry adoption will be carried out by adoption associations, for whom we set very rigid, very strict rules of recognition. We must struggle and fight and take precautions at all times against erring, and being in a position –which is familiar to many, or some foreign states – in which there is in fact traffic in children. The assumption is that these adoption associations [will be] under very rigid supervision – and this will be the task of the Ministry of Labor and Welfare . . . And because they will have a proven record and proven professional capabilities, they will perform this task better than the Government. They have greater freedom to do this work in the Ukraine or Brazil or Rumania, and they will raise the total number of child adoptions. As we have said, extremely strict conditions’ (Chairman of the Law and Constitution Committee, Knesset Proceedings 11.3.96, at p. 5150; for the different positions on this subject, see: the two bills above and the debate on the first reading, ibid., 24.5.94, at p.7485 ff.).

Decision

15.    The petitioners’ arguments challenge the maximum age difference rule on two fronts: the constitutional front and the administrative front. On the constitutional front, the petitioners seek to convince us that the right to adopt is a constitutional right that inheres in the right to a family and to parenthood. The maximum age difference rule violates this right in a manner that is incompatible with the limitations clause, and it must therefore be set aside.

Parallel to this, the petitioners argue against the validity of the rule on the administrative level, and focus on it being – according to them –unreasonable and discriminatory. The two parallel lines of argument drawn by the petitioners give material expression to the borderline between the constitutional and the administrative examination of the act of secondary legislation of the competent authority, as well as their interface.

Let us begin with the constitutional examination.

The constitutional examination – is the right to adopt a constitutional right?

16.    On the level of the constitutional argument, the questions to be considered are these: Does a legal right to adopt a child exist? Does this right enjoy the status of a constitutional right, as a derivative of the right to a family and to parenthood anchored in Basic Right: Human Dignity and Liberty? If the answer is positive – does the maximum age difference rule comply with the criteria of the limitations clause in the Basic Law? These are the questions that we will endeavor to answer.

The right to family and parenthood

17.    Basic Law: Human Dignity and Liberty entrenches a person’s right to dignity and liberty, thus embracing the values of the State of Israel as a Jewish and democratic state (s. 1A of the Basic Law). It states that there shall be no violation of the life, body or dignity of any person as such, and that all persons are entitled to protection of their dignity (ss. 2, 4). Within the parameters of the right to human dignity is the right of a person to a family (HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior [2]). From the right of a person to dignity stems his right to a family, and it therefore constitutes a constitutional right protected by the Basic Law (CA 2266/93 Anon. v. Anon [3], at p. 235; CA 3009/02 Anon. v. Anon. [4], at p. 894). The right to a family is one of the central foundations of human existence. “It reflects the existential essence of a person, and the manifestation of his realization of self” (Adalah v. Minister of the Interior [2], at para. 6 of my judgment). From the right to a family is derived the right to parenthood on the one hand, and the right of the child to grow up in the bosom of his natural parents on the other. Within the framework of the right to family, the natural right of parents to raise their children and the right of the child to grow up in the bosom of his family are recognized. The right to parenthood and the right of a child to grow up with his natural parents are interwoven rights, and together they establish the right of the family to autonomy:

‘The depth and intensity of the parental bond, which incorporates the natural right of a parent and child to a living bond between themselves, made of familial autonomy a value enjoying a legal status of the highest degree, violation of which is tolerated only in the most extraordinary situations’ (Anon. v. Anon.[4], at p. 894).

18.    The right to a family is derived from the right to privacy and from the realization of the principle of the autonomy of individual will, located at the very kernel of the concept of human dignity. “The family and parenthood are the realization of the natural inclination to propogation of the generations and realization of the individual in society” (HCJ 2245/06 MK Neta Dobrin v. Prisons Service [5]; LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents [6]; CFH 2401/95 Nahmani v Nahmani [7], at p. 719; HCJ 2458/01 New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 447). Amongst the constitutional human rights, the right to parenthood and family ranks highly, following protection of the right to privacy and physical integrity: “The right to physical integrity is designed to protect life; the right to a family is what imbues life with significance and purpose” (MK Neta Dobrin v. Prisons Service [5], para. 12). “These rights are fundamental to human existence, and it is difficult to imagine human rights which equal them in their importance and their impact” (Anon. & Anon. v. Biological Parents [6], at para. 6 of my opinion).

19.    The right to establish a family is also recognized under international law. Article 16 of the Declaration of Human Rights establishes the right of a person to marry and raise a family, as does art. 23 of the Covenant on Civil and Political Rights. Article 12 of the Declaration of Human Rights and art. 17(1) of the Covenant on Civil and Political Rights establish the right to privacy and to protection from arbitrary interference in family life. The European Convention on Human Rights establishes, in art. 8, a person’s right to respect for his private and family life, and in art. 12, the right to marry and to found a family.

20.    The right to family and parenthood is related to the concept of a person’s personal autonomy, and to his right to privacy. It is understood as a freedom that may not be violated by interference on the part of the government or other factors. This is a right which does not have a correlative duty of the government to take positive action in order to effect its realization. And indeed, “a free society imposes minimal limitations on the voluntary choices of the individual” (HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [9], at p. 481; CA 7155/96 Anon. v. Attorney General [10], at p. 175). This is particularly true with respect to the aspirations of a person to realize his personality and personal experience by means of establishing a family and bringing children into the world.

In Nahmani v Nahmani [7], Justice Dorner discussed the negative character of the right to a family as a right that restricts state interference in a person’s freedom of choice to a minimum:

‘Freedom in the full sense is not only freedom from outside interference of the state or of others. It also includes a person’s ability to control his way of life, to fulfil his basic aspirations and to choose between a range of possibilities through the exercise of discretion. In human society, one of the forceful expressions of the aspiration which if not satisfied will cause many people not to regard themselves as free in the full sense of the word is the aspiration to parenthood. This is not a purely natural-biological need. We are dealing with a freedom which in human society symbolizes the particularity of a person. “Any person who does not have children is considered as dead” said R Joshua b. Levi (Nedarim 49b). Indeed, most people – men and women alike – see propagation as an existential need that gives meaning to their lives’ (at p. 719).

In the words of Justice Strasberg-Cohen (ibid., at p. 682):

‘The right to be a parent is, by its nature, its essence and its characteristics, a natural, inherent right, embedded in the person. This is a right which has no correlative legal obligation, neither in the relations between the state and its citizens nor in the relations between the spouses themselves’ [emphasis added].

(See also the first proceedings in the Nahmani case: CA 5587/93 Nahmani v. Nahmani [11], at p. 499; P. Shifman, Family Law in Israel (5749-1989, vol. 2), at p. 139.)

The conception of the right to parenthood in the international conventions, too,  is that of a negative right, the principal thrust of which is protection from arbitrary interference of the state in the private lives of a person, his family and his house (on this point, cf: D. Barak-Erez, “Symmetry and Neutrality: Reflections on the Nahmani Case”, (1996) 20 Iyyunei Mishpat 197, 199-200 [Heb.]).

21.    The right to a family and to parenthood as a constitutional right does not achieve full expression in all circumstances. Like other constitutional rights, the right to a family as a freedom that is protected from interference is not absolute. In exceptional circumstances, the law and the authorities are likely to intervene in this right, and to restrict the extent of constitutional protection afforded it, when it is confronted by another important, conflicting value. The legitimacy of violating the right to a family and to parenthood is conditional upon compliance with the criteria of the limitations clause. These criteria reflect the required balance between the import of the basic rights and that of conflicting rights, needs and values, whether of the individual or of society. If a violation of a human right is to meet the constitutional test, its place must be in an appropriate arena of balances, in which the weight of the right is balanced against that of the conflicting right (CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [12]; MK Neta Dobrin v. Prisons Service [5], at para. 12).

Thus, for example, in certain circumstances, when realization of family life causes serious harm to the child, the state intervenes in order to protect his wellbeing, and exceptional situations may arise in which natural parenthood will be temporarily or permanently negated by virtue of the Youth (Care and Supervision) Law, 5720-1960 (hereinafter: “Youth (Care and Supervision) Law”) (Anon. v. Anon. [4]), or by virtue of the Adoption Law. Conditions may arise which will require the state to exercise its authority to remove a child from his parents in order to protect his safety and wellbeing, and also to hand him over to another family for adoption, thus separating him temporarily or permanently from his natural family. Regulation of these powers and their practical application are subject to the conditions of the limitations clause, since what is involved is a violation of a human right to realization of the family bond and parenthood. Other situations of intervention in the right to family may arise where the realization of this right of a resident of Israel who wishes to unite with a spouse from the Area of Judaea and Samaria clashes with considerations of state security (Adalah v. Minister of the Interior [2]).

The right to adopt

22.  Alongside the right to a family as a “passive” right, the essence of which is protection of a person’s personal autonomy from unconstitutional violation, stands the question of the status of the right to parenthood, which the individual seeks to realize by way of adoption of a child born to different biological parents, whether because he is not able to bring a child into the world, or whether because he wishes to forge a parental bond with an adopted child for some other reason. Does the constitutional right to a family extend to the right to adopt a child, where limitation of this right is possible only in accordance with the principles of the limitations clause, or shall we say that the constitutional right to parenthood does not embrace a right to sue the state to intervene in order to make possible its realization by one means or another, including by way of adoption. The question from another angle is whether the constitutional right to a family and to parenthood, which is granted to every person per se, engenders a right to obligate the state to act in order to make family or parenthood possible in the event that a person is not able, or does not want, to realize them in a natural way, e.g., by way of adoption, or through surrogacy, or by IVF. Does a lack of action on the part of the state amount to a “violation”, the constitutionality of which is subject to the limitations clause? These questions are complex and multi-faceted. They touch on the connection between a constitutional right and the means available to a person for realizing the right. They involve issues with extensive normative, moral, social and other ramifications. The approaches to their solution are subject to the influences of time, place and circumstance.

23.    At the same time, for our purposes, it may be said that according to the constitutional conception prevailing in our system, recognition of a constitutional right to parenthood and to family rests on the assumption that the right is protective in nature, and it does not give rise to a correlative obligation of the government to act. It is concerned primarily with protection from government interference, as opposed to fulfilment by the government of a duty to take positive action to provide various means aimed at enabling realization of the right. The right to parenthood extends over the autonomy of the individual will. It does not spill over into an area in which intervention of the state is required for its realization. Intervention of the state in areas such as adoption, surrogacy and artificial reproduction, which constitute different means of realizing parenthood, occurs in the framework of its governmental activity, and it is subject to administrative judicial review; but it is not the expression of a duty that exists as a response to a person’s constitutional right to realization of parenthood by alternative means to natural birth. It is not out of the range of possibility that changing times, social dynamics and human needs will bring with them, over time, changes in the constitutional conception regarding the role of the state in providing the means for realization of a person’s right to family and parenthood. On this matter, the considerations pertinent to the different means are not necessarily identical, and the adoption of a child, who is an independent entity and the subject of rights, is unlike means that are designed to enable childbirth, such as surrogacy and IVF. The question of the extent to which the state must help the individual by making available the means for assisted reproduction through artificial reproductive techniques is difficult and complex. The greater the intervention required from factors external to the reproductive processes, the further removed we become from the inner core of the right to parenthood, which is based on the autonomy of the individual and his independent right to make decisions that determine his fate without external interference. The extent of the state’s obligation to take positive action to help the individual to realize his natural parenthood by artificial means is a difficult and multi-faceted issue. In this context, various questions arise concerning the obligation to establish a system for the purpose of IVF and surrogacy (see National Health Insurance Law, 5754-1994 (Second appendix); National Health (IVF) Regulations, 5747-1987; and Surrogacy Agreement Law). The relationship between the conception of the right to a family and parenthood as a right of a protective nature, and between the extent of the legitimate expectation of the individual that the state will help him, actively, in realizing his right to parenthood by different means, raises complicated and difficult questions (M. Corinaldi, “The Question of Surrogacy in Israel – Comments on the Embryo Carrying Agreement Law, 5756-1996; Aloni Committee Report”, Hamishpat 3 (5756), 63, 67, 69).

Professor Shifman relates to the issue as follows:

‘From the point of view of possible intervention of society, the characteristic components of the substance of the right to be a parent, which are not hewn from the one block, should be noted. The primary component is the right to biological parenthood . . . . Particular attention should be paid to the distinction between the negative and the positive aspects, i.e. between restriction of the freedom of a person to take action to realize his right to parenthood in a way that he considers appropriate, and between negation of the assistance of society. The parameters of the positive assistance of the state are determined, inter alia, by means of the changes in the definition of legal parenthood that society is prepared to make in order to fulfil and confirm the desires of the individual (Shifman, ibid., at p. 169-170).

These questions greatly exceed the bounds of the discussion in this case insofar as they concern the various means of realizing parenthood other than by way of adoption. This is because the predominant conception in the area of adoption is built on the assumption that the adoption arrangement is designed first and foremost to provide a suitable response to the needs of needy children in cases in which the natural environment into which they were born and in which they were  being raised was not capable of providing their basic needs. Handing a child over for adoption, and realization of the parenthood of the adoptive parents are an important by-product to which great moral value is attributed by society, but realization of parenthood by way of adoption is not the major purpose of the institution of adoption.

25.    Adoption provides a response to the yearning of people to realize parenthood of children. Its importance from this aspect is obvious. At the same time, the state adoption arrangements are not part of a prospective adopter’s constitutional right to a family and to parenthood, and it does not establish a derivative constitutional right of that person to demand that the state enable realization of parenthood by means of adoption. As a citizen, he has a right to expect that the adoption arrangements will be applied by the state in a proper manner that comports with the criteria of public law, but this does not give rise to rights on the constitutional plane.

The focus of the child adoption arrangements under the Adoption Law is the best interests of the child whose natural environment and biological family cannot supply his basic physical and psychological needs. They confer on the state the power and authority to intervene in the natural family unit in order to safeguard the welfare of the minor child where the essential conditions for his growth are unavailable to him. The crux of the institution of adoption in the modern era is the wellbeing of the child, whose physical and psychological needs require attention (H.E. Still-Caris, “Legislative Reform: Redefining the Parent-Child Relationship in Cases of Adoption”, 71 Iowa L. Rev. (1985-6), 265).

The Adoption Law, in its basic conception, is directed at the wellbeing of the child. Section 1(b) of the Law, which constitutes the basis and corner-stone for an adoption order, states:

“An adoption order and every other decision by virtue of this Law will be issued if the Court deems them to be in the best interests of the adoptee.”

The arrangement in the Adoption Law is built on the basis of concern for the welfare of the child, recognition being accorded to the status and the constitutional rights of the biological parents to a family relationship and to realization of their parenthood, and subject to the provisions of the Law. The Adoption Law does not presume the existence of a right to adopt; it presumes the possibility of the existence of the ability to adopt when certain conditions of eligibility are fulfilled (sec. 3 of the Law): age and religion (secs. 4 and 5), and a successful trial period (sec. 6).

Indeed, a person’s decision to realize his parenthood by way of adoption belongs in the area of personal autonomy, which is protected from external state intervention. However, actualization of this decision goes beyond the bounds of personal autonomy, and it is subject to the adoption arrangements determined by the state, the main purpose of which is to promote the interests of the child, with those seeking to adopt fitting into the process of adoption in furtherance of the purpose of the welfare of the child, which will always be the central interest and concern of the institution of adoption (CFH 7015/94 Attorney General v. Anon. [13]).

26.    The centrality of the principle of the best interests of the child in adoption proceedings is also a leading theme in the Convention on the Rights of the Child (which Israel signed and ratified) which states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration . . .’ (art. 21).

The child enjoys an independent legal status, he is the subject of rights and obligations, and the accepted law is that in every decision that is taken in his regard, consideration must be given, first and foremost, to his best interests:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ (art. 3(1)).

The Committee for Examining Basic Principles in the Area of the Child and the Law and their Application in Legislation, chaired by Judge Saviona Rotlevy (December 2003), related to this matter in the following terms:

‘The Convention creates a broad duty on the part of states in all concerning the application of the principle of the best interests of the child. First, in determining that in relation to every action or decision undertaken in relation to children by the various state authorities, the best interests of the child will be the paramount consideration. In this way the Convention introduces the criterion of the best interests of the child into every public enterprise concerning the child, and into each action undertaken by private entities in the area of welfare. The significance of this determination . . . is that the whole body of rights, needs and interests of children enjoys a certain substantive priority over other considerations when a decision involving them is being made. This priority stems from the fact that the decision or action under discussion involves the child himself, and it is therefore natural that the determination in the framework of such decision or action will concentrate on the child himself’ (General Part of the Report of the Committee, at pp. 128-129).

(On the implementation in Israel of the Convention on the Rights of the Child see also: Israel Report of the Implementation of the Convention on the Rights of the Child, Ministry of Justice and the Ministry of Foreign Affairs, submitted to the United Nations Committee for the Rights of the Child in February, 2001, esp. pp. 154-160, which discuss adoption. On the historical development of the concept of “the best interests of the child” see: J. Ben-Or, “On the Meaning of the Concept ‘Best Interests of the Child’”, 29 (5734) Hapraklit, 608. On the transition from the “best interests of the child” to the theory of “the rights of the child” see: Y.S. Kaplan, “Children’s Rights in Israel Case Law – First Stage of Transition from Paternalism to Autonomy”, Hamishpat 7 (2002), 303; and Anon. v. Anon [3]).

27.  The best interests of the child in terms of the Adoption Law are incompatible with the existence of a recognized legal right of a person seeking to adopt. The assumption regarding such a right distances the best interests of the child from the focus of interest of the institution of adoption, and it cannot be reconciled with the idea that the state has a humanitarian duty to care for needy children as an absolute aim which is not subject to the rights of others. Consideration of the aspirations of those seeking to adopt at the level of realization of this right would combine external considerations with those of the interests of the child, and detract from the realization of this central principle. This approach finds expression in the case law and the legal literature: they contain no legal recognition of the right of a person to demand that the state hands him a child for adoption, the child being an independent entity, with rights and existence of its own, unless this is essential for the purpose of protecting his welfare and best interests, and for that purpose alone. The duty of the state to safeguard the welfare of children in the hands of adoptive parents who are fit for that rule, in a situation in which the biological nuclear unit to which the child belongs cannot provide an appropriate response (cf. HCJ 415/89 Alon v. Child Services [14], at p. 791). The focus of the duty is on the best interests of the child. It does not encompass the aspirations of the prospective adopter to the extent of conferring upon him a legal right.

‘No person has the right to adopt a child. The argument that every citizen has the right to adopt rests upon a conception that has long disappeared from the enlightened world’ (per Vice-President Mazza in CA 10280/01 Yarus-Hakkak v. Attorney General [15], at p. 93).

This was discussed by C. Goldschmidt in his article “Adoption, Common Law Marriage and Homosexuality” (Hamishpat 7 (2002), 217), who said, inter alia (at p. 238):

‘It is not my intention to argue that a person has a “right” to adopt a child: there is no “right” here opposite which stands a duty of the state. The argument concerning the “right to adopt” of every citizen is an argument that rests on the proprietary conception of children, an argument which has long disappeared from the enlightened world . . . . Moreover, the right is that of the child, the right to grow up in a regular family unit, which will provide him with all that he needs for his development and growth until he is an adult who can take care of himself. The state bears a duty to provide the basic conditions so that the right of the child is not violated, particularly in situations in which the family unit itself does not succeed in providing these . . .’

28.    Under comparative law, systems that are similar in their approach to the Israeli legal system, have not recognized a basic constitutional right to adopt a child in the broad sense.

In the United States, the existence of a right to adopt as a constitutional right has not been recognized:

‘It is manifestly clear that not every prospective adoptive parent has an expectation or entitlement sufficient for the recognition of a constitutional liberty interest in the right to adopt a child’ (2 AM. Hur. 2d Adoption §14 (1994)).

In the American case law presented to us by counsel for the state in the supplementary summation, a series of judicial rulings were cited to the effect adoption is not to be regarded as a constitutional right, and that such recognition would be liable to upset the correct balance between the various considerations and interests involved in the process of adoption.

Owing to their importance, we will quote at length from these cases (all emphases added). In Griffith v. Johnston 899 F. 2d 1427 (1990), the Court said as follows:

‘Although the Supreme Court has rendered decisions defining various elements of family relationships as “fundamental interests” none of those cases announced a “fundamental interest” in adopting children. What consequences would flow from the recognition of such an interest are unclear. The adoption process is now heavily regulated by states for the protection of all parties involved . . . . If the right to adopt is “fundamental”, must the courts review whether states may require that adoptive parents be sane, honest, financially capable or otherwise qualified to be good parents? When does the “fundamental right” to adopt overcome the right of privacy of the birth parents? May the state decide that certain kinds of children, contrary to the wishes of particular prospective parents, may not be adopted? To assert that such an individualized “fundamental right” exists is sloganistic and oxymoronic, since society must balance the interests of at least three parties – birth parents, child, adoptive parents – when legitimating adoptions.’

See also the judgment in Lofton v. Secretary of the Department of Children and Family Services, 356 F. 3d 804 (2004), as follows:

‘Neither party disputes that there is no fundamental right to adopt, nor any fundamental right to be adopted . . . see also Mullins v. Oregon, 57 F. 3d 789 (9th Cir. 1995) (“Whatever claim a prospective adoptive parent may have to a child, we are certain that it does not rise to the level of a fundamental liberty interest.”), Lindley 889 F. 2d at 131 (We are constrained to conclude that there is no fundamental right to adopt"). Both parties likewise agree that adoption is a privilege created by statue and not by common law . . . Because there is no right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption.’

In addition, see the decision in Behrens v. Regier, Secretary of the Florida Department of Children and Families, 422 F. 3d 1255 (2005): here too, the ruling was that there is no recognized right of adoption, and that at the center of the process of adoption is the rights of the child, as opposed to those of the prospective adopter:

‘Beherns has failed to point to any provisions of Florida law that grants prospective parents, like him and his wife, the right to adopt an unrelated child. In fact, Florida courts have held that no such right exists. . . . .

Additionally, Behrens cannot establish that, under Florida law, he has any legal claim of entitlement to have his adoption application approved. . . . Florida adoption laws – like the adoption laws of most states – provide that the decision to place a child in a prospective home is a discretionary one, where “the best interests of the child” always govern. . . . Hence, adoption is not viewed from the perspective of what rights prospective parents may possess; rather the “intended beneficiary of [an adoption] proceeding is the child to be adopted.”’

The State also referred to the analysis of the American case law on this matter in L.D. Wardle, “Preference for Marital Couple Adoption – Constitutional and Policy Reflections”, 5 Journal of Law and Family Studies (2003) 345.

In explicit provisions in the Adoption Law of the State of New South Wales, 2000, Australian law clearly states that a person does not have a right to adopt a child. Section 8 of the NSW Law prescribes:

‘8(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as practicable or appropriate) to the following principles:

(a) the best interests of the child, both in childhood and later life, must be the paramount consideration.

(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child.

(c) no adult has a right to adopt the child. . . .’

The Adoption Law, 1994 of the State of Western Australia states, in the Second Appendix to the Law, that there is no right to adopt:

‘1(3) There is no right to adopt a child. The adoptive or prospective adoptive parent with whom the child is placed with a view to the child’s adoption has the right to bond to the child.’

The State in our case also cited case law of the European Court of Human Rights. The European Council for Human Rights determined, on a number of occasions, that no right to adopt arises by virtue of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On this subject, the court in the case of X and Y v. United Kingdom, (977) 12 DR 32 said as follows:

‘Whilst it is implicit in Article 12 that it guarantees a right to procreate children, it does not as such guarantee a right to adopt or otherwise integrate into a family a child which is not the natural child of the couple concerned".

See on this matter also the ruling in Dallilla Di Lazzaro v. Italy Eur. Commn. HR, App. No. 31924/96, admissibility decision of 10 July 1997, 90 DR. 13:

‘The right to adopt is not, as such, included among the rights guaranteed by the convention and . . . Article 8 does not oblige States to grant to a person the status of adoptive parent or adopted child.’  

See also X. v. Belgium and the Netherlands, (1975) 7 DR 75; X v. Netherlands, (1981) 24 DR 176.

In Frette v. France, 36515/97 [2002] ECHR 156, the European Court for Human Rights ruled that the decision of the French authorities to reject the application of an unmarried man with homosexual tendencies to adopt a child does not in contradict art. 8 of the European Convention on Human Rights. The court said as follows:

‘The court notes that the Convention does not guarantee the right to adopt as such. Moreover, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family. . . .’

And further on it stated:

‘Adoption means “providing a child with a family, not a family with a child” and that the state must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The court points out in that connection that is has already been found that where a family tie is established between a parent and a child, “Particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. . .”.’ 

See also the ruling of the European Court in Pini v. Romania [2004] ECHR 780/01.

Similar rulings were handed down in England, where it was held that a person does not have a right to adopt a child, and that in circumstances in which the adoption had not been completed or where there were no de facto family ties, there is no protected meta-right: Thomson & Ors, R o the application of) v. The Minister of State for Children [2005] EWHC 1378 (Admin) (04 July 2005).

It is important to note –  and the State addressed this in its pleadings –   that regarding the existence of a right to adopt, there may well be a distinction between a normal situation in which the adoption of a child is sought in a regular adoption process in which the prospective adopter has no prior connection with a particular child, and a situation in which adoption is sought when in reality a de facto family exists for all intents and purposes, i.e., when full and complete family ties have already been established in practice between the prospective parents and a particular child. Foreign case law has considered such a possible distinction, negating the existence of such a right in the first case and tending to recognize the right in the second (see the decision of the constitutional court in South Africa in Du Toit and Another v. Minister for Welfare and Population Development and Others, (2002) 13 BHRC 187.

It should be emphasized that we are not dealing here with the special situation of an application for adoption aimed at conferring recognized legal status upon an actual familial parent-child relationship that hs developed: such a situation which may well support a claim to an existing constitutional right to formalize the existing family relationship in the framework of adoption, within the parameters of the wider constitutional right to a family. Rather, our concern is with the question of the existence of a constitutional right to adopt a child in general, in the absence of any prior connection between the person seeking to adopt and a particular child.

29.    Even though a right of prospective adopters is not recognized, they may have a legal interest that must be considered before the adoption order is issued. This is not a legal right, but a legitimate expectation that must be taken into acount when exercising administrative and judicial discretion. In the course of the adoption process, and prior to issuing an adoption order, the dominant consideration is the best interests of the adoptee. Alongside this consideration, the court considers the rights of the natural parents. It also considers the interests of the prospective adoptive parents, when they are raising the child in their home:

‘. . . It is also appropriate to consider the interests of those seeking to adopt the minor child. They do not have a right to custody of the child, but they do have an interest that must be considered. Even though this interest does not have the weight of the right of the natural parents, it too is a factor that must be taken into account’ (per President A. Barak in CA 577/83 Attorney General v. Anon. [16] at p. 471).

Neither do those to seek to adopt have direct standing in the preliminary stages of adoption proceedings. This standing is accorded to the biological parents and the Attorney General as representing the public interest. The prospective adopters do not stand in the forefront of the proceedings, but only behind the scenes (LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [17]; and see Maimon, supra, at pp. 30-34.)

30.  In its basic concepts, the institution of adoption rests on the humanitarian duty of the state to pursue the best interests of children whose biological families cannot respond to the basic requirements of raising them, and to integrate these children into life in adoptive families in which they will be able to grow and develop in conditions of physical and psychological wellbeing. This primary aim of the adoption arrangements also provides a response, as a by-product, to the desparation of childless couples to adopt a child, or to the desire of parents of biological children who wish to adopt another child. These prospective parents have a legitimate expectation that a suitable arrangement will exist, the criteria and means of implementation of which are conducted in a proper manner. They do have the right that their application for adoption be treated fairly, in good faith, out of relevant considerations and without discrimination. This right does not amount to a right to adopt; a fortiori it does not amount to a constitutional right to adopt, derived from the right to a family and to parenthood. Prof Shifman explained this in his abovementioned work, at pp. 145-150:

‘This institution [of adoption – A.P.] is clearly almost the absolute opposite of the previous model, which was characterized by the autonomy of the individual in natural reproduction. In the adoption of children, we have a selective distribution, controlled totally by the state, that operates through the welfare authorities . . . what is the justification for the selective distribution of children for adoption, which is controlled totally by the welfare authorities? . . . A number of answers and explanations can be offered for the phenomenon of intervention in adoption. The preliminary explanation is: the scarcity . . . as a result of a scarcity in supply, and of the constant rise in the number of those applying to adopt, the adoption authorities are forced to tighten the criteria of “entitlement” to receive a child, and the waiting periods until the child is handed over stretch out . . . But we must point out that considerations of scarcity, per se, are not the only consideration supporting the need for state intervention. The other, and possibly determinant consideration, is the welfare of the child. In truth, the preliminary orientation of the institution of adoption is the solution of the problem of homeless children, and only indirectly, and as a secondary goal, is the anguish of childless people who wish to adopt a child likely to be relieved. It must be stressed:  A person does not have the right to adopt a child. His right is not to suffer adverse discrimination relative to other applicants, and that he be treated fairly, and without superfluous bureaucracy; but the point of departure is the best interests of the child. . .

In any case, we may sum up and say that in the adoption at hand, there are several cumulative factors that create the model of intervention: first, the scarcity of children; second, the desire to safeguard the best interests of the child who has already been born; third, the effective ability to intervene in light of the need for the involvement of other people, other than the couple themselves; fourth, the intervention does not affect the intimate decisions of the couple themselves, nor their freedom over their bodies; and finally, in adoption, society is providing positive assistance to the will of the couple to become parents. These factors do not operate in the natural reproduction of a child, at the stage at which his parents decide whether to bring a child into the world’ (and see also at pp 52-53; emphasis added).

31.    Even though prospective adopters have no recognized legal right to adopt, the state must take into consideration and respect their expectation to do so as a natural and legitimate one, and as an important factor in finding a fitting solution to the main purpose of adoption – to promote the best interests of the child in need. And indeed, among the criteria for adoption set by the state institutions (the Child Services in relation to domestic adoption, and the Minister of Labor and Welfare in intercountry adoption) may be found a type of merger between considerations of the “best interests of the child” that are not detached from general social considerations, and the desire to establish a fair administrative arrangement in relation to those who seek to adopt (Shifman, supra, at p. 148). 

32.    In summary, we cannot accept the argument of the petitioners whereby those who seek to adopt have a constitutional right to do so, and that the state must provide a response to this right for otherwise, it would be violating a constitutional right that is subject to the principles of the limitations clause. During the course of the adoption process and prior to the adoption order, those seeking to adopt have a natural expectation and a recognized interest. A legal right, and a fortiori a constitutional right to adopt, are not recognized. This does not detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full duties and rights that characterizes parent-child relationships is created between the adopted and the adoptee, replacing the biological blood ties of the child with his original family, and a new family unit, bearing constitutional rights, is created.     

The argument of the petitioners on the constitutional level must, therefore, be dismissed. Their arguments on the administrative level ought now to be examined, insofar as they relate to the administrative acceptability of the maximum age difference rule according to the criteria of public law.

The administrative level

33.    On the administrative level, it was argued that the maximum age difference rule does not meet the criteria of public law, and that it harms the petitioners in two respects: the first – in the unreasonableness of the age difference that was set in the rules and in the creation of a rigid rule, that fixes an age difference between the adopter and the adoptee in relation to the process of intercountry adoption with no allowance made for special circumstances; the second – in that the petitioners’ group suffers discrimination vis-à-vis groups who seek to adopt in a domestic process, in relation to whom no similar rigid rule exists. In analyzing the administrative arguments, we will concentrate on the area of judicial review of administrative rules that by their nature constitute secondary legislation that was submitted to the Knesset for approval, as is the case with the rules in question (Y. Zamir, Administrative Authority vol. 1 (5756-1996), at pp. 75-85; HCJ 4769/90 Zidan v. Minister of Labor [18], at p. 172).

The background to the formulation of the maximum age difference rule

34.  The Rules and Professional Guidelines for the Activity of a Recognized Non-Profit Organization, 5758-1998, which are the relevant rules here and which include the maximum age difference rule, were issued by the Minister of Labor and Welfare on the basis of the recommendation of the Advisory Committee by virtue of sec 28F of the Adoption Law. The members of the Committee include an expert in the field of social work, the chief welfare officer for the purpose of the Child Adoption Law and the Central Authority for Intercountry Adoption under the Law, the national inspector for intercountry adoption in the Ministry of Labor and Welfare, head of the advisory department in the Ministry of Justice, and a rabbi. This Committee was established for the purpose of advising the Minister “on matters of intercountry adoption, including recognition of an adoption association, withdrawal or suspension of recognition of an adoption association, the establishment of professional guidelines and rules for the mode of operation of a recognized adoption association and its supervision  (sec. 28F(a) of the Law). This is a professional body whose considerations are professional. The said rule concerning the maximum age difference, too, was laid down on the basis of professional considerations relating to the welfare of the child that were weighed by the Advisory Committee and submitted as recommendations to the Minister. Accordingly, the petitioners’ argument whereby the rules were fixed without the requisite factual and professional basis must be dismissed. In the framework of his considerations, the Minister initially decided that the maximum age difference would be 45 years. On 23 December 1997, a proposal was submitted to the Law and Constitution Committee of the Knesset with additional regulations on the matter of intercountry adoption. Following deliberations in the Committee, which related, inter alia, to the question of the age difference, the proposal was amended and the age difference was extended to 48 years. It was also decided that the determining date for calculating the difference would be the date of submission of the request to adopt. After these changes were made, the Committee approved the rules (Protocol no 136, Session of the Law and Constitution Committee of 23 December 1997, R/2 – Response of the respondent to the original petition). The rules, therefore, were approved by the Law and Constitution Committee, as required by s. 36(a) of the Adoption Law.

Reasonableness

35.    An examination of the reasonableness of an administrative act, including secondary legislation, requires a suitable balancing of relevant considerations:

‘The reasonableness of a decision is determined by balancing the values competing for supremacy, according to their weight, and deciding between them at the point of friction. Our concern, therefore, is with the doctrine of balancing in our public law.  This is invoked where there is governmental authority, the exercise of which grants discretion that must take into account conflicting values and interests (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 37; see also HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [20]; HCJ 217/80 Segal v. Minister of the Interior [21]; HCJ 935/89 Ganor v. Attorney General [22], at pp. 513-514).

The balancing is effected by attributing relative weight to the various interests. “The act of ‘weighing’ is a normative act. It is designed to allocate to the various factors their place in the legal system, and their social value within the entirety of social values (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 41).

36.    Unreasonableness of secondary legislation constitutes independent grounds for an administrative challenge (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172). Judicial policy in reviewing the reasonableness of secondary legislation is guided from a point of departure that seeks to protect the statutory norms laid down by an administrative body, as well as the expectation created by that legislation amongst the public. Accordingly, the court, as a rule, will not intervene in the discretion of the administrative body in relation to the secondary legislation that it formulated, unless the unreasonableness of that legislation goes to the heart of the matter “and it is almost certain that, according to the correct degree of reasonableness, the authority would not have been able to reach a decision of that sort” (Justice Elon in HCJ 558/79 Jamal v. Jewish Agency [23], at p. 429).

‘In such a case, the court is bound to act with restraint and forbearance, so that it should not be found to replace the discretion of the administrative authority with its own discretion. It has therefore been held that only unreasonableness of a high degree – “extremely radical” . . . or “exaggerated” . . . is likely to justify judicial intervention in the validity of secondary legislation. Moreover, the court must exercise special caution before intervening in secondary legislation that has obtained the approval of one of the Knesset committees’ (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172; and see CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [24], at p. 26).

The reasonableness of secondary legislation is assessed, inter alia, in light of its general purpose, even if in the specific case it may cause injustice (HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [25], at p. 13; CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [26], at pp. 671-672). The criteria for judicial review of an act of secondary legislation from the aspect of reasonableness focuses on the parameters of reasonableness within which various options are possible, each of which may meet the criteria of proper administration. It is sufficient that the legislative act fall within these parameters in order for it to meet the criteria of administrative reasonableness.

From the general to the specific

37.  The first basic assumption in determining the reasonableness of the maximum age difference rule is that setting specific criteria for the eligibility of prospective adopters is dictated by necessity, in order to establish a system of clear, organized norms in a field that is so sensitive and fateful in a person’s life. The Court related to this when it said:

‘The area of the processes for preparing the lists of adopters or selecting the prospective adoptees, including screening and examining them, ought not to be conducted other than on a clear normative basis; it should be subject to the defined responsibility of a governmental body, whose decisions and modes of operation are subject to review in light of clear criteria. In other words, the authority to deal with these pre-judicial areas should be fixed by law, in order to define, inter alia, who will determine the principles of operation and what are the means for challenging or appealing the various decisions at the said stage, at which there is not yet the possibility of recourse to legal processes according to the above law. It is very possible that it would indeed be reasonable if provisions such as these were to find their place in the Adoption of Children Law, and this may be effected by authorizing the Minister of Justice, in consultation with the Minister of Welfare, to make regulations, inter alia, in all concerning the means for determining prospective adoptees, the means for determining eligibility, appeals and objections and other such provisions. At present the matter is not regulated by law, and this must be corrected’ (HCJ 415/89 Alon v. Child Services [14], at pp. 790-791).

38.    A second basic assumption is that criteria are set solely in pursuit of the child’s best interests. In the framework of this principle, it is only natural to regulate, as well, the suitable and reasonable age difference between the adopters and the adoptee. Such determinations are accepted in many states world-wide. Already at the time of the debate on the Adoption Bill in 1959, it was proposed to set a maximum age for adoptive parents, since “the child’s best interests require not a grandfather’s house, but father’s house” (Knesset Proceedings 25, at pp. 934-935). This proposal was not adopted in the Law, but the maximum age limit was set by the Child Services, which is the organ responsible for determining eligibility of prospective adopters (Maimon, supra, at pp. 111-112). As opposed to this, the Law prescribed a minimum age difference between adopter and adoptee, which stands at 18 years. There is an exception: the court has the authority to deviate from this rule where it is in the best interests of the adoptee to do so (ss. 4, 25 of the Adoption Law).

39.  The third basic assumption is that the factor of the suitable age difference, including the maximum age difference between the adoptive parent and the adoptee, is a matter for professionals, and belongs in the fields of social, psychological and educational science. The purpose of setting an age difference is focused entirely on the best interests of the adoptee: this is the guiding principle underlying adoption, and the entire system of adoption is built upon it. The question of whether the best interests of the child are indeed affected, inter alia, by the difference in age between himself and his adoptive parents, and what ought to be the maximum and minimum age differences for this purpose, is a professional question, and as such it is clearly a matter for the discretion of the authorized body, which for this purpose has recourse to the opinions of professional bodies from the various relevant fields.

40.    As transpires from the response of the respondent, and from the deliberations in the Knesset Constitution Committee, the Advisory Committee held many discussions on the subject of the appropriate age difference for the purpose of intercountry adoption, and the rule that was formulated relies on a professional conception, as evident from the “Summary of the Position on the Matter of Deviation from the Maximum Age Difference” of 20 August 2002, which was drawn up by the Chairman of the Advisory Committee, Prof. Joseph Tamir, and submitted to the Court (hereinafter: “Advisory Committee Position Summary”). In this document, inter alia the rationale behind determination of the maximum age difference rule was explained:

‘The Committee commenced with a discussion of the subject of parenthood and the skills it required. It noted that parenthood is not a one-off event, but a process that requires changing skills according to the age and development of the child . . . . The parent of an adolescent must have the capacity for flexibility, concession, responsiveness to the emotional needs – which are sometimes confusing – of the youth . . . . Such (adoptive) parenthood must incorporate the skills required from biological parenthood, and in addition, special awareness of the complexity of the subject of adoption. Adoptive parenthood is, therefore, a more challenging parenthood, requiring a wider range of skills and greater parental capacity to deal with complex situations,  and constant learning of the subject of adoption. Therefore, the Advisory Committee gave its support to the existing age constraint, since the professional knowledge indicates that the capacity for flexibility and learning declines with an increase in age. The Committee envisaged an adolescent of 15 with one parent aged almost 65 and the second parent much older than that. Thus the generation gap between the adopter and the youth is not a gap of one generation but of at least two generations, with all the implications thereof. Experience in the Child Services teaches that the generation gap increases the sense of otherness of the adopted child, who feels that he is not growing up in a normative family, and that his parents are different from other parents.’

Similar thinking emerged during the discussions in the Constitution Committee, in the words of Nechama Tal, the social worker in the Ministry of Welfare:

‘To be a parent is a difficult job. To be an adoptive parent, is ten times more difficult. Today we are in the situation in which people who were adopted both as babies and as children come back . . . First of all, the age of the parents is extremely significant– most of the children who were given to older couples complain a lot about this. In what sense? In the sense that an adopted child, because he has “built-in” problems of identity from the fact of being adopted, at the age of adolescence has much greater difficulty in undergoing the experience of his adoption, of adolescence and of his identity, than a regular child . . . I am talking about my experience, I have been in the Service for twenty years . . . therefore, for parents to go through such a stormy age of adolescence, when they themselves are 65 years old, is a difficult thing . . .’ (Protocol of the session in the Law and Constitution Committee, 23.12.97, pp. 25-26).

41.    The foundation of the rule, therefore, is the conception that an suitable age gap between the adoptee and the adopter is an important element in achieving a good and proper parental connection in adoption relationships. Too great an age difference between the adopter and adoptee is liable to make it difficult to create a close, understanding and sensitive relationship between parents and child, and to be detrimental to his welfare. The requirement that the age gap not exceed a certain difference is extremely important for the creation of good communications within the family and to the building of a healthy set of relationships within the family unit in order to achieve the aims of the adoption.

It should be added that setting a maximum age different is stems from the outlook that adoption relationships look to the future, and continue over the years, throughout all the stages of the life and development of the adoptee. Attainment of the purpose of the child’s wellbeing does not focus on one point of time close to the time of adoption, but it spreads over a span of many years, beginning with the first years of the child’s life, and extending to the years of his growing up until he is an adult. Too large an age difference is liable to make it difficult for adoptive parents to cope with the special needs of educating an adopted child. They are liable to entail other difficulties when the child is growing up, involving difficulties of communication and in providing a response to the needs of the maturing child. One should also not underrate the importance of ensuring the prospects of a  reasonable lifespan and the good health of the adoptive parent – which decrease with age – in order to ensure, insofar as possible, that the adoptee has a warm family unity and a complete, protected framework for the duration of his childhood and his youth. Primarily, the maximum age difference rule strives to conform to the average accepted age difference in natural parenthood, leaving wider margins in the intercountry adoption process. The approach whereby the model found in nature is the marker that in general reflects the ideal natural situation is a desirable approach, not only from the point of view of physical suitability, but also from the point of view of psychological suitability. Setting the maximum difference at 48 years constitutes a significant extension of the age difference familiar in nature, and it is difficult to say that an additional extension is required in order to meet the criterion of reasonableness.

42.    Regarding the age difference that was set in relation to intercountry adoption, it is important to note that in this area in particular, the secondary legislator acted leniently with respect to adoptive parents, when he set a maximum gap at 48 years. In domestic adoption, the age difference is set at 43 years, pursuant to the amended “Procedure Approving Prospective Parents for Adoption” of the Child Services, which is the body responsible for handing over children for the purpose of adoption. From this aspect, the Committee assigned weight also to the expectations of those seeking to adopt, and permitted a larger age gap in relation to intercountry adoption than in domestic  adoption.

‘It should be noted that the Committee gave serious consideration to the subject of the desire of the prospective adopters, and views its task, inter alia, as helping people to realize this desire, taking into account the quality of family life. The said rule does not negate the right of the candidates to fulfill themselves as parents, but it limits the age difference in such a way that a candidate who is fifty, for example, will be able to adopt a child of two and thus realize his desire for parenthood. The right to parenthood is not only for a baby. Representatives of the Child Services pointed out to the Committee that in their experience, the adoption of a child (not a baby) can be handled well and lead to satisfaction of the yearning for parenthood on the one hand and great benefit for homeless children on the other’ (Advisory Committee Position Summary, ibid.)

43.    Several additional aspects relating to the maximum age difference rule should be mentioned:

(a)   The meaning of the rule is that exceeding the maximum age difference does not totally negate the possibility of adoption. The rule works in such a way as to enable adoption, as long as there is compliance with the maximum age difference. Thus, an adoptive parent who is over the age of 48 can adopt a child whose age comports with the maximum difference or less. In these circumstances, the possibility of adopting is preserved, and the adopter is required to compromise in relation to the factor of the age of the child at the time of adoption. An examination of the existing statistics on adoption that arise from the respondent’s response reveals that the adoption of new-born babies is only a very small part of the total adoptions by Israeli parents. Only 14% of child adoptions relate to babies up to 6 months old; 40% of the adoptions are of babies up to the age of one year, and 25% relate to babies till the age of 18 months.

(b)   Even though the formulation of the rule on this matter is not sufficiently clear, it would appear that the requirement for a maximum age difference of 48 years between the adopter and the adoptee relates to only one of the couple. The requirement does not apply to both partners. One partner may well be older and exceed the maximum age difference, and this will not prevent the adoption by the couple (respondent’s interpretation of the rule in s. 14(b) of the State’s response to the amended petition).

(c)   The maximum age difference relates to the day of submission of the application for adoption, and not to the actual date of adoption. Hence, a prospective adoptee will not suffer, from the aspect of the maximum age difference rule, from the adoption proceedings being drawn out.

(d)   It was argued that the maximum age difference rule is tainted with unreasonableness, since it is presented as an inflexible rule that does not allow the competent authority discretion to depart from it in appropriate circumstances. In the course of the hearings on the petition, the State was asked to consider whether the maximum age difference rule could be relaxed by allowing discretion. After further deliberation, the State announced that the introduction of such flexibility was not warranted. Its reasons were as follows: first, there is a concern that allowing exceptions to the maximum age difference rule would lead to a natural positioning of the focus on those seeking to adopt, in departure from the principal purpose of the norm, which is concerned with the best interests of the child. Secondly, deviation from the maximum age differences places a question mark over the effect of the age gap in the years to come, the impact of which is difficult to foresee at the time of the adoption proceedings. Thirdly, the maximum age difference in intercountry adoption is greater than the norm in domestic adoption, and this already reflects a significant relaxation of the appropriate and reasonable gap. Any further relaxation, by way of creating exceptions, upsets the appropriate balance. And fourthly, the existence of clear rules relating to the eligibility of adopters in the framework of the professional activities of the adoption associations is important. The process of intercountry adoption is executed by private bodies with the oversight of the state. The existence of clear, uniform criteria will facilitate the operation of the adoption associations, and it will ensure equal, non-discriminatory treatment and that the wellbeing of the child is seen as the principal aim.

The cumulative weight of the above reasons leads to the conclusion that the maximum age difference rule falls within the bounds of reasonableness. This rule focuses on the best interests of the child as required, and it is compatible with the purpose of the institution of adoption. The limitation on the age difference between the adopter and the adoptee is directed at the welfare of the adopted child at various points in time along the axis of the years of his life in the course of his childhood, his adolescence and his youth. It is designed to help in creating relationships textured with warmth, sensitivity and understanding within the new family unit that is built around the adoption. At the same time, the rule is more lenient in relation to adopters in intercountry adoptions than domestic adoptions in that it allows for a greater age gap. The limiting rule does not negate adoption by older parents, as long as the age of the adoptee at the time of the adoption is not outside of the maximum permitted gap. This is a commendable, balanced, relevant and professional arrangement that answers the purpose of the institution of adoption. There is no cause to intervene since the arrangement is not defective due to unreasonableness.

The claim of discrimination

44.    The petitioners claim that the maximum age difference rule is tainted by discrimination that distinguishes them vis-à-vis other population groups, as follows: first, in relation to parents who bring children into the world through natural birth, with respect to whom there is no state intervention even when the birth takes place at a late age, and when the age difference between the parents and the new-born is more than 48 years. Secondly, it was argued, that in relation to couples who wish to have a child by way of a surrogate, pursuant to the Embryo Carrying Agreements Law, there is no provision limiting the age difference, and therefore, in this sense too, there is a discriminatory situation in relation to the age provisions in intercountry adoption. This argument extends also to state assistance for those who resort to fertility treatments in order to give birth. Thirdly, it is argued, that there is discrimination between those seeking to adopt by way of intercountry adoption and those who seek to adopt by way of domestic adoption: in relation to the latter, the internal procedural directive grants discretion to deviate from the rule.

45.    One of the main functions of judicial review of the policies of the competent authority is to examine whether that authority acts in an equal manner and without discrimination towards different sectors of the population. The principle of equality is one of the basic principles of the constitutional regime, and it is a foundational value in public law and in judicial review of administrative acts (HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [27], at p. 201; HCJ 98/69 Bergman v. Minister of Finance [28], at p. 698). Unlawful discrimination that is contrary to the value of equality involves different treatment of equals and unequal and unfair treatment of those deserving of equal treatment. Inequality is engendered by creating distinctions between individuals or between matters for irrelevant reasons. At the same time, the existence of a material difference may justify a distinction, provided that the basis for the distinction has a relevant foundation (HCJ 678/88 Kfar Veradim v. Minister of Finance [29], at pp. 507-508; HCJ 6051/95 Recanat v. National Labor Court [30], at p. 312; HCJFH 4191/97 Recanat v. National Labor Court [31]; Y. Zamir and M. Sobel, “Equality Before the Law”, 5 Law and Government (2000), 165; HCJ 59/88 Zaban v. Minister of Finance  [32], at p. 706-707). Sometimes, it is precisely the aspiration to apply the value of material equality that justifies differential, differentiating treatment of different sectors, according preference to the weak and needy and detracting from the strong and able (HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [33], at pp. 365-366; HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [34], at p. 117). Sometimes, affirmative action is required in order to correct deep gaps and unfairness that has increased over the years (see also HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister  [35]; HCJ 20594 Nof v. State of Israel – Ministry of Defense [36]).  Equality does not require identity. It requires equal treatment of people whose basic particulars are similar and are relevant for the same purpose, and as expressed by Justice Agranat:

‘The concept of “equality” in this context means, therefore, relevant equality, and this requires, for the purpose under discussion, “equality of treatment” of those who are characterized by the said situation. As opposed to this, it would be a permissible distinction, if the difference in treatment of different people was the outcome of their being, in consideration of the aim of the treatment, in a situation of relevant inequality, just as it would be discrimination if it was the outcome of their being in a situation of inequality which was not relevant to the aim of the treatment’ (FH 10/69 Boronowsky v. Chief Rabbi of Israel [37], at p. 35).

In our case, a clear relevant difference exists between the group seeking to adopt – to which the petitioners belong – and the other groups to which they referred in their pleadings.

46.    As for the group that includes biological parents who bring children into the world the natural way: as we mentioned at the beginning of our words, the right to a family and to realization of parenthood in a natural manner is a basic constitutional right that derives from human dignity. This right is by its nature a “liberty” that does not involve the correlative obligation of another, and the state is not entitled to intervene in the autonomy of the individual that it represents, other than in unusual and exceptional circumstances. As a result, the state is not entitled to intervene in an act of natural childbirth on the part of parents, even where the age difference between them and the child exceeds the maximum age difference under discussion here. At the same time, situations of such an age gap are rare and very exceptional, and they do not reflect the natural reality in relation to the majority of the population. Things are different in relation to adoption. The state controls the institution of adoption, which is its exclusive responsibility. The focus of the system is on the best interests of the child as a principal aim, and determination of the maximum age is an important element in promoting these interests. Prospective adopters can expect, at most, consideration on the part of the state. Against the background of this structure, the role and the obligation of the competent authority is to set criteria of eligibility for those seeking to adopt, which will provide the greatest possible benefit to the child, whose interests are the focus of the system.

There is, therefore, no equality between that sector of the population that includes the natural parents, whose decision whether and when to have a child is a matter of their personal autonomy and is beyond the sphere of intervention of the state, and between the group of prospective adopters, who require the assistance of the state in order to realize their goals. The state, as the factor responsible for the wellbeing of the child is permitted, and even has a public obligation, to set the conditions of eligibility for adoptive parenthood. The maximum age difference is a required condition. Setting the maximum age difference at 48 years is actually being very kind to those pursuing intercountry adoptions, in that it is based on a difference that substantially exceeds the accepted and common difference in natural parenthood, which normally fluctuates between 20-35 years. It must also be recalled that in domestic adoptions, the accepted age difference according to the rules is also lower than the rule under discussion here. In light of the above, the argument in this context must be dismissed.

47.    As for the group that has recourse to embryo carrying agreements, an amending announcement of the respondent clarified that in the past, the age of the prospective mother for the purpose of a surrogacy agreement was at most 48 years old. On this matter there was a change, and the competent authority decided that for the purpose of approving their candidacy for surrogacy, the Committee for the Approval of Embryo Carrying Agreements would take into account the age of the prospective parents, the starting point being the accepted age of natural parenthood. Age does not constitute a prerequisite, but a consideration when determining suitability, and for this purpose, the natural age of parenthood constitutes a starting point.

On this issue, too, we are not dealing with groups whose particulars are equal, but rather, with groups that are distinguished by substantive differences, which explains the difference in the arrangements concerning the required age differences.

First and foremost, cancellation of the age difference requirement in embryo carrying agreements does not, in these circumstances, make things easier for the applicants; on the contrary, it should be seen as making things more difficult for them vis-à-vis those seeking intercountry adoptions. Whereas beforehand, there was a precondition setting the age difference at 48 years, now it is a matter for the competent committee, and the relevant age is the accepted age of natural parenthood, which is the starting point for the appropriate difference. This condition means that in an embryo carrying agreement, the maximum age is significantly lower than that of intercountry adoption, at least as a starting point. In these circumstances, it could well be argued that there has been an increase in stringency in relation to those wishing to enter an embryo carrying agreement, vis-à-vis prospective intercountry adopters.

Secondly, there is a material difference between the process of surrogacy and that of adoption. Surrogacy is closer to natural parenthood, and its goal is to help couples to bring a child into the world, the child being related genetically to one of them. The closer the process of birth is to natural parenthood, the less justification there is for state intervention in the autonomy of private will, as stated by the Court:

 ‘. . . The process of adoption is similar to the process of surrogacy: both of them were intended to realize and satisfy the need of parenthood, and in both processes, the authorities are involved in one way or another. However, the process of surrogacy – unlike adoption, is very close to natural parenthood, which expresses the autonomy of the individual  . . . the difference between the process of adoption and that of surrogacy negates the analogy from the former to the latter  . . .’ (New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], at p. 448, per Justice Cheshin).

This difference is also evident in relation to the funding of fertility treatments, an area that is even closer to natural childbirth, and therefore, the arguments of the petitioners regarding discrimination vis-à-vis those who are helped by fertility treatments must be dismissed. In this context, the words of Prof. Shifman concerning the difference between the process of adoption and new reproductive techniques are apt:

‘. . . It would appear that most of the considerations for intervention in handing children over for adoption do not apply to the new techniques of reproduction. This is not a matter of a scarcity of children, nor of the desire to ensure the optimal welbeing of the child who has already been born. This is a matter of planning to bring a child into the world, which is close to natural childbirth’ (Shifman, supra, at p.151).

Thirdly, another difference between the process of surrogacy and that of child adoption lies in the authorities who are responsible for approving the sought-after process. Whereas the approval of an embryo carrying agreement is issued by a professional public committee that was established by virtue of the Law, approval of intercountry adoptions was placed in the hands of private adoption associations; public policy in this area aspires to establish norms of eligibility that are as clear and detailed as possible, which will dictate the mode of operation of the adoption associations while creating clarity, certainty and stability.

In light of the above, the argument, insofar as it concerns the relationship between intercountry adoption and embryo carrying agreements and state aid in funding fertility treatments, must be dismissed.

48.  Finally, it was argued that there is discrimination between those applying for intercountry adoption and those seeking domestic adoption. This argument, too, must be dismissed, even if only for the reason that the maximum age difference under the present procedure in domestic adoption is 43 years for the older one of the couple seeking to adopt (Rule 3.7 of the Procedure for Approval of Prospective Adoptive Parents, as amended on 1 June 2000). It was not made clear in the response of the State whether there is discretion to deviate from the rule, but even so, the internal rule is still more stringent, and does not create a basis for a claim of discrimination. In these circumstances, the argument of discrimination raised by the petitioners is unfounded, and must be dismissed.

Comparative law

49.    Both the petitioners and the respondent presented to us numerous examples from states worldwide, and each clung to its examples to strengthen its arguments. One side brought examples of states in which there is no set maximum age difference for the purpose of adoption; the other side brought examples of states which have set a more stringent age difference than that set in Israel.

Indeed, a survey of the situation in various states reveals that there is no universal legal policy on the question of the age difference between adoptive parents and their child. On the one hand, there are those states that set a level for the maximum age difference. In these states, the decision is usually more stringent than that in Israel. Thus, for example, in Denmark, Italy and Ethiopia, the maximum age difference is 40 years. In Germany, the law does not set a maximum age difference, but in the rules set by the administrative authority, a maximum difference of 40 years was prescribed. In Iceland the rule is that the adopter will be between 25-45 years old, and in South Korea, the age of an adopter may not exceed 45 years.  In other states, there is a maximum age for adoption, which is usually below 48 years. Thus, in Hungary, Holland and Hong Kong, the maximum age for adoption is 45. On the other hand, there are states in which there is no set maximum age difference or maximum age for the purpose of adoption. This is the situation in the United States and in England, in which age is indeed a factor that is considered in determining eligibility for adoption, but no defined, compulsory age has been set for this purpose. The petitioners did not provide any information concerning the actual practice in these states, and how the discretion given to the adoption authorities is implemented in practice. Without such information, it is difficult to know whether the absence of a rigid rule regarding the age of adoption or the maximum age difference is to the benefit or the detriment of those seeking to adopt in those states. Thus, for example, in England it was stated:

‘Although there is no prescribed maximum age, it should be appreciated that in practice, adoption agencies are unlikely to consider applicants over 40 (and often over 35) at any rate as potential adopters for healthy babies’ (N. Lowe & G. Douglas Bromley’s Family Law (9^th ed., 1998), p. 628).

Similarly, special arrangements exist in some states, such as Australia, in which the age requirement as a condition of adoption was cancelled, but it was decided that the applicants for adoption must comply with the age requirements of the state that is handing over the child for adoption.  

Looking at the law overseas does not, therefore, strengthen the arguments of the petitioners. Setting an age difference is accepted practice in many states. In some of them, there is a more stringent age difference, and in relation to states in which there is no binding rule, we do not have information on how the discretion of the adopting authorities is exercised in the application of the age requirements in practice.

A final word

50.    The rule regarding the maximum age difference between the adopter and the adoptee in intercountry adoptions does not violate constitutional principles. It complies with the criteria of proper conduct according to public law. It reflects an appropriate criterion, amongst the other conditions of eligibility of people seeking to adopt, which is designed to secure the best interests of the child by ensuring that the age difference between him and his adoptive parents will not exceed the reasonable norm. A balanced age difference between parents and children makes it easier to create harmony in relations between parents and children within the family unit, and it is important for the healthy growth and development of the adopted child. This consideration of the best interests and the wellbeing of the child is the cornerstone on which the institution of both internal and intercountry is built. The maximum age difference rule is fair, reasonable and non-discriminatory, and conforms to the basic purpose of the institution of adoption.

51.    In view of all the above, the petition in all its parts should be dismissed. In the circumstances, I would recommend that no order for costs be issued.

 

President D. Beinisch

Before me is the reasoned opinion of my colleague Justice A. Procaccia. The petition before us centers on rule 4(b)(1) of the Rules and Professional Guidelines for the Activities of a Recognized Non-Profit Organization, enacted by the Minister of Labor and Welfare in 1998. This rule, called the “maximum age difference rule”, states that a person wishing to adopt a child in the framework of intercountry adoption, will not be eligible to adopt if the age difference between himself and the child on the date of submission of the application for adoption exceeds 48 years. As was explained in the opinion of my colleague, the petitioners challenge the said rule on both the constitutional and the administrative levels. On the constitutional level, the petitioners argue that the maximum age difference rule violates realization of the constitutional right to family life and to parenthood, and that the said violation is unlawful in that it does not meet the criteria of the limitations clause. On the administrative level, the petitioners contend that the said rule is unreasonable and discriminatory. The main request of the petitions is that we order that the rule be changed in such a way as to allow departures from it in special cases justifying such departure, even when the age difference between the prospective adopter and the child exceeds 48 years. It will be noted that in the hearing held in this Court on 25 February 2007, the State agreed that the petition be heard as if an order nisi had been issued.

My colleague, Justice Procaccia, discussed the arguments of the petitioners one by one, and dismissed them for the reasons elucidated in her opinion. I agree with many of the normative rulings on which Justice Procaccia’s opinion is based.  Nevertheless, I wish to add my say on a number of aspects in which I differ from the path taken by my colleague. On the constitutional level, Justice Procaccia ruled that people seeking to adopt a child do not have a recognized legal right, and in her view, such a right ought not to be recognized on the meta-legal constitutional plane. As I will explain below, in my view, the matter is sensitive and complex, and I would therefore prefer to refrain from a firm ruling in the matter, for such a ruling is not necessary in the circumstances of the case before us. As for the administrative plane – my colleague’s conclusion was that the maximum age difference rule is fair, reasonable and non-discriminatory. My colleague’s words imply that this conclusion stands even if the existing legislation does not permit discretion to deviate from the said rule in exceptional, justified circumstances. For reasons that I shall discuss below, I am of the opinion that s. 36A of the Adoption of Children Law, 5741-1981 (hereinafter:  “Adoption Law”) must be interpreted in such a way that the statutory appeals committee that it established is authorized to consider applications for a departure from the maximum age difference rule in intercountry adoptions, in special, exceptional circumstances that justify such a departure. Taking this into account, I am of the view that the petition should be granted in part, in the sense that the possibility of considering a deviation from the maximum age difference rule is not a matter for the private adoption associations as requested by the petitioners, but it can be entertained by the statutory appeals committee under the Adoption Law.  I will clarify.

The constitutional plane

1.    As stated, the main argument of the petitioners on the constitutional plane is that the right to become a parent by means of adopting a child enjoys a constitutional, meta-legal status in our legal system, and the maximum age difference rule violates this right, contrary to the conditions of the limitations clause.

In relating to these arguments, Justice Procaccia ruled that that prospective adopters have a natural and legitimate expectation that their said desire be taken into account in the framework of the exercise of administrative and judicial discretion, and even a right to expect that adoption arrangements will be implemented by the state lawfully in accordance with the criteria of public law. At the same time, according to my colleague’s approach, none of these give rise to a recognized legal right (“a right by law”) to adopt a child, and in any case, there is no cause to recognize a constitutional right as aforesaid. Justice Procaccia based her view on two main reasons: first, according to my colleague, recognition of a legal right to adopt children will lead to a conceptual confusion between the best interests of the child and the interests of those seeking to adopt, in a way that is liable to distance the main goal of the institution of adoption, which is the commitment to the meta-principal of the wellbeing of the child, from the center of interest. Secondly, according to my colleague, the constitutional right to family life and to parenthood – which stems from the constitutional right of a person to human dignity and privacy – is a right in the category of a “liberty”, the aim of which is to provide protection from unjustified external intervention of the state in the intimate decisions of the individual. Under this approach, the right to family life and to parenthood is of a negative character, and it cannot impose upon the state a duty to take positive action in order to promote the aspirations of the individual to establish a family and to become a parent. Justice Procaccia’s view is that a person does not have a constitutional right to realize his yearning for a child by alternative means to natural childbirth, and the state is under no active duty to make such alternative means available to him. In this context, my colleague commented that “it is not beyond the realm of possibility that changing times, social dynamics and human needs will bring with them, eventually, changes in the constitutional conception of the place of the state in providing the means for realization of a person’s right to a family and to parenthood. On this matter, the considerations need not be identical in relation to the different means, and adoption of a child, who is an independent entity and the subject of rights, is unlike other means that are designed to make it possible to bring a child into the world, such as surrogacy and IVF” (para. 23 above).

2.    Regarding my colleague’s position, I will comment that in my view, definition of the internal scope of the constitutional right to family life and to parenthood is a sensitive, complex and multi-faceted question. The case law of this Court has recognized, in the past, a right to family life and to parenthood as a constitutional right that derives from human dignity, and also from realization of the right to personal autonomy and self-fulfillment (see Adalah v. Minister of the Interior [2], per President Barak at para. 32 ff., per Vice President Cheshin at paras. 46-47, my opinion at para. 6, per Justice S. Joubran at para. 8 ff, per Justice Procaccia at paras. 1, 6, per Justice Naor at para. 4, and per Justice Rivlin at para. 8; see also Neta Dobrin v. Prisons Service [5], per Justice Procaccia at para. 12).

At the heart of the constitutional right to family life and to parenthood is the natural and preliminary right of every person to bring children into the world, and by so doing to realize his existential instinct to establish the next generation bearing the genes of the parents. The kernel of the right to family life and parenthood also contains the right of the biological parent to custody of his children and to raise them, as well as the right of the child to grow up within the bosom of his biological parents by virtue of the blood ties between them. This is the “hard nut” of the constitutional right to family life and parenthood, about which there would seem to be no argument (see e.g. Nahmani v Nahmani [7], at pp. 680-681, per Justice T. Strasbourg-Cohen; Anon. & Anon. v. Biological Parents [6], at pp. 184-188, per Justice A. Procaccia; and LFA 5082/05 Attorney General v. Anon. [38], at para. 5).

The question that is more difficult to answer concerns the definition of the internal scope of the constitutional right to family life and to parenthood in contexts other than natural childbirth and biological parenthood. This subject has not yet been dealt with in depth in our case law. Thus, for example, in New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], this Court refrained from ruling on the question of whether the internal scope of the constitutional right to family life and parenthood includes the aspiration to bring a child into the world by means of an embryo carrying agreement, which is based on a division between the genetic code (originating in one or both of the parents party to the agreement) and the physiological aspect (which is realized by means of the surrogate mother who undergoes the pregnancy and the birth). As for realization of the yearning for a child by means of the institution of adoption – to date, the case law has tended to recognize the rights of prospective adopters only in circumstances in which actual family ties existed between the prospective adopter and the prospective adoptee, in a way that affected the examination of the best interests of the adoptee (see what I wrote in Anon. v. Attorney General [10], at pp. 175-176, on the matter of the adoption of an adult by a person who married his biological brother and raised him since he was a baby; see and compare: Yarus-Hakkak v. Attorney General [15], per President A. Barak, concerning a female couple who live together, and each applied to adopt the biological children of her partner; see also the recent decision of the House of Lords, which granted the petition of an Irish man who sought to adopt the biological child of his female partner with whom he lived out of wedlock: Re P and others (adoption: unmarried couple) [2008] 4 HRC 650). As opposed to these cases, in the case before us the argument of the petitioners is that constitutional status should be granted to their aspiration to become parents by means of the institution of adoption, at the preliminary stage of the process of adoption, in the absence of any reality of de facto family life with the concrete child.

3.    As stated, Justice Procaccia discussed the reasons against constitutional recognition of the right to become a parent through the institution of adoption. However, as against these weighty considerations discussed by my colleague, one can muster counter-considerations that support according a constitutional status to the said right. Prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means and they wish to realize their yearning for a child by means of the adoption. According to this approach, a relatively broad definition of the internal scope of the constitutional right to family life and to parenthood ought to be recognized, while adapting the scope and intensity of the constitutional protection that will be afforded to the said right in different contexts, where it conflicts with opposing rights and interests. Inter alia, the degree of protection of realization of the right to family life and parenthood will be affected by the positioning of the case in the hub of the constitutional right or at its margins (see and compare: Adalah v. Minister of the Interior [2], per (then) Justice Rivlin, at para. 8).

In accordance with the said approach, the right to become a parent through the institution of adoption is situated on a more exterior circle vis-à-vis natural childbirth (which, as we have said, is included in the “hard kernel” of the right to family life and to parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents (see and compare: New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], per (then) Justice Cheshin, at p. 448). According to the approach of the petitioners, positioning of the right that they claim on a circle further from the core of the constitutional right is liable to affect the intensity of the protection afforded to those who seek to become parents by means of adoption of a born child who does not bear the genetic code of either of them. At the same time, according to the argument, this alone is not enough to negate the actual constitutional recognition of the right to become a parent by means of the institution of adoption, considering that realization of the yearning for a child is a basic and inseparable part of human dignity, of the realization of a person’s self-hood and his internal “I”.

It will be stressed that the petitioners to not presume to argue that the right of those seeking to adopt is an absolute right or that it should be granted maximal constitutional protection. Like all rights, the right claimed by the petitioners, too, is a “relative” right, and at times it must yield to competing rights and interests. In their pleadings, the petitioners did not dispute that the best interests of the child constitutes an overarching principle in our legal system and in international conventions that deal with child adoption, and that it is the principle of the best interests of the child that is the basis of the laws of adoption, as elucidated in the opinion of my colleague. It is clear, therefore, that even according to the petitioners, the constitutional right to become a parent through the institution of adoption cannot be discussed independent of questions of parental capability and the best interests of minors who have already been born. Moreover, there was no disagreement between the parties to this petition on the need to protect the rights of biological parents, and on their preferred status vis-à-vis people seeking to adopt – certainly at the early stages of adoption proceedings. No one disputes, therefore, that in the triangle of interests of the wellbeing of the child – rights of the biological parents – rights of those seeking to adopt, the status of the last group is relatively weak, and the constitutional protection they will be given will be less in scope and intensity, in view of the elevated status that must be assigned to the best interests of the child and to the blood ties between the child and his biological parents. At the same time, so goes the argument, one cannot ignore the fact that the institution of adoption – both domestic and intercountry – also satisfies the needs of childless people, who wish to realize their desire for a child even if the child will not be a biological descendent (see and compare: Shifman, Family Law in Israel, supra, at p. 148). According to that argument, the need to place the best interests of the child at the center of adoption law and the need to protect the rights of the biological parents do not mean that there is no room for recognizing the existence of a constitutional-legal right of those who seek to become parents through the institution of adoption, even though, as stated, this would be a relatively “weak” right from the point of view of the intensity of the protection it receives.

I would point out that an additional possible justification for an approach that supports constitutional recognition of the right to become a parent by way of adoption may be based on the close dependency of those seeking to adopt on state institutions. The state representative confirmed in her response before us that adoption in its very essence is “public”. Intervention and external arrangement on the part of the state are required for the purpose of handing children over for adoption. An individual seeking to adopt is unable to create the legal status of parenthood on his own – certainly when it is not a case of natural birth –and he requires the external validation of the state and its institutions in order to create the status of adoptive parent vis-à-vis the whole world. In view of this, it may be argued that there ought to be constitutional recognition of the right claimed by the petitioners, in order to balance the great power of the state in the said context. According to this approach, the constitutional right to human dignity – from which the right to family life and parenthood is derived – is not based only on negative content, and in suitable (although limited) cases, the said right is liable to impose positive duties on state authorities in order to protect individual rights and to provide a real possibility of realizing them (for a supportive view, see: Sigal Davidow-Motola, “Feminist Decision? Another Aspect of the Nahmani Case”, 20(1) Iyunei Mishpat 221, 227-228 (1996)). In this context, it will be noted that the State referred in its pleadings to statements in Nahmani v Nahmani [7] from which it transpires that the right to parenthood is a negative liberty which is not capable of imposing positive duties on the legal level (see ibid., at p. 682, 780-781, 790). On this matter, it is doubtful whether these statements apply in our case with the same intensity as in the Nahmani case, since that case dealt with the relationship between two individuals (former spouses), and not with the relations between the individual and the state. In the words of Justice E. Goldberg (ibid., at p. 726): “The question of whether the state bears an obligation to assist the individual in realizing his desire to be a parent does not arise in any way in this case.”

4. Thus, the fundamental issue concerning the question of constitutional recognition to become a parent by means of the institution of adoption is complex and sensitive. It is inextricably linked to the definition of the internal scope of the constitutional right to family life and to parenthood. It gives rise to questions concerning the essence of the institution of adoption and the relationship between the best interest of the child, the rights of biological parents and the desires of those seeking to adopt a child. It raises broad questions concerning the extent of active duties that ought to be imposed on the state by virtue of constitutional rights. The said matter is also likely to have ramifications for the legal-constitutional definition of concepts such as “legal parenthood” and “family unit” in the Israeli legal system (see P. Shifman, “On the New Family: Opening Lines for Discussion” 28(3) Iyunei Mishpat 643, 670 (2005)). It should be noted that in view of all the above-mentioned problems,        other states have refrained to date from granting constitutional status to the right to adopt a child. Even the European Court of Human Rights ruled that a right to adoption cannot be derived from the right to privacy and to family life as stated in art. 8 of the European Convention on Human Rights (see Frette v. France (2002) 38 EHRR 438; but see recently the minority opinion of Justice Mukaroni of the European Court of Human Rights, who calls for a change in the interpretation of the said art. 8 of the Convention, such that this article will protect the possibility of submitting an application to adopt a child in the framework of the domestic law of each state: E.B. v. France (Grand Chamber judgment of 22 January 2008, Application no, 43546/02).

5.    As we said, in the circumstances of the case before us, the constitutional issue does not require a decision, as the matter of the petition according to the remedy that is sought can be resolved on the administrative plane. In view of the sensitivity of the constitutional issue and its complexity, and in the absence of a need to decide on this issue in the circumstances of the case before us, I prefer to leave it for future consideration.

In conclusion, I would comment that even if we recognize a constitutional right to realization of the aspiration for parenthood by means of the institution of adoption, as requested by the petitioners, in the circumstances of the said case, the violation of this right does not go to the heart of a clear, recognized constitutional right, and the severity of the violation is not great in view of the fact that the maximum age difference rule does not prevent the petitioners from adopting a child, but only prevents them from adopting a new-born child. (Thus, for example, if a couple who are fifty years old look for succour from the institution of adoption, the maximum age difference rule enables them to adopt a two-year-old child.) In all events, in view of the conclusion that will be elucidated below, whereby the existing legislation contains a mechanism for considering exceptional cases in which it is possible to deviate from the said rule, I am of the opinion that even had a violation of a basic right been proven – and I am not ruling on this – it would conform to the limitations clause, including the requirement of proportionality.

Furthermore – and this is the most important thing in my eyes – the difficult question that arises under the approach of the petitioners concerns the contents of the constitutional right that they claim, and the nature of the corresponding duty. In their pleadings in this Court, the petitioners agreed that no-one has a vested right to adopt a child, and that the state does not bear a duty to “provide” a child for those who wish to have recourse to the institution of adoption; this is in view of the necessity of protecting the best interests of children who are prospective adoptees as well as the rights of the biological parents. It will be noted that in their amended petition, the petitioners stated that they do not insist on voiding the secondary legislation on which this petition turns, and that the remedy they are seeking is the moderation of the maximum age difference rule by recognizing the possibility of deviating from the rule in exceptional cases that justify so doing.

Thus, a careful reading of the arguments of the petitioners and the remedy they seek reveals that their main contention on the constitutional plane is that the state has a duty to create a proper legal mechanism for examining the applications of those interested in realizing their right to parenthood by means of the institution of adoption; this, subject to the overriding principle of the best interests of the child, the rights of the biological parents, examination of the parental capabilities of the prospective adopters, and the other interests that are relevant to the matter. Apparently, the state fulfilled the duty as claimed by the petitioners, in view of the fact that the Adoption Law and the secondary legislation enacted by virtue thereof establish regular mechanisms for examining applications for child adoptions, both in domestic adoption and in intercountry adoptions. At the same time, as we have said, the argument of the petitioners in this context is that the maximum age difference rule unlawfully infringes their rights, in that it does not allow for a mechanism for departing from the rule in exceptional cases, on the basis of a substantive examination of the suitability of the applicants to adopt a new-born baby when the age difference exceeds 48 years. On this matter, I am of the opinion that the existing legislation contains a mechanism for considering exceptional cases as requested by the petitioners, and the question confronting the respondents is whether this mechanism can also be implemented in relation to the matter of the maximum age difference. To clarify my position as stated, I will address the arguments that were raised on the level of administrative law.

The administrative level

6.    On the administrative level, the petitioners raised three main arguments against the maximum age difference rule: first, it was argued that the said rule is not reasonable in that it has not been proved that the wellbeing of the child suffers when the age difference between the prospective adopters and adoptee exceeds 48 years. Secondly, it was argued that the maximum age difference rule creates unlawful discrimination against those who seek to adopt a child in an intercountry adoption vis-à-vis other groups who seek to realize their right to parenthood, and particularly in relation to those applying for a domestic adoption. Thirdly, it was argued that the said rule is neither fair nor proportional in view of its rigid nature that does not allow for an individual examination of the circumstances in exceptional cases which justify so doing.

My colleague Justice Procaccia discussed the reasons for dismissing the arguments of the petitioners relating to the lack of reasonableness of the said rule, and I agree with all she said in this regard. As related in the opinion of my colleague, the Minister initially prescribed a 45 year maximum age difference in intercountry adoption However, after deliberation in the Knesset Law and Constitution Committee, the proposal was changed: the age difference was fixed at 48 years, and the relevant date for determining the maximum age difference would be the date of submission of the application to adopt, and not the actual date of adoption. It was further decided that it will be sufficient if one of the prospective adopting couple fulfils the maximum age difference requirement of 48 years between himself and the adoptee, even if the other partner exceeds the maximum age difference requirement. On this matter, I am of the opinion that the question of the extent to which the best interests of the child are affected by the age difference between himself and his adoptive parents, and what ought to be the maximum age difference between them, is a professional question, clearly subject to the discretion of the competent authority, assisted by the expert opinions of professionals. In the particular circumstances, the decision to set the maximum age difference at 48 years was made in accordance with professional evaluations of what the child’s best interests require, not only when he is a child but also as he grows and matures over the years, and in light of the accepted social conceptions that are influenced, inter alia, by the maximum age difference in natural birth, which is significantly lower than that anchored in the rule. A glance at comparative law reveals also that fixing the maximum age difference at 48 years does not deviate significantly from what is accepted in other states, as discussed by my colleague discussed in para. 48 of her opinion. Taking all the above into account, it cannot be said that the rule is unreasonable to an extent that requires striking down secondary legislation that has been approved by the Constitution Committee of the Knesset.

It will be noted that fixing the maximum age difference at 48 years may well involve a certain degree of arbitrariness which typifies every norm that fixes a set measure, certainly in relation to a limitation based on age. Our case law has already stated that “. . . this is what happens with times, with measurements, with weights, with distances and other such measurable concepts, that they are somewhat arbitrary at their boundaries. This is well known” (per (then) Justice Cheshin in CrA 3439/04 Bazak (Buzaglo) v. Attorney General [39], at p. 307). A certain alleviation of the problem of arbitrariness may be attained by granting discretion to depart from the maximum age difference rule in special circumstances that justify so doing, and I will discuss this below.

As for the argument of unlawful discrimination – on this too I am in agreement with Justice Procaccia that there is a relevant difference between those seeking to adopt a child in an intercountry adoption and the other groups to which the petitioners referred in their pleadings. The reasons for this position were elucidated by my colleague (para. 45 ff.) and I see no reason to repeat what was said there.

7.    From the whole array of arguments raised by the petitioners on the administrative plane, the argument that most disturbed me relates to the question of whether a possibility exists of deviating from the maximum age difference rule in intercountry adoption in special, exceptional circumstances that justify so doing. From the material submitted to us it transpires, apparently, that in domestic adoption, it is possible in exceptional circumstances to deviate from the procedure that requires a maximum age difference of 43 years between prospective adopters and the child to be adopted. In intercountry adoption, however, the position of the State is that there is no justification for allowing a deviation from the maximum age difference rule, which stands at 48 years. It will be mentioned that this alone is not sufficient to create unlawful discrimination between prospective adopters in domestic and in intercountry adoptions. This is because the age difference in the case of domestic adoption is lower than that in intercountry adoptions (43 and not 48 years), and therefore, prima facie, in relation to domestic adoption there is greater justification for allowing discretion to deviate from the rule.

The aspect that disturbed me in the said context does not stem, therefore, from the prohibition on unlawful discrimination, but from the competent authority being bound by fitting administrative norms that are based on fairness, reasonableness and proportionality. As mentioned above, even according to the approach whereby prospective adopters have no legal right recognized by law, there is no dispute that they have a legitimate expectation and interest that consideration will be accorded to their desire to adopt a child, and that limitation of the possibility of realizing this desire will be effected in a fair, reasonable and proportional manner in keeping with the accepted criteria of administrative law. The question that arises is whether the State’s position negating the existence of discretion to deviate from the maximum age difference rule in intercountry adoption fulfills the said criteria. I fear that this question must be answered in the negative.  It has already been ruled in our case law that “policy that has no exceptions is like a ball-bearing machine without lubricant. Just as the machine will not work and will burn out quickly, so too will the policy” (HCJ 3648/97 Stamka v. Minister of the Interior [40], at p. 794, per (then) Justice Cheshin). In another case, the Court said that “. . . it is the obligation of every administrative authority to apply his discretion from case to case, and to recognize exceptions to the rules and the set guidelines when circumstances justify so doing” (Adalah v. Minister of the Interior [2], per President Barak, at para. 72).

The requirement of fairness and proportionality in the actions of the administrative authority – including secondary legislation – supports limiting rigid arrangements to circumstances in which the establishment of an all-encompassing arrangement is unavoidable. As a general rule, the exercise of administrative discretion will permit flexibility in cases in which there is justification for deviating from the rule without thereby harming the principle of equality. In the words of Justice Cheshin: “Law is designed for that which is accepted, middling, average, and the need for flexibility is obvious, even if only so as to avoid trampling on the minority and the exception . . . hence, the flexibility that is required, to adapt the rules – which in their essence were created for the middling and the average – to whosoever is not middling or average” (CA 1165/01 Anon. v Attorney General [41], at p. 79).

In the case at hand, the State presented a number of reasons for its approach whereby no departure from the maximum age difference rule should be allowed in intercountry adoption. I examined these reasons, and I was not convinced that they justify the existence of a rigid rule that allows no deviation, even in cases that are special and exceptional. The argument of the State whereby the existence of such discretion will divert the focus of attention to the prospective adopters instead of the best interests of the child is not convincing in my view, for it is clear that the existence of exceptional circumstances will be examined subject to the overriding principle of the best interests of the children waiting to be adopted. Neither is the argument that it is difficult to anticipate the ramifications of the age difference between the adopter and adoptee convincing, for the process of adoption is constructed entirely on future-directed anticipation, which is naturally characterized by uncertainty. The State further argued that since the process of intercountry adoption is executed by private adoption associations which operate under state supervision, the existence of clear rules of eligibility of adopters is of great importance; this is so in view of the concern for undesirable consequences of competition between the private adoption associations, which harm the interests of the children awaiting adoption, as well s concern for the lack of equal treatment of those who seek to adopt them. Prima facie, this last argument is significant. Nevertheless, it appears that the concern expressed by the State should be answered not by setting a rigid rule regarding the maximum age difference, but rather, by a suitable choice of the entity that will exercise discretion to deviate from the rule. I will discuss this below.

8.    The obvious conclusion from what has been said so far is that the absence of discretion to conduct an individualized examination of exceptional cases in which departure from the maximum age difference rule is justified – even if only in exceptional circumstances of limited scope – would have engendered genuine questions about the reasonableness and proportionality of the rule. In actual practice, I am of the opinion that the said difficulty does not arise, in that the mechanism fixed in s. 36A of the Adoption Law has the capacity to include a process of review which allows for a departure from the maximum age difference rule  in suitable cases. Section 36A of the Adoption Law prescribes as follows:  

Appeals Tribunal

(a)        A person who considers himself harmed by a decision of the Welfare Officer regarding the determination of his eligibility to become an adopter or by a decision of a recognized adoption association concerning his eligibility to adopt a child in an intercountry adoption, may appeal the decision to an Appeals Tribunal comprising five members, who will be appointed by the Minister of Labour and Welfare in consultation with the Minister of Justice [emphasis added – D.B.].

(b)        The members of the appeals tribunal will be a judge of the family court, who will preside, two social workers, a clinical psychologist and an expert psychiatrist, provided that at least two of the members will not be state employees.

(c)        A decision of the appeals tribunal is not subject to further appeal.

Section 36A of the Adoption Law prescribes that the appeals tribunal it establishes will be competent to hear, inter alia, appeals on the decision of a recognized adoption association concerning eligibility to adopt a child in an intercountry adoption. Correct interpretation of s. 36A, in light of the abovementioned principles, leads to the conclusion that a person who seeks to adopt a child in an intercountry adoption and is deemed to be ineligible to do so – possibly, inter alia, because he does not fulfil the maximum age difference requirement – is entitled to appeal this decision to the appeals tribunal in a way that makes it possible to conduct an individualized examination of the circumstances of the case. In this context, I would like to stress two points: first, in the existing legal situation, the authority to depart from the rule is not granted to the private adoption associations, and the reasons for this were articulated by the State in its pleadings. At the same time, in keeping with the said interpretation of s. 36A of the Adoption Law, discretion to deviate from the maximum age difference rule in intercountry adoption will be exercised by the statutory appeals tribunal, which constitutes a public body with mixed administrative and quasi-judicial characteristics. This would seem to provide a response for the main fears raised by the State in its pleadings concerning the exercise of the said discretion by private bodies that compete amongst themselves. Secondly, the existence of a statutory mechanism for examining exceptional cases does not constitute an extensive breach of the bounds of the maximum age difference rule. It may be assumed that the appeals tribunal will formulate criteria for departing from the rule under discussion, and will limit these departures to special and unusual cases that justify the deviation. Moreover, since a maximum age difference of 43 years has been fixed for domestic adoption, whereas the difference was fixed at 48 years for intercountry adoption, it may be assumed that the number of exceptional cases in which justification will be found for departing from the maximum age difference in intercountry adoptions will be smaller than the number of exceptions – small in any case – in which justification is found for departing from the rule in domestic adoptions.

9.    Thus, the Adoption Law establishes a mechanism which, according to the interpretation that seems to me to be reasonable and appropriate, allows for departure from the maximum age difference rule in special cases that justify so doing. In this sense, the existing legislation provides a response to the main relief sought by the petitioners, i.e., to allow exceptions to the said rule and to the norm that was set in its framework. In light of this, and subject to the possibility of the appeals tribunal having discretion, according to my approach, the petition should be granted partially only, in the sense that the possibility of considering a departure from the maximum age difference rule in exceptional, unusual cases is not in the hands of the private adoption associations, as requested by the petitioners, but rather, in the hands of the statutory appeals tribunal the operates according to the Adoption Law.

 

Vice President E. Rivlin

1.    The legal question that lies at the heart of the case before us is not simple, and my two colleagues, President D. Beinisch and Justice A. Procaccia, each arrived at a different conclusion. After reading both the opinions, I have reached the conclusion that my position is closer to that of President Beinisch in relation to most of the issues, and I would even go further than she did had her ruling not provided an appropriate response to the question at issue. Rule 4(b)(1) of the Professional Rules and Guidelines for the Operation of a Recognized Non-Profit Organization under the Adoption of Children Law, 5741-1981 (hereinafter: the maximum age difference rule), enacted by the Minister for Welfare in 1998, raises questions on the constitutional and administrative planes. I concur in the position of my colleague, the President, that for the purpose of ruling on the petition, it is not necessary to decide on the constitutional questions that arise, and similar to her opinion, my position too is based on the administrative arguments raised by the petitioners. Nevertheless, I would like to briefly discuss the constitutional question at issue, addressed by my colleagues in their opinions.

The parameters of the constitutional right to parenthood

2.    My colleague Justice Procaccia ruled that the right to adopt a child is not a recognized legal right, and a fortiori, it is not a meta-legal constitutional right. She points out that the right to parenthood is in essence a “negative” right and it does not have the capacity to impose on the state a positive obligation to assist individuals in its realization. According to Justice Procaccia, the right to adopt, which is derived from the right to parenthood, involves active assistance on the part of the state in realizing the aspiration to parenthood, and consequently, it should not be recognized as a constitutional right. Another reason for not recognizing a constitutional right to adopt is attributed by Justice Procaccia to the fact that recognition of such a right might detract from the main purpose for which the institution of adoption was created – concern for the best interests of the adopted child. The President, on the other hand, preferred not to rule definitively on the constitutional question confronting us. Nevertheless, she pointed out that the right to parenthood by way of adoption is found “on a more exterior circle vis-à-vis natural childbirth (which . . .  is included in the ‘hard kernel’ of the right to family life and parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents.” The President is of the opinion that because of the remove of the right to adoption from the hard core of the right to parenthood, the degree of protection it enjoys is less.

3.    I would like to add a few words relating to the positions expressed by my colleagues on the constitutional question. I am not convinced that there is such a significant gap between realization of the right to natural parenthood and realization of the right by way of adoption, to the extent that it can be said definitively that one is situated within the kernel of the right to parenthood and the other on its margins. Indeed, ideal parenthood is by natural childbirth, and the assumption is justified that bearing a child who carries the genetic code of his parents creates a bond and responds to a stronger need than parenthood that is realized by way of adoption (para. 3 of the opinion of my colleague, the President; New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 448). It may also be assumed that many of those who apply to adopt do so as the default option after their desire to bring children into the world naturally has not been realized. Nevertheless, the underlying need is similar in essence in both cases – the desire for a child, for continuity. As noted by my colleague President Beinisch, “[]prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means.” The sound words appearing in the opinion of my colleague, Justice Procaccia, concerning the status and the great importance of the right to family life, are applicable, in my view, to both natural parenthood and to parenthood that is realized by way of adoption.

Moreover, it often happens that the yearning for a child is strongest in those who are not able to realize it in a simple manner. The cry of the childless for help has been heard since ancient times. In New Family v. Committee for the Approval of Surrogacy Agreements [8], Vice-President Cheshin described one of these cases:

‘Who does not remember the desperate cry of the barren Rachel in calling to her husband Jacob: “Give me children or else I die” (Gen. 30:1). (Neither will we forget Jacob’s harsh, irritated reply: “And Jacob’s anger was kindled against Rachel; and he said: Am I in God’s stead, who hath withheld from thee the fruit of the womb?”) This cry is the cry of the living being’s will to survive, a will which, with the birth of a child, will fulfill the “voice of blood” between parents and their children (as per Deputy President Sh.Z. Cheshin, in CA 50/55 Hershkovitz v. Greenberger [1955] IsrSC 9(2) 791, at p. 799, para. 30).

Rachel’s pain, and that of Hannah, who wandered around the Tabernacle when “she was in bitterness of soul, and prayed unto the Lord, and wept sore,” resound down the generations and express the great void created by the absence of a child. This, in many cases, is the situation of those who seek to adopt. Thus, for example, Rachel at the end of the day adopts a solution that is to a certain degree related to adoption, and she realizes her desire for continuity through the children of her handmaiden Bilhah. After the birth of the son of Bilhah and Jacob, Rachel declares: “God hath judged me, and hath also heard my voice, and hath given me a son,” and her cry is no longer heard.

4.    The legal status of the relationship that is created between the adoptee and the adopters after the adoption supports the position that the difference between biological parenthood and parenthood by way of adoption should not be seen as creating a difference of substantial normative significance. My colleague Justice Procaccia addressed this relationship, and noted that non-recognition of a constitutional right to adopt does not “detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full rights and obligations typical of the relations between parents and children is created between the adopter and the adoptee, replacing the biological blood ties of the child with the family of origin, and a new family unit is established that constitutes a subject of constitutional rights.” It is hard to believe that pursuant to the difference between biological parenthood and parenthood by way of adoption, a certain level of constitutional protection would be granted to the relations between a child and his parents in the case of a biological family, and inferior protection granted in the case of an adopted child (after the adoption). In light of all this, it appears that the difficulty in defending the right to parenthood in the case of adoption does not stem from a substantive difference between biological parenthood and parenthood by way of adoption, but from two other difficulties – the difference between a right which is of a “negative” nature and a right of a “positive” nature, and primarily, the great importance of the wellbeing of the adopted child.

5.    My colleague Justice Procaccia is of the opinion that the right to parenthood that is recognized in Israeli law is in essence a “negative” right, one that was designed to protect the individual from state intervention, and it contains nothing which would impose a positive duty on the authorities to enable the individual to adopt. Personally, even if I were to accept the distinction made by my colleague between “negative” rights and “positive” rights in Israeli law, I am not convinced that this distinction necessarily reflects the situation in our case. Justice Procaccia assumes that adoption necessarily involves a positive act on the part of the state that helps the adopters to come to complete the process. However, it is possible to look at the matter from a somewhat different angle. In an unconstrained world, adoption would be likely take place by means of agreements between prospective adopters and third parties. These agreements would make the adoptions actually happen with no intervention of the authorities. And indeed, prior to enactment of the Adoption of Children (Amendment no. 2) Law, 5756-1996, as described in the opinion of my colleague Justice Procaccia, there was a “wide-spread phenomenon of adoption of children with no oversight, sometimes without the children even being registered in the local register.” Accordingly, limiting the possibilities of adoption by means of statutory regulation can be seen as a violation of the right to parenthood in the “negative” sense. It will be stressed immediately that statutory restriction of the possibilities regarding adoption is legitimate as well as essential, in view of the need to protect the child’s interests; this however, does not change the fact of the violation of the right, but only affects the degree of protection that it is accorded.

Particularly apt here are the words of Vice President M. Cheshin in New Family v. Committee for the Approval of Surrogacy Agreements [8], written as a response to a similar argument that was raised in relation to the constitutionality of limitations that were imposed on people seeking to realize their right to parenthood by way of surrogacy:

‘The State further argues thus: the right to parenthood is indeed a right, but a right to surrogacy cannot be derived from the right to parenthood. The reason is that the right to natural parenthood means only a prohibition on the state to intervene in the life of the individual and in his autonomous will, whereas the right to surrogacy implies . . . a duty imposed on society to help the individual to realize the need throbbing in him for parenthood. We will not accept this argument either. Indeed, the right to parenthood is a right in the category of a liberty – it is a right that has no correlative duty imposed on another – whereas surrogacy necessitates the intervention of third parties. As stated in the Aloni Report  . . . “It is accepted, in the United States, that extension of the right [to bear a child – M.C.] to reproductive technologies does not obligate society to cover costs and expenses, just as it does not obligate the doctor or the technician to perform the procedure. The accepted explanation is that the right [to bear a child – M.C.] has a negative character – it has the power to prevent interference in procreation – and not a positive nature – to impose a duty on another body in order to assist in procreation.” However, I do not understand how this distinction bears on our case. We are not dealing with the imposition of any sort of duties on the state (or on any third party), but with a request of the petitioner that she not be prohibited from embarking on the process of surrogacy. A prohibition imposed on her by the state to resort to the process of surrogacy, so claims the petitioner, is what violates her right to parenthood, and the response of the State, which relies on the distinction between a liberty-type right and between a right that has a correlative duty is in any case not an answer’ (ibid., at pp. 448-449).

The Adoption Law, like the Embryo Carrying Agreement (Approval of Agreements and the Status of the Child) Law, 5756-1996, create a comprehensive system for realizing the right of parenthood in a certain manner, and even though most of the arrangements in these Laws fulfill the criteria of the limitations clause, it cannot be said that they involve no violation of the right to parenthood.

6.    The major problem attaching to the right to parenthood, in the context of adoption, concerns the great importance of the best interests of the child. On this matter, I agree with my colleague the President that the question of the best interests of the child ought not to be examined at the stage of actual recognition of the constitutional right, but rather, when we turn to the task of balancing and we examine the degree of protection afforded to this right. No one disputes that the best interests of the child is the crux of the legal adoption arrangement. A consequence of this is, as stated, that most of the statutory arrangements will fulfill the constitutional balancing criteria.  But it must again be stressed that the upholding of values, interests and competing rights, however strong they may be, should not affect the upholding per se of a distinct constitutional right, but only the degree of protection it is afforded. As I pointed out in another matter:

‘The actual definition of the right to establish a family should not be restricted. Even if it is not possible, due to permitted constraints, to enable the full realization of the right, this does not detract from recognition of the right. My colleague the Vice President notes that the constraints that are imposed on the constitutional right here do not touch upon the “kernel” of the right; rather, they are at its periphery. He therefore would define the disputed right in a more focused manner. My view is different. Even if this is a matter of a “peripheral” aspect of the right – as he assumes – this does not affect the definition of the right. The starting point must assume a generous definition. The restriction – which is likely to take into account the position of the matter on the periphery of the right or at is heart – must be taken into account in the framework of application of the limitations clause. The balance between the rights of the individual and the public interests, or between [these interests] themselves, must be effected in the framework of the limitations clause (Adalah v. Minister of the Interior [2], at para. 8 of my opinion).

As stated, the petition before us is not the appropriate forum in which to decide on the constitutional questions that were raised, and the ruling on the substance of the petition below will focus on the arguments on the administrative plane.

The administrative plane

7.    I, like my colleague the President, believe that the main problem with the maximum age difference rule lies in it being a rigid rule that does not allow for discretion to depart from it in appropriate cases. My colleague the President is of the opinion that negation of the possibility of deviating from the maximum age difference rule is incompatible with the accepted criteria of administrative law, and she dismisses the arguments of the State on this point one by one. I concur fully with the President’s position on this matter, and adopt her words completely.

As the President stressed, the lack of flexibility in the arrangements established by the Authority make one wonder about the reasonableness and the proportionality of these arrangements. This is generally the case, and all the more so when the arrangement causes real harm to a person’s basic legal right. In our case, the arrangement established by the State is substantively detrimental to the aspiration for parenthood of those seeking to adopt, and in these circumstances, the competent authority must point to reasons bearing substantial weight in order that the arrangement pass the tests of reasonableness and proportionality.

8.    Another matter is the relationship between the individual examination and the comprehensive arrangement. As a rule of thumb, it may be assumed that in cases such as that under discussion here, an individual examination will in most cases lead to a more precise, correct result than a comprehensive arrangement. Comprehensive arrangements, by their nature, are not adapted to all the possible circumstances, but are based on a general assessment, on a presumption concerning the appropriate rule. This is all the more true when we are dealing with the assessment of people, each of whom bears traits and characteristics peculiar to him. In the case of adoption, we find ourselves in a framework of an extremely complex task, the aim of which is to bring together separate people and make them into a family. There is, therefore, more than reasonable basis to assume that a meticulous individual examination, that weighs up all the relevant data, including, of course, the age of the applicant, will lead to a more correct answer in each individual case – more correct not only in relation to the applicants, but also, and primarily, in relation to the best interests of the child, for whom the most suitable arrangement will be found.

Indeed, sometimes the establishment of a sweeping arrangement, of which arbitrariness is an inseparable component, is unavoidable. But when is this so? When there is a clear advantage to such a sweeping arrangement – an advantage that outweighs the price it exacts. Thus, for example, it seems that there is a clear advantage to setting a minimum age for obtaining a driving license, which exceeds the advantage of individual examination. At other times, there are weighty reasons for recognizing the legitimacy of a sweeping arrangement. This is the case, for example, when the argument that it is impossible to conduct efficient individual examinations is justified (Adalah v. Minister of the Interior [2], per President Barak, at para. 89; per Vice President Cheshin, at para. 109). However, the case before us is one in which a meticulous, comprehensive and individual examination of each adopter actually takes place, reflecting and confirming the position that there is a clear advantage to individual examinations on the question of the suitability of the prospective adopter. Thus, in any case, there is an examination, inter alia, of the “eligibility and suitability of the person seeking to be an adoptive parent . . . the family background of the applicant and his present position . . . his social environment . . . [and] other matters to be determined by the Minister of Labor and Welfare, including a psychological assessment of the applicant and his family” (s. 28H of the Adoption Law). Similarly, in every case of an application to adopt, determination of the eligibility of the applicant is made in light of an individual report drawn up by a social worker (s. 28N of the Adoption Law). This examination places the emphasis on the concrete adopter and his suitability to adopt; it comprises many criteria that are all weighed, and in light of the result, the decision is made as to whether the applicant is indeed suitable to be an adoptive parent. In these circumstances, there must be special justification for deviating from the individual examination that already exists, justification which, as elucidated in the opinion of President Beinisch, apparently is not present in our case.

My colleague Justice Procaccia holds that the question of the age difference between the adopter and the adoptee is a question for professionals, subject “the clear discretion of the competent authority”. Indeed, the question of the effect of the age difference on the adoptee is a relevant question, which falls, as one of the considerations, within the discretion of the Authority. We are not denying the importance of the age difference, but we disagree with setting an age difference as a sweeping arrangement from which there can be no deviation in appropriate cases. A study of the expert positions presented by the respondents reveals that they recognize the importance of the age difference to the wellbeing of the child, but they do not address the position of the age difference within the whole set of relevant considerations relating to the child’s best interests. Calculation of all the data sometimes raises complex questions. For example, is it better for the prospective adoptee that he be handed over to a family in which one of the couple is 47 years old and the other is 70 years old, or to a family in which the couple are both aged 49? Would it be justified to hand over a child for adoption to adopters who are immeasurably superior to other candidates in all other criteria (such as socio-economic position, and personality structure) but they are just over the maximum age limit? No satisfactory answer to these difficult questions has been provided by the respondents. Nor has a satisfactory answer been given to the possibility of exceptions in domestic adoption as opposed to their absence in intercountry adoption, or to the fact that the ideal age difference is not the same for domestic and intercountry adoption, and even in intercountry adoption itself, the age difference was changed from 45 to 48. These matters seem to hint that there is no unequivocal justification for setting a comprehensive, sweeping arrangement on the question of the age difference from the point of view of both the best interests of the child and the interests of the applicants. The number of different arrangements in comparative law regarding the desirable age difference, as cited at length in the pleadings of both the petitioners and the respondents, is another indication that there is no one accepted age difference that crosses boundaries and experts. The only professional reference on the part of the respondents to the question of the possibility of exceptions to the rule is found in the summary of the position of the relevant committee that was drawn up by Professor Joseph Tamir, part of which was quoted in the opinion of my colleague Justice Procaccia. The opinion of my colleague the President contains a clear and incisive response to these arguments, and I can only concur with her on the matter.

10.    My colleague the President attributed weight to the argument of the respondents whereby in view of the fact that the process of intercountry adoption is implemented primarily by private adoption associations, and due to the concern that the competition between the adoption associations may be detrimental to the child’s interests, the existence of rigid rules for checking the eligibility of prospective adopters is justified. In my view, this argument cannot change significantly the answer to the question of the reasonableness and the proportionality of the maximum age difference rule. As stated, when an adoption association examines an application for adoption, it must check many parameters, some of which were mentioned above. This examination is conducted for each case individually, and weighing up of all the parameters is done with recourse to the report of the social worker. The process as a whole is subject by law to close oversight by the authorities. The concern expressed by the respondents is relevant to the process of adoption in general, but a sweeping, unequivocal rule that does not take into account other parameters for checking the eligibility of the adopter, exists – according to the material before us – only with respect to the question of the age difference. I have not found a good reason for the fact that according to the respondents, the private adoption associations can be relied on to weigh up the information regarding the applicants in an appropriate fashion, but they cannot be relied on to depart from the maximum age difference rule in suitable cases only. Similarly, I am not convinced that the regular oversight, which is designed to ensure that the individual examination be conducted in proper fashion, cannot ensure a similar result on the question of the significance of age for the eligibility of the adopter.

In view of all the above, I struggled hard with the question of whether there is no choice but to declare the nullity of Rule 4(b)(1) of the Rules and Professional Guidelines for the Operation of Recognized Non-profit Organizations by virtue of the Adoption Law. However, as stated, broad validation of the position of my colleague the President may obviate the need to totally nullify the rule. Indeed, empowerment of the appeals tribunal assumes necessarily that the rule itself is not absolute, for otherwise the tribunal would not be authorized to depart from it. One way or the other, whether the rule in its strict interpretation cannot stand or whether it stands because of the interpretation proposed by my colleague the President – the result is the same: it is possible, in appropriate circumstances, to approve adoption at the stage of the final examination even if the age difference exceeds that set in the rule, as proposed by my colleague the President.  

 

Decided by majority opinion, as stated in the judgment of President Beinisch, Vice President E. Rivlin concurring, Justice A. Procaccia dissenting.

 

No order was issued for costs.

 

28 Adar 5769

24 March 2009

       

 

 

 

 

 

       

 

AAA 9135/03

1.       Council for Higher Education

2. Yael Atiya, Director of Freedom of Information at the Council for Higher Education

v.

1.       HaAretz Newspaper Publishing

2.       Shmuel Rosner, editor

3.       Ran Reznick, journalist

AAA 9738/04

Council for Higher Education

v.

Shachar Organization for the Advancement of Education in Israel

 

 

The Supreme Court sitting as the Court of Administrative Appeals

[19 January 2006]

Before President A. Barak, Vice-President M. Cheshin
and Justices D. Beinisch, E. Rivlin, M. Naor, S. Joubran, E. Hayut

 

Appeals of the judgments of the Jerusalem District Court on 11 September 2003 in AP 924/02 (Justice B. Okon) and on 19 September 2004 in AP 489/04 (Vice-President D. Cheshin).

 

Facts: In the first case, HaAretz Newspaper Publishing submitted a request to the Council for Higher Education for information. The Council gave HaAretz copies of decisions it had made, but refused to allow it access to the minutes of meetings. HaAretz therefore applied to the District Court to order the Council to grant it access to the minutes of the meetings.

In the second case, the Shachar Organization for the Advancement of Education in Israel applied to the Council for a licence to open an institute of higher education in Ashkelon. When the Council refused the licence, Shachar applied to the District Court to set aside the decision, alleging that certain members of the Council had a conflict of interests. In the course of that proceeding, Shachar asked the court to grant it interim relief by ordering the Council to disclose the minutes of the meeting of the Council at which it decided to refuse the licence.

In both cases, the Council argued that it should not be required to disclose the minutes of its meetings, since under s. 9(b)(4) of the Freedom of Information Law, ‘internal discussions’ are exempt from the general duty of disclosure under that law.

In both cases, the District Court ordered the Council to provide minutes of its discussions, subject to various conditions. The Council appealed on the question of the scope of the exemption in s. 9(b)(4) of the law that concerns ‘internal discussions’ of a public authority.

 

Held: Section 9(b) of the Freedom of Information Law does not speak of a prohibition against providing the information, but of information that the authority is not obliged to provide. Therefore, the margin of discretion that the authority should exercise before refusing to provide information of the kinds set out in s. 9(b) of the law is broader than in s. 9(a), which does speak of a prohibition.

The main reason for the exemption in s. 9(b)(4) is the concern regarding the ‘chilling effect’ that is reflected in the reluctance of members and employees of a public authority to hold frank discussions where they are not guaranteed a certain degree of protection for the opinions expressed in the course of making the decisions.

The authority may refuse to provide information concerning internal discussions, but before doing so it should take into account all the considerations that are relevant to the case, and it needs to find in the specific circumstances of each case the balancing point between the public interest in exempting the information and the public and private interest, in so far as there is one, in disclosing the information.

The decisions of the Council in which it refused the requests for information in both cases did not satisfy the test of administrative reasonableness, and therefore the District Court rightly decided to set them aside.

 

Appeal denied.

 

Legislation cited:

Council of Higher Education Law, 5718-1958, ss. 2, 4A, 25C, 25D(b)(13).

Evidence Ordinance [New Version], 5731-1971, s. 44(a).

Freedom of Information Law, 5758-1998, ss. 1, 2, 3, 7(a), 8, 8(1), 9, 9(a), 9(b), 9(b)(1), 9(b)(2), 9(b)(4), 9(b)(5), 9(b)(6), 9(b)(8), 10, 11, 13, 17(d).

Protection of Privacy Law, 5741-1981.

 

Israeli Supreme Court cases cited:

[1]      HCJ 5771/93 Citrin v. Minister of Justice [1994] IsrSC 48(1) 661.

[2]      HCJ 1601/90 Shalit v. Peres [1991] IsrSC 44(3) 353; IsrSJ 10 204.

[3]      HCJ 3751/03 Ilan v. Tel-Aviv-Jaffa Municipality (not yet reported).

[4]      HCJ 337/66 Estate of Kalman Fital v. Assessing Committee of Holon Municipality [1967] IsrSC 21(1) 69.

[5]      AAA 8282/02 HaAretz Newspaper Publishing Ltd v. State of Israel, State Comptroller’s Office [2004] IsrSC 58(1) 465.

[6]      AAA 6103/04 State of Israel, Ministry of Transport v. Israeli News Co. Ltd (not yet reported).

[7]      HCJ 2534/97 Yahav v. State Attorney [1997] IsrSC 51(3) 39 (decision).

[8]      CA 4999/95 Alberici International v. State of Israel [1996] IsrSC 50(1) 39.

[9]      HCJ 243/81 Yaki Yosha Ltd v. Film and Play Review Board [1981] IsrSC 35(3) 421.

[10]    CA 7759/01 HaAretz Newspaper Publishing Ltd v. Ministry of Justice, State of Israel (unreported).

[11]    AAA 1825/02 State of Israel, Ministry of Health v. Retirement Homes Association (unreported).

[12]    HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

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

[14]    CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[15]    HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[16]    HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[17]    HCJ 2324/91 Association for Civil Rights in Israel v. National Planning and Building Council [1991] IsrSC 45(3) 678.

[18]    CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [1994] IsrSC 48(3) 749.

[19]    HCJ 954/97 Cohen v. President of Israel Bar Association [1998] IsrSC 52(3) 486.

[20]    HCJ 131/65 Savitzky v. Minister of Finance [1965] IsrSC 19(2) 369.

[21]    HCJ 557/75 East Lod Buildings (1953) Ltd v. Lod Local Planning and Building Committee [1976] IsrSC 30(2) 17.

[22]    HCJ 162/78 Federation Health Fund v. Appeals Board [1978] IsrSC 32(3) 449.

[23]    HCJ 62/75 9 Hibbat Zion Street Ramat Gan Co. Ltd v. Ramat Gan Local Planning and Building Committee [1975] IsrSC 29(2) 595.

 

American cases cited:

[24]    Schell v. United States Department of Health & Human Services, 843 F.2d 933 (6th Cir., 1988).

[25]    National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132 (1975).

[26]    National Wildlife Federation v. United States Forest Service, 861 F. 2d 1114 (9th Cir. 1988).

 

Australian cases cited:

[27]    Harris v. Australian Broadcasting Corporation (1983) 50 A.L.R 551.

[28]    Re James and Others and Australian National University (1984) 6 A.L.D. 687.

[29]    Re McKinnon and Secretary, Department of the Treasury (2004) 86 A.L.D. 138.

[30]    Re Sunderland and Department of Defence (1986) 11 A.L.D 258.

[31]    Re Burns and Australian National University (No. 2) (1985) 7 A.L.D. 425.

 

Canadian cases cited:

[32]    Canada Inc. v. Canada (Minister of Industry) (C.A.) (2001), [2002] 1 F.C. 421; 2001 FCA 254.

 

For the appellants — D. Briskman.

For the respondents in AAA 9135/03 — T. Glick, M. Fridman.

For the respondents in AAA 9738/04 — R. Har-Zahav, Y. Shamir.

 

 

JUDGMENT

 

 

Justice E. Hayut

The two appeals before us, AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing (hereafter — ‘the HaAretz appeal’) and AAA 9738/04 Council for Higher Education v. Shachar Organization for the Advancement of Education in Israel (hereafter — ‘the Shachar appeal’), raise the same question with regard to the scope of the duty to provide information that is imposed on a public authority under the Freedom of Information Law, 5758-1998 (hereafter — ‘the Freedom of Information Law’ or ‘the law’), and with regard to the interpretation of the exemption stipulated in this regard in s. 9(b)(4) of the law, according to which the authority is not obliged to provide information:

‘Information that should not be provided or that there is no duty to provide

9. …

     (b) A public authority is not obliged to provide information that is one of the following:

            …

 

(4) Information concerning internal discussions, memoranda of internal consultations between employees of public authorities, their colleagues or advisers, or of statements made within the framework of an internal inquiry, as well as an opinion, draft, advice or recommendation, which were given for the purpose of making a decision, with the exception of consultations stipulated by law.

…

Both the appeals concern the refusal of the Council for Higher Education (hereafter — ‘the Council’) to disclose internal documents and minutes of its meetings and the meeting of its subcommittees. Because of the common questions that arise as aforesaid in both of these appeals, it was decided to hear them jointly and with an extended panel (see the decisions of 13 January 2005 and 16 January 2005).

The facts and the judgment of the trial court in the HaAretz case

1.    The respondents in the HaAretz appeal, within the framework of their work as journalists, published articles concerning the Council and they wished to continue to report on its activity. Inter alia, the respondents wanted to monitor the measures that the Council was adopting as a result of the publication of the findings in the State Comptroller’s report concerning it in April 1999. For this purpose, the third respondent requested the Council to allow it to inspect the minutes of its meetings in the five years that preceded the request and its decisions in those years, as well as the minutes of the discussions and the decisions of the Planning and Budgeting Committee of the Council in the four years preceding the request. Following discussions between the parties, the respondents restricted their request to the minutes of the meetings in the three years that preceded the request. The second appellant, who is the person at the Council responsible for making information available to the public, agreed to send to the respondents the decisions that was made at the meetings of the Council and the meetings of the Planning and Budgeting Committee, but she refused to provide them with the minutes that were requested, in reliance on the provisions of s. 9(b)(4) of the Freedom of Information Law. In response to the refusal, the respondents filed a petition to obtain the material that was requested. The petition was filed in the Jerusalem District Court, sitting as the court for administrative affairs.

2.    In its judgment on 11 September 2003, the trial court (his honour Justice B. Okon) discussed the great public interest in the activity of the Council. With regard to the exception provided in s. 9(b)(4) of the Freedom of Information Law, the court held that although it did exclude information originating in internal discussions from the scope of information that required disclosure, nonetheless in order to justify the privilege of information in a concrete case the authority was required to indicate the reason justifying the privilege and the harm that it might suffer as a result of the disclosure. The court said:

‘It is not sufficient for the authority to say that the information is classified as an internal consultation. The internal consultation is a condition that allows the authority to refrain from providing the information, but it is not a sufficient condition. The authority must point to something else that allows the refusal. In other words, the law provided a list of cases in which the authority is not liable to provide information. The fact that a certain case falls within the scope of this list does not allow the authority to refrain from making the disclosure. It allows the authority to refrain from making the disclosure only if there is a reason that justifies this… It is necessary to point to the fact that harm may be suffered in practice as a result of revealing the information. It is not sufficient in this case to mention possibilities or speculations’ (para. 9 of the judgment).

The court held that the concern that the disclosure of internal consultation might harm proper administration is not a sufficient reason for preventing the disclosure. Even the argument that the members of the Council are representatives of various institutions and therefore it will be difficult for them to speak freely about a matter concerning their colleagues and the fear that the information will be taken out of context do not justify a refusal to provide the information. The court went on to hold that the decisions of the Council in this context were laconic and did not reflect the various opinions that were expressed with regard to adopting them, and therefore it was insufficient merely to provide the decisions, and the Council should also provide the respondents with the minutes that preceded them. The court rejected the Council’s argument that the scope of the material requested justified the refusal to provide the information and it also rejected the Council’s argument that the petition sought to impose the duty of disclosure retroactively; the court held that retroactive disclosure could not be compared to retroactive application of the law and that the disclosure was limited to the current composition of the Council, which should have anticipated the duty of disclosure. For these reasons, the trial court granted the petition but allowed the Council to refrain from disclosing information that violates the privacy of third parties or information that is protected by established rules of privilege, in accordance with the following rules: first, it held that if the Council was of the opinion that certain minutes or certain decisions harmed the interests of a third party, it could remove those passages from the minutes, provided that it indicated that the passage had been removed, the date on which the minutes were recorded and the reason why the privilege was sought. The court also held that the Council was entitled to remove passages that were privileged under the law, including consultations with lawyers, provided that it expressly mentioned that the passage was removed, the exact reasons for this and the dates of the discussions. Finally, the court held that the Council could apply to the court in order to omit the names of certain speakers or the names of speakers in certain minutes, while giving the reason for this based on the content of the discussion or the statement, and that the disclosure process should be completed in its entirety within 30 days. With the respondents’ consent, the disclosure was restricted to minutes of the current composition of the Council only, but the respondents retained the right to petition the court once again with regard to the restrictions and privileges that the Council would seek to impose pursuant to the rules that the court determined as aforesaid.

This led to the filing of the HaAretz appeal before us. At the same time as it filed the appeal, the Council applied for a stay of execution of the judgment, and on 13 October 2003 this court (per Justice S. Joubran) granted the application.

The facts and the judgment of the trial court in the Shachar case

3.    The respondent in the Shachar appeal, the Shachar Organization for the Advancement of Education in Israel, submitted to the Council, at the end of 2001, an application to receive a licence under s. 25C of the Council of Higher Education Law, 5718-1958 (hereafter — the Council of Higher Education Law), to open an institution in Ashkelon that would teach courses for a degree of MD that would be given by the University of Gdansk in Poland. The respondent withdrew this application after it found out that the Ministry of Health, as well as senior members of the Council, expressed their objection in principle to holding medical courses within the framework of a branch of a foreign university. In January 2003 the respondent filed another application, and this time it asked for a licence to establish in Ashkelon an institution for paramedic courses only, which would give an entitlement to a credit point for a degree of MD from the University of Gdansk. The Council’s subcommittee for the extensions of foreign institutions (hereafter — the extensions committee) examined the new application and recommended giving a temporary licence to the respondent subject to various conditions that it stipulated. This recommendation was considered at the meeting of the Council on 25 November 2003, during which the position of the deans of the medical schools in Israel was heard as well as the position of the respondent’s representatives. On 16 December 2003, the council decided, by a majority, to refuse the application notwithstanding the recommendation of the extensions committee. In its decision, the Council said that it saw no reason to increase the scope of the activity of extensions to include the sensitive field of medical studies and it explained this by saying that:

‘The experience that has been accumulated with regard to the activity of extensions of foreign institutions in Israel since the enactment of amendment 11 of the Council of Higher Education Law in 1998 is in general not positive, and therefore it is inconsistent with an increase in the scope of the activity of extensions of foreign institutions to such a sensitive field as medical studies.’

The Council also said in its decision that there is no research activity taking place within the framework of the institution in Israel that is the subject of the petition, and therefore it held that the respondent does not satisfy the condition provided in s. 25D(b)(13) of the Council of Higher Education Law, according to which the institution in Israel should provide the education ‘at an appropriate place with suitable conditions, including conditions that are required for ensuring a proper standard of education.’ At the end of its decision, the Council further said that the scope of the teaching at the institution by lecturers whose main position was at recognized and subsidized Israeli institutions prima facie exceeds what is permitted by the Planning and Budgeting Committee, but in view of the other reasons that decided the application the Council did not address this issue in detail.

4.    The respondent in the Shachar appeal applied to the Jerusalem District Court sitting as the court for administrative affairs and it petitioned the court to set aside the decision. In its petition it argued, inter alia, that some of the members of the Council who took part in making the decision had a conflict of interests since they were the representatives of universities where there were medical faculties that wished to prevent competition in this field. As interim relief the respondent applied to the court to order the Council of Higher Education to disclose to it all the minutes of the discussions that took place with regard to it in the plenum of the Council and the extensions committee, as well as the report of the licensing unit concerning it which was submitted to the extensions committee. At the suggestion of the trial court, the part of the petition attacking the actual decision of the Council was struck out because of lack of jurisdiction, and the hearing before the court continued only with regard to the rest of the original petition, which concerned the disclosure of the minutes and the report of the licensing unit. To complete the picture it should be stated that with regard to the actual decision of the Council, which rejected the application to receive the licence, the respondent filed a petition to this court sitting as the High Court of Justice. This petition is still pending and no decision has yet been made (HCJ 6671/04 Shachar Organization for the Advancement of Education in Israel v. Council for Higher Education).

5.    In its judgment on 19 September 2004, the trial court (his honour the vice-president, Justice D. Cheshin) granted the administrative petition with regard to providing the documents, in which it said the following:

‘Even if the authority is not obliged to provide the information, this does not mean that it can refuse to provide it contrary to the rules of administrative law with regard to the manner of making an administrative decision. Therefore, when we are speaking of the minutes of internal discussions, there is admittedly no obligation to provide them, as there would be under the general provision of s. 1 of the law, but a decision not to provide them cannot be made solely because they are the minutes of internal discussions… but the public authority should consider each case on its merits and decide it according to the best administrative tradition’ (para. 13 of the judgment).

The trial court went on to hold that for the purpose of the decision whether or not to disclose the minutes, the Council should take into account all the considerations relevant to the issue, including general public considerations and principles concerning the sensitivity of internal discussions and concrete considerations concerning the facts of the specific case and the harm that would actually be caused as a result of the disclosure, on the one hand, and the non-disclosure, on the other. In our case, the trial court held that the Council had not proved any actual harm that it might suffer as a result of a disclosure of the requested documents; the decision leads to the problematic outcome of shutting the respondent out; in addition, public confidence is likely to be harmed if the Council’s deliberations are not transparent. The court went on to hold that it was not persuaded that the material that was given to the respondent was sufficient in order to allow it to argue in an ‘informed and effective’ manner against the decision made in its case. The court denied the alternative application of the Council to exclude the names of the speakers from the documents, since it held that this might undermine the purpose for which the information was requested in the first place. Finally, the trial court held that it could not accept the general argument that the Council raised to the effect that disclosing the minutes of the internal deliberations of public authorities would result in a reduction in the scope of recording the minutes so that essential information would be missing from the authority’s files. The trial court emphasized in this context that the Council could not do what it wished when recording the minutes and it had a duty to record complete and full minutes of the deliberations that it held in order to allow scrutiny of its decision-making process. For these reasons, as we have said, the trial court accepted the respondent’s arguments and ordered the Council to provide the documents that were the subject of the petition for the respondent’s inspection, after removing the parts that concerned legal advice.

This led to the filing of the Shachar appeal before us. Together with the appeal, the Council filed an application for a stay of execution of the judgment and its application was granted (see the decision of his honour Justice Y. Adiel of 7 November 2004).

The arguments in the appeals

6.    In both of the appeals, the Council complains of the interpretation given in the judgments against which it is appealing to the exemption contained in s. 9(b)(4) of the Freedom of Information Law. It also complains of the finding in those judgments, which in its opinion is erroneous, that a public authority must point to the harm that it will suffer as a result of disclosing the information that was requested, and that it is not sufficient for it to show that the documents that were requested are minutes of internal deliberations, in order that the information included in them should be privileged. This finding, so it is alleged, is contrary to the language and the purpose of the section, which is to protect the free and honest speech of the members of the authority within the framework of the closed discussions that it holds. According to the Council, an internal discussion is a discussion that is held prior to making a decision or formulating a policy, and it is not open to the public. Therefore, it is sufficient for the authority to show that we are dealing with an internal discussion for it to be able to refuse to provide the minutes of that meeting. The Council also argues that, contrary to the rulings of the trial court in both judgments that are the subject of the appeals, the burden of persuading the court that there is a special interest justifying the requested information being provided should rest with the party asking for the information, and not with the authority. In this context, the Council refers to the provisions of s. 17(d) of the Freedom of Information Law, according to which the court has the power, notwithstanding the provisions of s. 9 of the law, ‘to order the requested information to be provided… if in its opinion the public interest in the disclosure of the information takes precedence over the reason for rejecting the request…’ and in its opinion this section supports its approach with regard to the burden imposed on the person requesting information in such a case. The Council further emphasizes that the approach adopted by the District Court, according to which minutes of internal discussions should be disclosed unless the authority can show that this harms or is likely to harm the public interest in the specific case overlooks the fact that disclosing such minutes harms the public interest and that this reason is what prima facie lies at the heart of the exemption contained in s. 9(b)(4) of the law. According to the Council, the disclosure of information from internal discussions as aforesaid is not only likely to cause harm to the process of making the decisions, since the members of the authority and its representatives will be deterred from expressing their opinions in an honest and open manner, but there is an additional concern that the desire to protect the participants in the discussions from a disclosure of their positions will lead to the result that the authorities will refrain from keeping exact minutes that reflect the discussions as they really took place, with all of the different opinions and doubts that are characteristic thereof. Alternatively, the Council argues that even if we assume that it is obliged to provide the requested information, the trial court should have held that it is entitled to exclude the names of the speakers from the minutes.

In the HaAretz appeal, the Council further emphasizes that there is no justification for holding it liable to make clarifications with third parties who may be harmed by the disclosure and that in view of the large number of these third parties, this will involve an unreasonable burden in its work, a burden that is in itself a reason for nor providing the information under s. 8(1) of the Freedom of Information Law. The Council reiterated its argument that the disclosure involves a retroactive dimension, since its members could have assumed that their names would not be disclosed unless the person requesting the information showed a specific reason for this. Finally, the Council argues that it does not object to providing the respondents in the HaAretz case with those parts of the minutes that discuss general issues which do not directly concern the interests of a third party and which do not involve other reasons as to why they should be privileged, although this should be without the names of the speakers. The Council says that it has already provided the respondents with hundreds of pages of minutes, as well as the letter of the chairman of the Planning and Budgeting Committee, which reviews the actions that were carried out in response to the publication of the State Comptroller’s report.

In the Shachar appeal, the Council further argues that the fact that the information relates to the respondent itself does not justify its disclosure. It also argues that the trial court erred when it held that that material that it supplied to the respondent was insufficient to allow it to make effective and informed argument with regard to the decision that was made, and the proof of this is the petition that the respondent filed in this regard in the aforesaid HCJ 6671/04, within which framework the respondent may avail itself of procedural methods for receiving additional information that is required for the petition. The Council also argues that there is nothing to prevent the respondent being given the minutes of the meeting in which it participated and that, as a rule, it would agree to provide information from internal discussions in various cases, when these concerned discussion of matters of principle with wide-ranging ramifications, which do not harm any third party, after removing the names of the speakers.

7.    The respondents in the two appeals rely on the judgments of the trial court and argue that a restrictive interpretation of the exemption contained in s. 9(b)(4) of the Freedom of Information Law realizes the right of the public to receive information from public authorities, which is a supreme principle that underlies the Freedom of Information Law. Therefore they are of the opinion that the rulings of the trial court should be upheld in both cases; according to these, the fact that we are concerned with information that relates to internal discussions is an insufficient justification for the authority to refuse to provide the information, and it needs to show that in the circumstances of the case there is a real reason that justifies the information being privileged. The respondents further argue that it is not right that meetings of the Council, which is a public body with extensive powers, should remain privileged; the Council, as a statutory body, should conduct its discussions transparently. They also argue that public authorities have a duty to keep full and complete minutes of their meetings, and it is questionable whether meetings of the plenum of the Council fall within the scope of the term ‘internal discussions’ in s. 9(b)(4) of the law, in view of the fact that these are not merely preparatory discussions but the official discussions of this body, in which its decisions are made.

The respondents in the HaAretz appeal further argue that inspecting the decisions of the Council and the Planning and Budgeting Committee, without inspecting the minutes, cannot help them since the decisions are laconic and do not give the reasons underlying them. In response to the Council’s argument concerning the protection of third parties, the respondents argue that the mechanism determined by the trial court in this regard is effective and it properly balances the rights of third parties against the public’s right to know. The respondents also argue that the Council’s argument that the substantial amount of minutes justifies their refusing to provide them should be rejected. Finally the respondents argue that the names of the speakers should not be removed from the minutes, and since the duty of disclosure has only been directed at the current composition of the Council, there are no grounds for the argument of retroactivity.

 The respondent in the Shachar appeal further argues that its right to inspect the minutes derives not merely from the right enshrined in the Freedom of Information Law that is given to every citizen and resident, but also from the right of inspection that it has because of its personal interest in the information. The respondent further argues that in order to substantiate its argument that the Council’s decision was not based on any valid reasons, the identity of the speakers needs to be disclosed, and in any case even if it had sufficient information in its possession to attack the decision, this would not be a reason for denying the application.

Deliberations

The right to receive information from public authorities

8.    The right to receive information concerning the activity of public authorities is one of the cornerstones of a free society. It concerns the very existence of democracy, it nourishes and is nourished by the freedom of expression and it reflects the legal outlook that the authority is a public trustee that is obliged to look after the interests of the public, rather than itself, when carrying out its duties (see A. Barak, ‘Freedom of Information and the Court,’ 3 Kiryat HaMishpat 95 (2003), at pp. 96-99. On the relationship between the right of the public to information and the freedom of expression, see HCJ 5771/93 Citrin v. Minister of Justice [1], at p. 673, and see also A. Mason, ‘The Relationship between Freedom of Expression and Freedom of Information,’ Freedom of Expression and Freedom of Information (J. Beatson and Y. Cripps eds., 2000), at p. 225). This was already discussed by John Adams in the eighteenth century, when he said:

‘… liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings and a desire to know. But, besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers. Rulers are no more than attorneys, agents, and trustees for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees’ (J. Adams, A Dissertation on the Canon and Feudal Law (1765)).

In HCJ 1601/90 Shalit v. Peres [2], at p. 361 {216}, this court emphasized the importance of the principle of freedom of information from an additional perspective, namely scrutiny of the propriety of the actions of the public authority, when it said: ‘The public eye is not merely an expression of the right to know, but also a reflection of the right to scrutinize.’ Indeed, the transparency of the actions of government authorities allows citizens to monitor their actions and the considerations underlying them, and so to criticize them, where justified, and it makes a decisive contribution to ‘public hygiene’ and to improving the quality of the authority’s conduct when it knows that its actions and its decision-making process are exposed and transparent to the public eye (see N.S. Marsh, ‘Introduction,’ Public Access to Government-Held Information (N.S. Marsh ed., 1987) 1, at p. 4). The positive correlation between the right of the public to information and public confidence in government authorities was discussed by Justice M. Cheshin in HCJ 3751/03 Ilan v. Tel-Aviv-Jaffa Municipality [3], at para. 15:

‘When we realize that the civil servant acts as a trustee and as an agent of the public, he is therefore bound by the duties of an agent, including the duty to account for his actions, i.e., to disclose to his principals — the entire public — what he has done and what he has not done, why he has done one thing and not another, and when he takes no action, why he took no action. He is obliged to disclose all his acts and omissions, together with the reasons for them. Only in this way can the public know whether the civil servant has acted faithfully; only in this way will the public have confidence in the administration and its employees. The administration therefore has a duty of transparency in its actions and decisions.’

The access of the individual to information, as opposed to making the information privileged and keeping it secret, brings the individual closer to the authority and increases his confidence in government decisions. The remarks of Gerald Wetlaufer in this regard (G. Wetlaufer, ‘Justifying Secrecy: An Objection to the General Deliberative Privilege,’ 65 Ind. L. J. 845, at p. 886) are also pertinent:

‘There is a strong association between secrecy and bad acts. Not that secrecy always entails a bad act, but that bad acts always seek out secrecy… secrecy operates to alienate — to create subjective distance between — the secret keeper and the one from whom the secret is kept. In the public sphere, such alienation between the governed and the governors tends toward hierarchy and away from democracy and citizen sovereignty.’

9.    These important reasons that underlie the principle of the freedom of information are a daily occurrence in every democracy that is based on a culture of rights. For this reason, the Israeli legal system recognized the right of the citizen to receive information from public authorities for many years before the legislator expressly enshrined this right in the Freedom of Information Law (see HCJ 337/66 Estate of Kalman Fital v. Assessing Committee of Holon Municipality [4], at pp. 71-72; AAA 8282/02 HaAretz Newspaper Publishing Ltd v. State of Israel, State Comptroller’s Office [5], at pp. 469-472; AAA 6103/04 State of Israel, Ministry of Transport v. Israeli News Co. Ltd [6], at para. 9. See also, Z. Segal, The Right to Know in Light of the Freedom of Information Law (2000), at pp. 15-64). The explanatory notes to the draft Freedom of Information Law also address the reasons and rationales underlying the principle of the freedom of information, where they say:

‘The right to receive information from public authorities is one of the basic rights in a democracy. It is a basic condition for realizing freedom of expression and for realizing a person’s political and other rights in all spheres of life. Greater access to information will promote the advancement of social values, such as equality, the rule of law and respect for human rights, and it will also allow better public scrutiny of government actions. The right to information has indeed been recognized in case law; but in practice it appears that the public has not been given an adequate amount of access to the information held by the authorities, and it is difficult to eradicate the tendency of the authorities to regard the information as their property rather than property that is held by them in trust for, and on behalf of, the public’ (see Draft Laws 5757, at p. 397).

The Freedom of Information Law and the exemption in s. 9(b)(4) of the law

10. In furtherance of the purposes that the Freedom of Information Law is intended to realize, the law begins, in s. 1, with a general and broad declaration of the existence of the right to receive information from public authorities. It states:

‘Freedom of information

1.  Every Israeli citizen or resident has the right to receive information from a public authority pursuant to the provisions of this law.

In his book The Right to Know in Light of the Freedom of Information Law, supra, Prof. Segal says that this section is ‘the key section on which the whole law is based. It is the “cornerstone” on which the legal right to receive information from a public authority is based’ (at p. 97). Because of the great importance that the legislature attributed to the realization of this right, it even saw fit to require every head of an authority to appoint one its employees as a ‘person responsible for making information available to the public,’ who is in charge of dealing with requests to receive information and of implementing the provisions of the law (s. 3 of the law). But like other constitutional rights, no matter how important they are, this is not an absolute right but a relative right, which in appropriate cases needs to yield to other rights that are also deserving of protection, such as the right to privacy, dignity, property and reputation, and also to important public interests such as state security, foreign relations or the proper functioning of the public authority (see Barak, ‘Freedom of Information and the Court,’ supra, at pp. 99-102). The expression given in the Freedom of Information Law to the need to strike a balance between the freedom of information and other rights and interests was recently discussed by Justice Rivlin in State of Israel, Ministry of Transport v. Israeli News Co. Ltd [6], and I can do no better than to cite his illuminating remarks in that case:

‘… The Freedom of Information Law lists various cases in which the freedom of information yields to other rights and interests. Thus the law provides, in s. 8, a list of cases in which the public authority may reject an application to receive information. It speaks, in principle, of circumstances in which dealing with the application or finding the information involves real difficulties or requires the allocation of unreasonable resources, and also of circumstances in which the information has been published and is available to the public or is in the possession of another public authority. Section 9(a) of the law lists types of information that the authority is prohibited from providing. This concerns information whose disclosure gives rise to a fear of harm to Israel’s foreign relations or the security of the state, security of the public or the safety of an individual, and also information whose disclosure constitutes a violation of privacy or whose disclosure is prohibited under any law. Section 9(b)… provides an additional list of items of information that the authority is not obliged to provide… Sections 8 and 9 do not stand alone… Section 10 provides that when considering a refusal to provide information under ss. 8 and 9, the public authority should consider, inter alia, the interest of the applicant in the information, if he states it in his application, and also the public interest in the disclosure of the information for reasons of maintaining public health or safety, or preserving the environment. Section 11 adds to this that information falling within the scope of s. 9, which can be disclosed without allocating unreasonable resources or placing a significant burden on the activity of the authority, by excluding details, making changes or stipulating conditions with regard to the manner of receiving and using the information, should be provided accordingly. And as if all of this were not enough, s. 17(d) comes and provides that, notwithstanding the provisions of s. 9, the court may order that requested information should be provided, in whole or in part and under such conditions as it shall determine, if in its opinion the public interest in the disclosure of the information takes precedence over and overrides the reason for rejecting the application, provided that disclosure of the information is not prohibited by law’ (ibid. [6], at para. 21; see also HaAretz Newspaper Publishing Ltd v. State of Israel, State Comptroller’s Office [5], at pp. 472-474).

11. In the two appeals before us, the Council bases its arguments on the exemption in s. 9(b)(4) of the Freedom of Information Law, and it argues that the information requested should not be given to the respondents because it is ‘information concerning internal discussions.’ The main issue in this case therefore revolves around the interpretation of this exemption and the scope of its application. Let us therefore take a closer look at s. 9(b)(4) of the law, which we already cited at the beginning of our remarks:

‘Information that should not be provided or that there is no duty to provide

9. …

     (b) A public authority is not obliged to provide information that is one of the following:

            (1) …

         (2) …

 

         (3) …

 

(4) Information concerning internal discussions, memoranda of internal consultations between employees of public authorities, their colleagues or advisers, or of statements made within the framework of an internal inquiry, as well as an opinion, draft, advice or recommendation, which were given for the purpose of making a decision, with the exception of consultations stipulated by law.

As distinct from the absolute exemptions in s. 9(a) of the law, which prohibit the authority from providing information, inter alia, when there is a concern that its disclosure will harm state security, Israel’s foreign relations, public security or the security or safety of an individual, or information whose disclosure constitutes a violation of privacy within the meaning thereof in the Protection of Privacy Law, 5741-1981, the exemptions that are addressed in s. 9(b) of the Freedom of Information Law are more moderate. The subsection does not speak of a prohibition against providing the information, but of information that the authority is not obliged to provide. Therefore, the margin of discretion that the authority should exercise before refusing to provide information of the kinds set out in s. 9(b) of the law is broader. These types of information include, inter alia, information whose disclosure is likely to undermine the proper functioning of the public authority or its ability to discharge its functions (s. 9(b)(1)), information that concerns a policy that is in the planning stages (s. 9(b)(2)) and ‘information concerning internal discussions, memoranda of internal consultations between employees of public authorities, their colleagues or advisers, or of statements made within the framework of an internal inquiry…’ as stated in s. 9(b)(4) of the law, which is the subject of this case.

12. The main reason for justifying the exemption for providing information of the kind mentioned in s. 9(b)(4) lies in the concern regarding the ‘chilling effect’ that is reflected in the reluctance of members and employees of the public authority to hold frank discussions where they are not guaranteed a certain degree of protection for the opinions expressed in the course of making the decisions. Making it possible for the employees of the authority to hold an open and frank dialogue, without any concern that the remarks that are spoken by them in internal discussions or in internal advice will be exposed to the public is therefore intended to protect the quality of the decisions of the public authorities and the effectiveness of the process of making them; this is the main purpose underlying the exemption (see State of Israel, Ministry of Transport v. Israeli News Co. Ltd [6], at para. 28; Segal, The Right to Know in Light of the Freedom of Information Law, supra, at p. 201; and cf. HCJ 2534/97 Yahav v. State Attorney [7] (decision); CA 4999/95 Alberici International v. State of Israel [8], at pp. 45-46; HCJ 243/81 Yaki Yosha Ltd v. Film and Play Review Board [9], at p. 424). This purpose is expressed in the explanatory notes to s. 9(b)(4) of the draft law, which say:

‘In order to discharge its duties, the public authority holds internal discussions or internal investigations and its employees prepare various opinions, which are essential for formulating policy and making decisions. Some of the opinions mature into binding policy and some are shelved. It is an accepted assumption that it is not possible to hold frank discussions in the course of the authority’s activity, unless a certain degree of protection can be guaranteed for the process of formulating the authority’s discretion and the authority’s internal scrutiny process’ (Draft Laws 5757, at p. 404).

For the same reason, many countries around the world have recognized, within the framework of the legislation that guarantees the freedom of information, the need to protect information that relates to consultations, opinions and internal discussions that constitute a part of the decision-making process of public authorities (see D. Banisar, Global Survey: Freedom of Information and Access to Government Record Laws Around the World (Freedominfo.org, 2004)). It seems to me that it is not superfluous to examine the normative arrangements provided in this regard in different legal systems, before we turn to examine the interpretation of the provisions of s. 9(b)(4) of the Freedom of Information Law and the scope of its application.

Comparative law

13. American law distinguishes between the disclosure of information concerning internal discussions and the disclosure of information concerning documents such as internal memoranda and letters that are sent within the authority itself or between one authority and another in the course of the decision-making process. The disclosure of information of the second type is addressed by the Freedom of Information Act, 5 U.S.C. § 552, which in subsection (a) addresses the general duty imposed on authorities to give information to the public with regard to their activity, and it gives details in subsection (b) of the matters that are not subject to this duty. Section 5(b), which is referred to as Exemption 5, speaks of:

‘(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;’

American case law has discussed the main reason for providing Exemption 5, which is similar in essence to the reasons that we have discussed with regard to the exemption set out in s. 9(b)(4) of the Freedom of Information Law:

‘The ultimate goal that Exemption 5 seeks to achieve is to prevent the quality of agency decisionmaking from deteriorating as a result of public exposure’ (Schell v. United States Department of Health & Human Services [24], at p. 939; National Labor Relations Board v. Sears, Roebuck & Co. [25], at p. 151).

The chapter in the Justice Department Guide to the Freedom of Information Act (2004) that deals with Exemption 5[1] gives three secondary reasons for the exemption, which are a part of this main reason:

‘Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action’ (ibid., in the text referred to by footnote 65).

14. In so far as the interpretation of Exemption 5 is concerned, American case law has adopted a restrictive approach, by making its application dependent upon two conditions. First, the document protected by this exemption is required to relate to the stages that precede the making of the decision (i.e., to be ‘predecisional,’ as opposed to ‘postdecisional’). The reason for this condition is that the public interest in information that concerns binding decisions is more significant and also there is no concern that disclosures of discussions that took place after the decision was formulated will affect the quality of the decision that has already been made (see National Labor Relations Board v. Sears, Roebuck & Co. [25], at pp. 151-153). Second, the document needs to include an opinion or recommendation that constitutes an integral part of the deliberative process, and the exemption does not apply to information that is merely factual (see National Wildlife Federation v. United States Forest Service [26], at p. 1117; Justice Department Guide to the Freedom of Information Act (2004), in the text referred to by footnotes 73-76).

15. As I have already said, internal discussions of public authorities do not fall within the scope of Exemption 5 of the Freedom of Information Act and the premise with regard to these discussions is that they are available for public inspection, pursuant to the Open Meetings Act, 5 U.S.C. § 552b, which is referred to as the Government in the Sunshine Act, apparently in reference to the immortal words of Justice Brandeis that ‘sunlight is said to be the best of disinfectants’ (L. Brandeis, Other People’s Money, and How the Bankers Use It (1914)) (with regard to the relationship between the laws, see M.P. Cox, ‘A Walk Through Section 552 of the Administrative Procedure Act: The Freedom of Information Act; the Privacy Act; and the Government in the Sunshine Act,’ 46 U. Cin. L. Rev. (1977) 969).

Subsection (b) of the Open Meetings Act provides in this regard that:

‘… Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation.’

The principle concerning the publicity of the meetings of the authorities is based on the recognition that the public should be given as much information as possible with regard to the decision-making process and it should be allowed to examine this process without any intermediaries (see B.S. Baird, ‘The Government in the Sunshine Act — An Overview,’ 1977 Duke L. J. (1977) 565, at p. 566). In a case where the discussions took place in camera, the authority has a general duty to give the public the minutes that document them (see subsection (f)(2) of the Open Meetings Act), with certain exemptions that are set out in subsection (c), to which subsection (k) of the Open Meetings Act refers. These exemptions address exceptional cases in which the authority is entitled to hold meetings in camera and to refuse to provide minutes of the discussions, and they are similar to those provided in s. 9(a) and ss. 9(b)(1), (5), (6) and (8) of Israel’s Freedom of Information Law. In addition, subsection (c) of the Open Meetings Act includes specific exemptions that concern financial institutions (see paragraph (8) and subparagraph (9)(A) of subsection (c)) and an exemption that concerns legal proceedings in which the authority is involved (see paragraph (10) of subsection (c)). Subsection (d) of the Open Meetings Act provides a detailed and strict mechanism for the manner in which the authority should act with regard to voting and providing a public explanation for a decision to close a meeting and not to disclose the content of the discussions that it is holding.

16. In England, the Freedom of Information Act 2000 came into effect in January 2005. Section 1 of the law, like the Freedom of Information Law in Israel, gives rise to a general right of access to information held by public authorities, and the other sections of the Act give details of specific exemptions, including the exemption concerning information regarding government policy, which is provided in s. 35 of the Act, and the general exemptions provided in s. 36 of the Act concerning access to information held by a public authority that is not exempt by virtue of s. 35. The following is the main provision of the aforesaid s. 36:

‘36. (1) …

     (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act —

          (a) …

          (b) would, or would be likely to, inhibit —

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation, or

          (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

     …’

In their book, The Law of Freedom of Information, Macdonald and Jones say that the power to refuse a request for information under s. 36 of the Act is given to the qualified person in each authority, who is usually the most senior person in that authority, as defined in s. 36(5), on the assumption that giving the power solely to this person will serve as a restraint on the use made of the exemption and will prevent it from being used excessively (see J. Macdonald and C.H. Jones, The Law of Freedom of Information (2003), at p. 199).

17. In Australia, s. 36 of the Freedom of Information Act of 1982 provides that the authority does not have a duty to disclose information concerning an opinion, advice, recommendation or consultation before making a decision, if giving the information is contrary to the public interest. In the words of s. 36(1):

‘Internal working documents

36. (1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

     (b) would be contrary to the public interest.

…’

Australian case law addresses the cumulative condition in s. 36(1)(b), according to which it must be shown that providing the information is contrary to the public interest. It holds:

‘That a document is an internal working document does not of itself make the document an exempt document under cl. 36. To justify refusal of access to a document under this clause, the agency concerned must also form a view that it would be contrary to the public interest to give access to the document and specify the ground of public interest involved… In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other’ (Harris v. Australian Broadcasting Corporation [27]; Re James and Others and Australian National University [28], at paras. 87-89; R. Tomasic and D. Fleming, Australian Administrative Law (1991), at pp. 436-437).

It has also been held that for information to be exempt, the authority needs to show that in the circumstances of the specific case all of the considerations taken into account justify the information being exempt, and it is insufficient merely to raise a general argument to this effect (see Re McKinnon and Secretary, Department of the Treasury [29], at paras. 27 and 30; Re Sunderland and Department of Defence [30]; Tomasic and Fleming, Australian Administrative Law, supra, at pp. 439-440). In its arguments, the Council referred us to the Australian case of Re Burns and Australian National University (No 2) [31], and it sought to derive from it that notwithstanding the general position in Australian case law that tends not to give decisive weight to the concern that the frankness of discussions will be affected, the court held in that case that this interest prevailed. This is of no significance. As we have seen, the public interest is examined on its merits on a case by case basis, and in Re Burns and Australian National University (No 2) [31] the Australian court based its conclusion on the circumstances of the case before it and on the special characteristics of the University and its discussions, which were the subject of the dispute in that case (see ibid. [31], at para. 41).

18. In Canada, s. 21 of the Access to Information Act of 1982 concerns the exemption given to information that constitutes a stage in the decision-making process of government institutions. It states:

‘21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains

(a) advice or recommendations developed by or for a government institution or a minister of the Crown,

(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,

…

if the record came into existence less than twenty years prior to the request.

(2) Subsection (1) does not apply in respect of a record that contains

(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or

(b) a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.’

According to Canadian case law, the burden of proving that the head of a government institution has not exercised his discretion lawfully rests with the party applying for the information, but the head of the institution has the initial duty of giving explanations for his refusal to provide the information by virtue of the duty of fairness imposed on him under the rules of administrative law and in order that the court can examine the reasonableness of the decision under those rules (see Canada Inc. v. Canada (Minister of Industry) [32], at paras. 99-102).

19. Article 255 of the Treaty Establishing the European Community establishes the general right to receive information from the institutions of the European Union as follows:

‘1. Any citizen of the Union… shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.’

Under this article, the European Parliament and the Council of the European Union adopted in 2001 regulation no. 1049/2001 (Regulation (EC) no. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents). The regulation is intended to realize the public’s right of access to documents and to establish rules that will ensure that it is realized without difficulty and that there is a proper administrative practice in this regard (see para. 1 of the regulation). The exceptions to the general right provided in art. 2 of the regulation are set out in art. 4 thereof, and the exception that concerns our case is the exemption set out in art. 4(3), which states:

‘Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.’

The test adopted in the European Union, as can be seen from art. 4(3) that is cited above, is the ‘seriously undermine’ test; only when this is satisfied will it be possible to exempt the information, unless there is an overriding public interest in the disclosure.

Interim Summary

20. We have seen from comparative law that the rationale underlying the exemptions such as the one in s. 9(b)(4) of the Freedom of Information Law is based on a recognition, both in Israel and in other countries around the world, that the disclosure of information concerning internal discussions and memoranda of internal consultations and opinions that are given for the purpose of making decisions may harm the decision-making process of the authority and reduce its quality. But the need to protect the decision-making process and its quality is not the whole picture. The Administrative Appeals Tribunal in Australia discussed the danger of placing too much weight on the pressures that always accompany the implementation of the duties arising from the principle of the freedom of information in Re James and Others and Australian National University [28], at para. 96, where the tribunal said:

‘The pressures flowing from greater accountability are, in my view, an inescapable concomitant of more open government. To react too timorously to every anticipated situation of pressure could well negate the principles underlying the Freedom of Information Act.’

It follows that, because of the general public interest that we discussed above, the authority may admittedly refuse to provide information concerning internal discussions, but before it does so it should take into account all the considerations that are relevant to the case, and it needs to find in the specific circumstances of each case the correct balance between the public interest in exempting the information and the public and private interest, in so far as there is one, in disclosing the information. As we said above, the need to strike a balance that takes into account the specific facts of each case and the fact that the general interest alone should not serve as a ground for refusing to disclose information was discussed by the Administrative Appeals Tribunal of Australia in Re Sunderland and Department of Defence [30]. It said:

‘A claim for immunity made for the document before us will not succeed if all that can be said on the public interest issue is that either its release will inhibit the candour and frankness of members of the Committee in future or that it is one of a class of documents of such a generic nature that none of the elements of that class, for that reason, should be made public. We therefore come to look at the particular document in question and ask ourselves whether its disclosure would be contrary to the public interest’ (see also Fleming, Australian Administrative Law, supra, at pp. 439-440).

In other words, the authority cannot refuse to provide the information that is requested by relying solely on the general public interest in maintaining the frankness and effectiveness of the discussions. Such a refusal de facto makes the exemptions such as the one in s. 9(b)(4) of the Freedom of Information Law into absolute exemptions that do not allow the exercising of discretion in any specific case, and this is inconsistent with the language of the statutory arrangements that we have reviewed. More important still, this is not consistent with the general purpose underlying these arrangements, which seek to realize the principle of the freedom of information in so far as public authorities are concerned.

The exemption in s. 9(b)(4) of the Freedom of Information Law and the discretion of the authority

21. The conclusion that arises from the interim summary is pertinent and correct with regard to the manner in which the exemption set out in s. 9(b)(4) of the Israeli Freedom of Information Law. This is because of the language of the section, which invites the exercising of discretion, in view of the legislative environment surrounding this section and in view of the general purpose of the Freedom of Information Law, as defined in s. 1 of the law (see A. Barak, Legal Interpretation (vol. 2, Statutory Interpretation, 1993), at pp. 306-308). The immediate legislative environment that is relevant to this issue is the provisions of ss. 10 and 11 of the Freedom of Information Law. Section 10 of the law provides the fundamental assumption that the authority exercises discretion in such a case and it sets out guidelines with regard to the criteria that the authority should take into account. The section provides:

‘Consider-ations of the public authority

10. When it is considering a refusal to provide information under this law, under the provisions of sections 8 and 9, the public authority should take account, inter alia, of the applicant’s interest in the information, if he stated this in his application, and also of the public interest in the disclosure of the information for reasons of maintaining public health or security, or protecting the environment.’

The considerations mentioned in this section are not the only considerations that should guide the authority in exercising its power, but the fact that they are expressly mentioned in this section amounts to a statutory indication that is intended to direct the public authority that it should give proper weight to these considerations before it decides to refuse to provide information (see Segal, The Right to Know in Light of the Freedom of Information Law, supra, at p. 221). Thus, for example, if the person applying for the information indicates his private interest in the requested information, this is a significant ground for tipping the scales towards providing the information, even though the right to receive information under the law is not contingent ab initio upon giving reasons for the application and the applicant is not obliged to give the reason for his application (s. 7(a) of the law). An important criterion with regard to the discretion that the authority should exercise in this regard is provided in s. 11 of the law. This section allows the authority to integrate principles of proportionality in exercising the discretion and in the balance that it strikes, by stating that it may provide partial information and also make the providing of the information dependent upon conditions (with regard to providing partial information as a proper balancing point in the circumstances of the case, see and cf. CA 7759/01 HaAretz Newspaper Publishing Ltd v. Ministry of Justice, State of Israel [10], at para. 10). With regard to the principle of proportionality, which is reflected in s. 11 of the Freedom of Information Law, see Segal, The Right to Know in Light of the Freedom of Information Law, supra, at p. 225, and with regard to the manner of exercising the discretion in so far as concerns providing information that is subject to the exemptions stated in ss. 8 and 9 of the law, see State of Israel, Ministry of Transport v. Israeli News Co. Ltd [6], at para. 31). In the language of the section:

‘Providing partial information and providing information conditionally

11. If the requested information is information that the public authority is entitled or obliged not to provide as stated in section 9, and it is possible to disclose the information, without an unreasonable allocation of resources or a significant burden to the activities of the authority, by omitting details, by making changes or by imposing conditions on the manner of receiving and using the information, the authority shall provide the information with omissions, changes or with the required conditions, as applicable; if omissions or changes are made as aforesaid, the authority shall state this, unless this fact should not be disclosed for the reasons set out in section 9(a)(1).’

It should be emphasized that when I say that the authority should take into account, when making a decision to refuse information, the circumstances and the facts of the specific case, I do not means that the authority has a burden to show that ‘special harm’ will or is likely to be caused as a result of disclosing the information. This approach was rejected by this court in AAA 1825/02 State of Israel, Ministry of Health v. Retirement Homes Association [11], in which Justice Naor said:

‘The trial court went a step further and held, as cited, that if there is no “special harm” to the authority, the information should be provided, even in a case that falls within the scope of s. 9(b) of the law. My opinion is that the “special harm” formula should not be introduced into the required balance. Indeed, “formulae” are relatively simple to apply, but their weakness lies in their rigidity, and the case before us, in my opinion, proves this… Ultimately, the result of this formula is that if the person applying for the information shows that he has a personal interest in the information, and the authority does not show “special harm,” the information should, in the opinion of the trial court, be disclosed. The “special harm” formula is not, in my opinion, a balancing formula. The “special harm” formula does not appear in the law, it is not required by the law, and in my opinion it has too restrictive an effect on the considerations of anyone who needs to strike a balance between all the interests — the authority within the framework of s. 10 and the court within the framework of s. 17(d)’ (ibid. [11]), at para. 20. Cf. Macdonald and Jones, The Law of Freedom of Information, supra, at p. 182; art. 4(3) of Regulation no. 1049/2001 of the European Parliament and Council, supra).

Thus we see that we are dealing with a flexible balancing formula that should be constructed and implemented while taking into account the facts and circumstances of the individual case.

22. The District Court, as well as the parties in their arguments before us, addressed in this context the question of the burden of proof. The respondents asked us to adopt the ruling of the District Court that the authority has the burden of showing a special reason for a refusal, whereas the Council argued that when the exemption provided in the law is satisfied, the applicant should show a special reason why, despite the exemption, the authority should provide the information. In my opinion, the use of the terminology of burdens of proof, which is borrowed from the laws of evidence, is out of place in this context. A public authority that is requested to provide information concerning one of the matters that falls within the scope of any of the exemptions in ss. 8 or 9 of the Freedom of Information Law, should deal with this application in accordance with the rules of administrative law that govern it in all of its actions. One of the important rules in this regard provides that a public authority should exercise the discretion given to it in a reasonable manner. Reasonableness, as a normative concept, means —

‘… identifying the considerations that should be taken into account, giving weight to the various considerations and striking a proper balance between them at the point where they conflict (see HCJ 14/86 Laor v. Film and Play Review Board [12]). The relevant considerations are derived from the purpose of the legislation. They include the particular purposes that the legislation is intended to realize and the basic principles of the legal system, which serve as a “normative umbrella” and a general purpose for all legislation (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [13]; CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [14]). This purpose also determines the internal weight that should be given to the various considerations. A reasonable decision is a decision that strikes a balance between the various considerations in accordance with the weight that is derived from the purpose of the legislation. Indeed, for a decision to be reasonable it is insufficient that relevant considerations are taken into account. The decision is reasonable only if the internal weight given to the relevant considerations is proper’ (HCJ 5688/92 Wechselbaum v. Minister of Defence [15], at p. 824. See also HCJ 935/89 Ganor v. Attorney-General [16], at pp. 513-514; Segal, The Right to Know in Light of the Freedom of Information Law, supra, at p. 202).

In our case, in order that a decision to refuse to provide information under ss. 8 and 9 of the law will satisfy the test of reasonableness, the authority should identify and examine all of the considerations that are relevant to the case and strike a balance between them, inter alia, by availing itself of the tools put at its disposal for this purpose in ss. 10 and 11 of the Freedom of Information Law.

23. An additional duty that is imposed on the authority under administrative law, in so far as dealing with an application to provide information under the Freedom of Information Law is concerned, is the duty to give reasons for the refusal to provide all or some of the requested information in accordance with the authority’s decision. The duty to give reasons allays the concern that decisions may be made arbitrarily or erroneously and it contributes towards building confidence in the relationship between the authority and the citizen in a democracy (regarding the importance of the duty to give reasons and its being one of the basic duties imposed on an administrative authority, see I. Zamir, Administrative Authority (vol. 2, 1996), at pp. 897-898). Indeed, a public authority may not simply give a laconic refusal to an application to provide information. It is obliged to give details of its reasons for the refusal, in order to allow the person applying for the information to be aware of the reasons for the refusal and to consider his position. Details of the reasons for the refusal also allow the court to know the considerations that the authority took into account and the internal balance that it made between them, when it scrutinizes the decision.

In so far as judicial scrutiny of decisions of the authority under the Freedom of Information Law is concerned, the duty to give reasons has special importance because the judicial involvement in these decisions is carried out on two levels: first, the court examines whether a decision of the authority to refuse to provide information under ss. 8 or 9 of the law satisfies the criteria required by administrative law, i.e., whether the process in which it was made was proper and fair, and whether the decision is reasonable and proportionate in the circumstances of the case. But even if the refusal decision satisfies this first test, the court still has a special jurisdiction under s. 17(d) of the Freedom of Information Law, which goes beyond the usual scope of judicial scrutiny of administrative acts (for the limited scope of this scrutiny in general, see HCJ 2324/91 Association for Civil Rights in Israel v. National Planning and Building Council [17], at p. 688). Section 17(d) of the Freedom of Information Law provides the following:

‘Petition to the court

17. …

(d) Notwithstanding the provisions of section 9, the court may order requested information to be provided, in whole or in part and on conditions that it shall determine, if in its opinion the public interest in the disclosure of the information takes precedence over and overrides the reason for rejecting the application, provided that the disclosure of the information is not prohibited under any law.’

In practice, s. 17(d) allows the court to substitute its own discretion for the discretion of the authority ‘notwithstanding the provisions of section 9,’ and to order the disclosure of the information even is it finds no defect whatsoever in the discretion of the authority according to the tests of administrative law (cf. s. 44(a) of the Evidence Ordinance [New Version], 5731-1971, with regard to the disclosure of privileged evidence). This provision in s. 17(d) of the Freedom of Information Law highlights and emphasizes the importance of the principle of freedom of information that the law is intended to realize. In State of Israel, Ministry of Health v. Retirement Homes Association [11] the court left undecided the question of the character and nature of a hearing under s. 17(d) of the Freedom of Information Law. It did not decide the question whether the hearing is held de novo, so that the court does not attribute special importance to the decision of the public authority with regard to providing the information (see Segal, The Right to Know in Light of the Freedom of Information Law, supra, at p. 252). As we shall see below, in our case there is also no need to make a firm decision in this regard, since where the authority did not exercise reasonable discretion under s. 9 of the Freedom of Information Law, the court does not need to resort to exercising the special jurisdiction given to it in s. 17(d) of the law, and it can find a basis for setting aside the refusal decision and the obligation to provide the information, in whole or in part and on such conditions as it sees fit, on the general principles of administrative law.

From general principles to the specific case

24. The relevant authority in both of the appeals before us is the Council for Higher Education. This authority satisfies the definition of the term ‘public authority’ in s. 2 of the Freedom of Information Law, since it is a ‘statutory corporation’ (see subsection 8 of the aforesaid definition), and it is the national institution for matters of higher education in Israel that is the authority on all matters concerning institutes of higher education and the degrees given by them. The Council numbers twenty-five members, who are appointed by the president of the state. Fair representation is given on the Council to all the types of institutions that are recognized as institutes of higher education in Israel, and two thirds of its members are ‘persons with standing in the field of higher education, who were recommended by the Minister of Education and Culture, after consultation with the recognized institutes of higher education’ (see ss. 2 and 4A of the Council of Higher Education Law). The Council has control of the regular budgets of the institutes of higher education in Israel and of their development budgets, through the Planning and Budgeting Committee, which was given, by virtue of a government decision, the sole power to distribute budgets to institutes of higher education. We can therefore summarize by saying that the Council, as the public authority that is responsible for dealing with all issues concerning the institutes of higher education in Israel, is without doubt one of the most important and influential authorities in Israel in this field, and therefore it arouses great public interest.

The nature and characteristics of the public authority that receives an application for disclosure of information concerning its internal discussions — which in this case is the Council for Higher Education — are in my opinion of significant weight among the considerations that should be taken into account when dealing with the application to provide the information. It may be assumed that there is a direct correlation between the importance and degree of influence of the public authority on public affairs and the strength of the public interest in the disclosure of the information concerning its actions and decisions. Moreover, as we have already said, the authority should consider the public importance of the specific matter that was addressed in the internal discussions that are the subject of the request for information, and here too it may be assumed that there is a direct correlation between the degree of public importance of the issue that was discussed and the strength of the public interest in the disclosure of the information in this regard. Against this set of considerations that all operate in favour of providing the information, to which should also be added the personal interest that the party requesting the information has in receiving it, the authority should consider the strength of the general interest of exempting the information in order to protect the effectiveness of the decision-making process at the authority, and it should also consider additional interests that may also justify, in the specific case, a refusal to provide the information that was requested, in whole or in part. At all times the authority should be mindful of the general purpose for which the Freedom of Information Law was intended — realizing the right of every citizen and resident to receive information from public authorities, as stated in s. 1 of the law.

25. In the cases before us, the Council refused to give the Shachar organization minutes from the discussions that were held with regard to it in the plenum of the Council and in the extensions committee, as well as the licensing unit’s report that was submitted to the extensions committee with regard to it. Likewise, the Council refused to give the HaAretz newspaper the minutes of its meetings and the meetings of the Planning and Budgeting Committee in the three years that preceded the request for the information. In both cases, the District Court was of the opinion that the refusal was unlawful and it ordered the information to be provided on the conditions that it outlined.

From the position that the Council presented in the District Court and in the appeals before us, it appears that in its opinion the fact that we are concerned with information regarding its internal discussions is sufficient for it to be able to refuse to provide it, by virtue of the exemption provided in s. 9(b)(4) of the Freedom of Information Law. In view of this fundamental position, the Council did not consider in either of the two cases all of the considerations that it ought to have considered before it refused to provide the information that was requested and it therefore did not determine the proper balancing point in each of them. Indeed, the Council for Higher Education sought to rely absolutely on the exemption in s. 9(b)(4) of the law, and therefore it did not take into account its pivotal national status with regard to all matters of higher education in Israel, the budgetary power that it controls, the public importance of its discussions and decisions on a general level and the specific degree of importance of the discussions concerning which the information was requested. In addition, the Council did not consider the harm that would be caused to the personal interest of the Shachar organization if the information requested by it was not disclosed, and the harm that would be caused to the public interest as a result of the non-disclosure of the information that was requested by the respondents in the HaAretz appeal, in view of the fact that they are representatives of the media who serve as an important and effective conduit through which the public exercises its right to know (on journalists as the antenna of the individual and the public… who march in the vanguard of the people,’ see HaAretz Newspaper Publishing Ltd v. State of Israel, State Comptroller’s Office [5], at p. 479; see also Segal, The Right to Know in Light of the Freedom of Information Law, supra, at pp. 222-223). Moreover, all of these considerations that the Council ought to have taken into account should have been reflected in reasoned refusal decisions, as required by law.

The decisions of the Council do not satisfy these requirements and the approach that it adopted with regard to the refusal decisions in both cases before us undermines the reasonableness of its decisions and justifies their being set aside. Admittedly the general concern underlying the exemption provided in s. 9(b)(4) of the Freedom of Information Law that the frankness and effectiveness of the internal discussions taking place in public authorities will be impaired also applies to the Council. At the same time, this general concern on its own cannot be decisive for every application to disclose information concerning internal discussions. As we have already said, the fact that holders of public office, including the members of the Council, are required to contend with the tension inherent in the duty to act transparently and to disclose to the public the information concerning their activity is unavoidable and required by the public character of the Council’s activity. Thus we see that someone who accepts public office, because he serves the public and owes a duty of trust to the public, should take into account ab initio that his actions within the framework of this office will be to a large extent ‘in the public eye’ (see and cf. CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [18], at p. 799). He should take into account that disclosure of the information is the rule, which derives from the principle of transparency and the right of the public to know, whereas non-disclosure of the information is the exception, which will be possible only when one of the exemptions provided in the law in this regard is satisfied and only after the authority has exercised discretion and adopted a reasonable decision not to disclose the information.

26. In the HaAretz appeal the Council also raised an alternative argument concerning the conditions stipulated by the court with regard to the information that it ordered the Council to provide. In this context, the Council argued, inter alia, that these conditions, in so far as they concerned a third party that was likely to be harmed by the disclosure of the information, imposed upon it a heavy and unreasonable burden of making enquiries with dozens of third parties under the mechanism provided in this regard in s. 13 of the Freedom of Information Law. This argument was raised by the Council without a proper basis and it is unfounded, and this is sufficient reason to reject it (on the duty of giving details that is required of an authority that argues that providing the information involves an unreasonable investment of resources, see H. Sommer, ‘The Freedom of Information Law: Law and Reality,’ 8 HaMishpat 435 (2003), at pp. 450-452; see also Segal, The Right to Know in Light of the Freedom of Information Law, supra, at pp. 165-166). Moreover, the respondents undertook to pay all the expenses incurred by the Council (see para. 52 of their petition).

27. In closing, we should draw attention to an additional argument that was raised by the Council, according to which requiring the authorities to provide minutes of their discussions is likely to lead to them refraining from keeping full minutes; instead, they will prefer to record the main points and decisions only. It is to be hoped that this fear will not be realized, and to the extent that it is realized it will be necessary to examine each case on its merits, in view of the duty imposed on a public authority in general to keep minutes that faithfully reflect its discussions (see Ilan v. Tel-Aviv-Jaffa Municipality [3], at para. 18, and cf. HCJ 954/97 Cohen v. President of Israel Bar Association [19], at pp. 519-528). A similar argument was made by the authority in State of Israel, Ministry of Transport v. Israeli News Co. Ltd [6], and the remarks uttered by Justice Rivlin in that case, with regard to the cooperation of civil servants with the internal auditor, are also pertinent and apt, mutatis mutandis, in our case:

‘It is the duty of civil servants to cooperate with the internal auditor so that he can carry out his duties. These duties are not subject to the good will and sympathetic disposition of the persons involved… all of the parties concerned are presumed to carry out their duties, and it should not be assumed ab initio that they will be derelict in discharging their duties merely because of the likelihood that reports of public importance will be brought to the attention of the public’ (ibid. [6], at para. 24).

28. In summary, the decisions of the Council in which it refused the requests for information in the two cases before us do not satisfy the test of administrative reasonableness and therefore they cannot stand. Does it follow from this conclusion that the consideration of the requests should be returned to the Council so that it can reconsider them in accordance with the rules relevant to the issue? The Council did not raise this possibility in its arguments and it seems to me that in the circumstances that have been created there is no need for this, since in the course of the comprehensive hearings that took place in the trial court in each of these proceedings the whole question was laid before the court and the court examined the arguments of the parties and reached operative results that strike a proper balance between all the relevant considerations. In the HaAretz case the court even provided a proportionate and detailed mechanism that gives the authority a certain margin of discretion even at this stage with regard to the conditions for disclosing the requested information. I am therefore of the opinion that we may content ourselves with adopting the operative conclusions reached by the trial court in the two judgments that are the subject of the appeals before us. This conclusion is made even more necessary in view of the time that has passed since the requests were originally made.

Conclusion

29. I shall therefore propose to my colleagues that we deny the appeals and find the Council liable to pay legal fees in a sum of NIS 20,000 to the respondent in the Shachar appeal, and an additional amount of NIS 20,000 to the respondents in the HaAretz appeal.

 

 

President A. Barak

I agree with the opinion of my colleague, Justice E. Hayut.

 

 

Justice D. Beinisch

I agree.

 

 

Justice E. Rivlin

I agree with the comprehensive and wide-ranging opinion of my colleague Justice E. Hayut.

 

 

Justice M. Naor

I agree with the opinion of my colleague, Justice E. Hayut.

 

 

Justice S. Joubran

I agree with the opinion of my colleague, Justice E. Hayut.

 

 

Vice-President M. Cheshin

I agree with the comprehensive and profound opinion of my colleague, Justice Hayut. I would, however, like to add two comments to her remarks.

2.    Section 1 of the Freedom of Information Law, 5758-1998, tells us the following:

‘Freedom of information

1.  Every Israeli citizen or resident has the right to receive information from a public authority pursuant to the provisions of this law.

A text cannot be interpreted contrary to its simple meaning, and what the law says is, in my opinion, simple and clear: every Israeli citizen or resident has a right to receive information from a public authority ‘pursuant to the provisions of this law.’ A citizen and a resident do not have a right to receive information from the public authority in every case; the right is ‘pursuant to the provisions of this law.’ Before we can know the essence and the scope of the right of the citizen and the resident to receive information from the public authority, we should first direct our steps along the paths of the law — both the visible paths and the hidden paths — since only in this way shall we know if in a specific case the citizen and the resident do indeed have a right to receive information from the public authority. I would therefore not classify s. 1 as a key provision, and certainly not as the ‘cornerstone’ on which the law is built. The law does not depend on s. 1; on the contrary, s. 1 is dependent on the law. These remarks are not intended to detract from the value of s. 1 as a provision of statute that contains a normative declaration — for the first time in Israeli legislation — of the existence of a right to receive information from a public authority. But we cannot ignore the phrase at the end of s. 1, ‘pursuant to the provisions of this law.’ Section 1 says what it says, and no more; let us read into s. 1 what it says, and not read into it what it does not say.

3.    The second comment is that this is the first time that the Supreme Court is interpreting the provisions of s. 9(b)(4) of the law in an authoritative and detailed manner, and the appellant has learned for the first time — from our judgment that is before us — that it erred in interpreting the law. In such circumstances, I at first thought that we ought to return the case to the trial court, and thereby make it possible for the appellant to raise arguments, and perhaps even to bring evidence, to justify its position in the spirit of our remarks in this judgment. This has always been the case law rule, and I thought we should follow it. See, for example, HCJ 131/65 Savitzky v. Minister of Finance [20], at p. 378; HCJ 557/75 East Lod Buildings (1953) Ltd v. Lod Local Planning and Building Committee [21], at p. 20; HCJ 162/78 Federation Health Fund v. Appeals Board [22], at p. 452. But I have been persuaded that all the arguments that could have been raised were brought before the trial court, and in these circumstances — including the period of time that the matter has been before the courts — I have changed my mind and agreed that we should decide the appeals instead of returning them to the trial court. See and cf. HCJ 62/75 9 Hibbat Zion Street Ramat Gan Co. Ltd v. Ramat Gan Local Planning and Building Committee [23], at p. 600.

 

 

Appeal denied.

19 Tevet 5766.

19 January 2006.

 

[1]    Published at http://www.usdoj.gov/oip/exemption5.htm.

 

 

 

President D. Beinisch

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

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

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

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

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

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

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

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

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

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

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

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

Petition denied.

9 Iyyar 5768.

14 May 2008.