Discretion

Basic Law: Human Dignity and Liberty

Conscientious Objection

Equality Before the Law

Abstract:

We are concerned with petitions for the revocation of Section 61(2)(d) of the Arrangements Law (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009, as it is unconstitutional, which included Amendment no. 113 to the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter: the “Amendment to the Law”) that ordered, inter alia, the reduction of the child allowances paid for children who have not received the vaccines required based on their age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health. The vaccination program includes a vaccination by the name of MMRV, which is a “quadrivalent” vaccine against four diseases: measles, mumps, rubella and chicken pox. The vaccination is given to infants at the age of one year, and the program will apply to infants born starting January 1, 2012, such that the first reduction of allowances will be made no earlier than July 1, 2013.

The HCJ (per the opinion of Justice Arbel, Justices Hayut and Barak Erez concurring) denied the petitions and held:

Justice Arbel held that there is no room for judicial intervention in the legislative process for the Amendment. Justice Arbel reviewed the nature of the child allowance arrangement and its purpose, the approach of the Ministry of Health and medical science towards vaccinations generally, and the quadrivalent vaccination specifically. Justice Arbel believed that the starting point should be that the legislator, in setting child allowances, had in mind the welfare and best interests of the children. Justice Arbel stated that in the framework of the constitutionality of the Amendment, the question of whether constitutional rights established in Basic Law: Human Dignity and Liberty (hereinafter: the “Basic Law”) are violated will be examined, and if the answer is affirmative, it will be examined whether the conditions of the limitation clause of the Basic Law are satisfied. If one of the conditions is not satisfied, the remedy for the unlawful violation will be discussed.

Justice Arbel examined whether the Amendment violated rights enshrined in the Basic Law, i.e. the right to a dignified life or the right to social security, the right to autonomy and the right of equality, and held that the Amendment does not violate the right to a dignified life and does not violate the constitutional right to autonomy or to parental autonomy, but does violate the right of equality. It is noted that in this context, Justice Arbel believed that the group of equals included the parents insured through the National Insurance Law. However, Justice Arbel held that the violation satisfies all four conditions of the limitation clause of the Basic Law: the violation of the human right was made in or by a law or by virtue of explicit authorization therein; the violating law befits the values of the State of Israel; the violating law is intended for a proper purpose; the law violates the right to an extent no greater than required. Justice Arbel held that this violation satisfies all of the conditions of the limitation clause in a manner that strikes a proper balance with other interests and rights, and hence the Amendment is proportionate and there is no room to intervene therein.

Justice Barak-Erez also found that the Amendment to the Law violates the right of equality, holding that the petitions should be denied because the violation satisfies the conditions of the limitation clause. Justice Hayut believed that the starting point according to which the question of discrimination should be examined is that the right to the child allowances is a right of the parents, and that this is the relevant group of equals. Unlike Justices Arbel and Barak-Erez, Justice Hayut found that the distinction made by the Amendment to the Law between parents who have vaccinated their children and parents who have refrained from doing so, for the purpose of deducting a fixed amount from the child allowances, does not violate the constitutional right of equality of the parents who chose not to vaccinate their children, and therefore in her opinion too, the petitions should be denied.

Voting Justices:

Arbel, Edna

Primary Author

majority opinion

Barak-Erez, Daphne

Author

concurrence

Hayut, Esther

Author

concurrence

Full text of the opinion:

In the Supreme Court Sitting as the High Court of Justice

HCJ 7245/10

HCJ 8357/10

HCJ 908/11

Before: Her Honor Justice E. Arbel

Her Honor Justice E. Hayut

Her Honor Justice D. Barak-Erez

The Petitioner in

HCJ 7245/10: Adalah – The Legal Center for Arab Minority Rights in Israel

The Respondents: 1. The Ministry of Social Affairs

2. The National Insurance Institute

3. The Knesset

The Petitioner in The Israel National Council for the Child

HCJ 8357/10:

The Respondents: 1. The Israeli Government

2. The Minister of Finance

3. The Attorney General

4. The Minister of Health

5. The Israeli Knesset

6. The National Insurance Institute

The Petitioners in 1. The Association for Information on Vaccines

HCJ 908/11: 2. Binyamin Brotski

3. Matan Koren

4. Netta Dror

5. Itay Hadar

6. Lilach Rochel

The Respondents: 1. The National Insurance Institute

2. Director General, Ministry of Health

3. The Speaker of the Knesset

Petitions for an order nisi and an interim order

Date of session: Tammuz 12, 5772 (July 2, 2012)

On behalf of the Petitioner

in HCJ 7245/10: Adv. Z. Zausan, Adv. H. Jabarin

On behalf of the Petitioners

in HCJ 8357/10: Adv. V. Windman, Adv. C. Pollack-Cohen

On behalf of the Petitioners

in HCJ 908/11: Adv. A. Naveh

On behalf of Respondents

1-2 in HCJ 7245/10 and

Respondents 1-4 and 6

in HCJ 8357/10 and the

Respondents in HCJ 908/11: Adv. A. Keidar, Adv. M. Freeman

On behalf of Respondent 3

in HCJ 7245/10 and

Respondent 5 in HCJ

8357/10: Adv. Dr. G. Bligh

Judgment

Justice E. Arbel:

The petitions before us concern the reduction of child allowance for a parent whose children have not received the required vaccines announced by the Director General of the Ministry of Health. In the petitions, the petitioners demand the revocation of Section 61(2)(d) of the Arrangements Law (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009 (hereinafter, the “Arrangements Law” or the “Law”), on the grounds that it is unconstitutional.

The Arrangements Law

1.The Arrangements Law, which was enacted in 2009, included Amendment no. 113 (hereinafter, the “Amendment”) to the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter, the “National Insurance Law”). The Amendment mainly concerns the gradual increase of the child allowances paid for the second, third and fourth child in a family unit. Concurrently, the Amendment orders the reduction of the child allowances paid for children who have not received the required vaccines based on their age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health. The main part of this arrangement is currently set out in Section 68(d) of the National Insurance Law:

(d)(1) If the child meets the provisions of Paragraph (2), the monthly child allowance paid for him will be reduced by the sum of NIS 100 (in this section – the “Sum of the Reduction”), provided that notice was given as stated in Subsection (e) and the 14-day period has passed as stated in the said subsection from the date of service of the notice according to the provisions of Subsection (h)(2); the reduction will begin on the 1st of the month following delivery of the notice to the Institute as stated in Paragraph (2);

(2) The Ministry of Health shall notify the Institute that six months have passed from the date on which the child was required to receive the vaccines based on his age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health; such notice shall be sent to the Institute no later than seven days after the date on which six months have passed as aforesaid;

(3) A program as stated in Paragraph (2) will be published in the Israel Official Gazette and shall include provisions regarding the type of vaccine, the vaccination schedule, additional dates on which a vaccine that was not administered on the required date may be supplemented, and the maximum age at which each vaccine may be administered (in this section, the “Vaccination Program”).

It should be noted that additional sections in this arrangement include: instructions regarding the notice that must be sent to parents whose children have not received vaccines as aforesaid, options to challenge and appeal decisions on the matter, sums of allowance reductions according to the number of children in the family, recalculation of the allowance after the child has been vaccinated as required or after the passage of the last date on which the vaccine, because of which the allowance was reduced, could be administered, etc.

2.Publication of the Vaccination Program by the Director General of the Ministry of Health was initially postponed because claims were raised regarding lack of access to Family Health Centers (“Tipat Chalav”) by the Bedouin population in the Negev, such that in practice the Amendment could not be implemented. After actions were taken to increase access and awareness among the Bedouin population in the Negev, the Director General of the Ministry of Health published a vaccination program by virtue of the Law, which included one vaccine named MMRV, a “quadrivalent” vaccine against four diseases: measles, mumps, rubella and varicella. The vaccine is given to infants at the age of one year and the program applies to infants born starting January 1, 2012, such that the first reduction of allowance will be made no earlier than July 1, 2013.

The petitions at bar were filed against this arrangement.

HCJ 7245/10 –Petitioners’ Claims

3.The petitioners are organizations and associations that act to promote Arab and Bedouin minority rights, as well as residents and chairpersons of local committees of three Bedouin villages in the Negev, in which, on the date this petition was filed, no Family Health Center operated.

4.First, the petitioners claim that the Amendment was passed following a coalition agreement, and that prior to its approval no discussion was held in respect thereof. They also argue the respondents did not base the approval of the Amendment on any analysis or research. Second, the petitioners claim that the Amendment violates the children’s constitutional rights. According to them, the child allowance belongs to the children themselves, even though it is remitted to their parents. The court has emphasized on various occasions the importance and objective of the child allowances is for the children’s welfare. The conclusion, therefore, according to the petitioners, is that reduction of the allowances harms the children and violates their rights, mainly children belonging to poor families that will be forced to waive monetary expenses necessary for the upbringing and development of the children. It is argued that the Amendment violates the supreme principle of the best interest of the child, which has been established in the case law of the Supreme Court and in international treaties. The petitioners further claim that the Amendment violates the principle of equality between children, as it creates an irrelevant distinction between children who have received vaccines and those who have not received vaccines, and between children whose parents have access to preventive medical services and children for whom the State has not ensured access to such services. They further claim that the Amendment violates the children’s constitutional right to the property, since the allowances belong to them. They claim that the very payment of the insurance contributions to the National Insurance Institute create a contractual agreement between the parent and the National Insurance Institute, which includes the expectation of payment of child allowances against payment of the insurance contributions by the parent. Violating this expectation, it is claimed, is also contrary to

5.According to the petitioners, the violation of the aforementioned constitutional rights does not satisfy the conditions of the limitation clause. The violation, it is argued, is not for a proper purpose. The violation was made without examination and without an appropriate foundation; it aggravates poverty and socioeconomic gaps; and it also harms the public interest that mandates protecting and avoiding harm to those children who are not being vaccinated.

6.It is further asserted that the violation does not satisfy the threefold proportionality test. The violation does not satisfy the rational connection test, since the means chosen do not achieve the objective of protecting the child’s health and public health. According to the petitioners, the Amendment in fact harms the child’s wellbeing, health, development, property and right to social security, and causes a deepening of poverty. It is asserted that punitive use of the allowances is prohibited, and that the allowances should not be used to combat various negative or wrongful phenomena. The Amendment punishes the children for non-receipt of vaccination services.

The petitioners further claim that the violation does not meet the second proportionality test, the less harmful means test. According to them, other appropriate means could have been adopted to achieve the goal, such as making preventive health services accessible in the unrecognized villages in the Negev. The petitioners assert that the main population that will be harmed by the Amendment is the children residing in the Bedouin villages, including the children of the unrecognized villages. According to them, the high rate of unvaccinated Bedouin children is the product of the State’s failure to provide preventive health services at Family Health Centers. The Bedouin children’s access to these services is limited. In approximately forty-five unrecognized villages there are, it is argued, only twelve Family Health Centers, and even those were only put in place after a petition to the HCJ, and some are under threat of closure. The petitioners add that the residents of these villages also have limited mobility due to the absence of driving licenses and suitable public transportation in the area, and that they have low socioeconomic status and a very high rate of poverty. The Amendment therefore punishes the Bedouin children through no fault of their own, and due to the Ministry of Health’s failure to fulfill its obligation to realize these children’s rights from the outset. This punishment will further aggravate the socioeconomic status of the Bedouin children, and deepen the social gaps between this population and the general population. The petitioners assert that despite the neutral language of the Amendment, the said data reveal that, de facto, it discriminates against the Bedouin children on the basis of nationality.

Finally, the petitioners claim that the violation also fails to fulfill the narrow proportionality test. According to them, democracy cannot justify punishing children because they have not been vaccinated by their parents. The Amendment leads to a result opposite to that sought by the legislature and, instead of protecting the children’s health, causes them additional harm.

7.In supplementary pleadings filed by the petitioners on August 16, 2012, the petitioners seek to emphasize the claim that the violation of rights should be examined in light of the fact that the matter concerns children, a group with special characteristics which mandate special constitutional protection. According to them, this fact distinguishes between a regular violation of the right of equality, which may be a permitted distinction, and a violation which falls under the definition of prohibited discrimination, i.e. violation of the constitutional right.

HCJ 8357/10 – The Petitioner’s Claims

8.The petitioner in HCJ 8357/10 is the Israel National Council for the Child. It too asserts that the Amendment constitutes a violation of the equality between children whose parents vaccinated them and children who have not been vaccinated for whatever reason. According to the petitioner, this is not a distinction that is relevant to the purpose of the legislation. The purpose of the child allowance arrangement, it is argued, is to allow a redistribution of income among the population, transferring income from citizens who have no children to those who have children and whose income needs to be divided between a greater number of persons. According to the petitioner, the allowance is not a prize for desired behavior, and conditioning the allowance on a condition unrelated to the size of the family is wrongful ab initio. The petitioner claims that the case does not concern denial of a benefit given to parents for vaccinating their children, as the State claims, since the allowance increment granted in the Amendment does not apply to the first child or the fifth and any subsequent children. The Amendment may also harm populations that are already weakened, who do not vaccinate their children due to lack of access to Family Health Centers or due to the absence of time and financial resources. The petitioner emphasizes that the rate of unvaccinated children is particularly high in the unrecognized settlements in the Negev as a result of a lack of physical, cultural and linguistic access to vaccination services. The petitioner further claims an additional violation of the right to social security which will bring more children into the cycle of poverty and deepen penury among families already below the poverty line, contrary to the objective of the child allowances, particularly with respect to the first child and the fifth child onwards in the family.

9.The petitioner argues that the violation of the constitutional rights of the children does not satisfy the conditions of the limitation clause. The objective of increasing the vaccination rate is foreign to the purpose of the allowances, and therefore is not a proper purpose. Introducing this consideration will create a dangerous precedent whereby allowances may be reduced for any health, educational or social reason. The proportionality test is also not satisfied according to the petitioner. When the reasons for non-vaccination are ideological or depend on access to health services, it is clear that the reduction of the allowances will not affect vaccination. Therefore, the means are inconsistent with the purpose. The lack of consistency, it is claimed, stands out against the background of the data regarding the high rate of vaccination in the State of Israel, mainly with respect to the vaccinations currently required by the Vaccination Program published in accordance with the Amendment. The petitioner makes a distinction between a benefit, the conditioning of which on vaccination may be proportionate, and the imposition of a sanction for failure to vaccinate which is not proportionate. The petitioner rejects the State’s claims regarding the measures taken in order to moderate the harm. It further claims that there are many and varied measures for achieving the goals reflected in the Amendment that do not violate the children’s rights and have a greater benefit potential. Thus, it is possible to act to increase awareness and improve access to child vaccination services.

HCJ 908/11 – The Petitioners’ Claims

10.The petitioners in HCJ 908/11 are the Association for Information on Vaccines and parents whose children they argue suffered various negative reactions following a vaccination. The petitioners claim that there are differences of opinion in the medical community and among the public regarding the effectiveness of vaccines and the severity of their side effects. Hence, they believe that parents should be allowed the right to choose whether or not to vaccinate their children. According to them, the fact that there is a law aimed at compensating those injured by vaccines proves that vaccines are not risk-free. The petitioners further assert that the Amendment violates the right to equality, the individual’s right to autonomy and the right to autonomy of parents in the upbringing of their children. The petitioners challenge the Amendment legislation procedure and its inclusion in the Arrangements Law, which does not allow the issue to be thoroughly discussed and examined. Similar to the other petitions, these petitioners claim that the violation does not satisfy the conditions of the Limitation Clause.

The Respondents’ Claims

11.Respondents 1-5 the legislative proceedings, which began at the initiative of the Director General of the Ministry of Health, and included preparation and examination of the data in Israel and worldwide. A separate legislative memorandum was subsequently circulated, unlike the regular procedure for enactment of the Arrangements Law, in order to allow specific examination of the matter. The memorandum was discussed both at the various government ministries and at the Finance Committee of the Knesset, and conflicting positions were heard. The respondents note that it was decided to stop collecting the Family Health Centers’ fees in order not to create an economic barrier to vaccination. The respondents further specified the actions that were performed by the ministries for the implementation of the Law, including increasing access to Family Health Centers and increasing awareness of the Amendment to the National Insurance Law.

12.The respondents emphasize the importance of the MMRV vaccine and the severity of the diseases against which it immunizes. According to them, the vaccine is intended to combat diseases that can cause severe harm to public health, and particularly to the health of children. In addition, these diseases are highly contagious. The respondents stress that according to professional opinion, in order to reach “herd immunity”, which protects even those who cannot be immunized or who have not developed resistance despite having received the vaccine, the immunization coverage required in the population is approximately 95%. The respondents further state the importance of immunization coverage to each individual child, relative to both the child population and the general population. They also note the expected economic and social repercussions for the State due to the absence of effective prevention of disease outbreak.

13.The respondents maintain that the default is that the Court will not be inclined to intervene in socioeconomic policy established in primary legislation of the Knesset. The respondents further claim that the legislative procedure was duly carried out and does not create cause for the Court’s intervention. The respondents also assert that the Amendment does not violate constitutional rights. With respect to violation of the children’s rights, the respondents contend that the allowance is not a direct right of the child, but rather the right of the parents, intended to help them support the family unit. It is argued that the fact that the amount of the child allowance depends on the birth order of the child in the family supports this conclusion. In addition, on the practical level, it is the parents who decide on the use of the allowance, and they are not obligated to use it for purposes pertaining directly to the children. According to the respondents, even if the allowance did belong to the children, there is no case law establishing a property right for recipients of the allowances.

14.According to the respondents, the Amendment does not violate the constitutional right to minimal dignified existence. According to the respondents, there is no room for the assumption that any change in the allowance’s entitlement rate constitutes a violation of a constitutional right. They refer to case law that determines that the array of social rights does not necessarily reflect the bounds of the right to social security at the constitutional level. Moreover, the case at bar concerns the reduction of an allowance that for the most part corresponds to the allowance increment that was granted in the Amendment, and therefore there is no ground for the assertion that the Amendment will violate the right to minimal dignified existence. With respect to the violation of equality, the respondents claim that the Amendment establishes an egalitarian norm which seeks to incentivize individuals to take action that is highly desirable from a social and health perspective, and it cannot be said that it constitutes a discriminatory norm. Every parent is able to ensure that his child is vaccinated, and in such a case, the child allowance will not be reduced. In any event, it is argued that there is no violation of equality at the constitutional level—that is, a violation that is closely and pertinently related to aspects of human dignity as a constitutional right. As for the assertion of consequential discrimination on the basis of nationality, the respondents claim that the data indicate a similar rate of vaccination in the Jewish sector and in the Arab sector, while in the Arab sector there is a slightly lower rate of vaccination than in the Bedouin sector. The respondents admit that the percentage of vaccination in the unrecognized villages in the Negev is lower, but believe that the current level of access to Family Health Centers in these settlements, after various actions have and are being taken, is reasonable and appropriate. Finally, the respondents assert that the Amendment does not violate the constitutional rights to autonomy and to parenthood. They state that the professional position of the Ministry of Health, which is based on the prevailing approach in the medical world, is that vaccines are a desirable, efficient and safe method of preventing morbidity. They claim that the fact that there is a professional dispute on the matter does not provide grounds for the Court’s intervention in primary legislation. They further argue that the law does not force parents to vaccinate their children, but merely creates an economic incentive to vaccinate. In any event, it is argued that there is no violation whose severity rises to the level of a violation of a constitutional right. The respondents believe that the Amendment promotes other aspects of human dignity, leaving no basis to determine that the bottom line is injurious.

15.Alternatively, the respondents assert that even if it is determined that a constitutional right is being violated, the violation is lawful and satisfies the conditions of the Limitation Clause. They state that the purpose of the Amendment is protection of children while ensuring their health and welfare and caring for public health in general. This, they claim, is a proper purpose the values of the State of Israel. They further claim that the purpose is not foreign and extraneous to the National Insurance Law. They also assert that the Amendment satisfies the three proportionality tests. Experience in other countries establishes the effective connection between economic incentives and the conduct of parents with respect to their children, including increasing vaccination rates. Regarding the less harmful means test, the respondents admit that other alternatives exist to incentivize the vaccination of children. However, they claim that the means chosen by the legislator do not exceed the bounds of proportionate measures. They add that the State may intervene in arrangements and regulation of conduct where there is a public good that creates a “market failure” in the actions of citizens, each of whom is relying on the immunization of the other. Finally, they claim that the proportionality requirement in its narrow sense is fulfilled, in view of the clear public interest in vaccinating children and maintaining a high vaccination rate on the one hand, and considering that the harm is limited and proportionate, taking into account the conditions and limitations set forth in the legislation regarding reduction of the allowance, on the other hand.

16.The respondents refer in detail to the issue of the repercussions of the Amendment on children in the Bedouin diaspora. They argue that following actions taken on behalf of the respondents, there is currently reasonable and adequate access of the Bedouin population to Family Health Centers. In addition, they state that the MMRV vaccination rate in the Bedouin population registered at Family Health Centers is higher than the MMRV vaccination rate in the Jewish sector.

17.Respondent 6, the Knesset, rejects the petitioners’ claims and joins the position and reasoning of Respondents 1-5.

Deliberation and Decision

Claims Pertaining to the Legislative Process

18.The petitioners raise claims concerning the enactment of the Amendment in the framework of the Arrangements Law in expedited legislative proceedings, and argue that the Amendment was born out of a coalition agreement without comprehensive ground work. These claims should be dismissed. As detailed by the respondents in their response, the Amendment emerged following the request of the Director General of the Ministry of Health in 2008, Prof. Avi Israeli, to the Ministry of Finance, in which he requested to examine the possibility of conditioning child allowances on various acts, including vaccination of children. In 2009, the issue was also introduced into the coalition agreements, but there is nothing wrong with that in itself. Following the request of the Ministry of Health, the Ministry of Finance carried out a review of similar arrangements around the world, as well as examined the vaccination data in Israel. The resulting position paper stated that the use of allowance conditioning around the world to increase school attendance and the use of preventive medicine has been proven to be effective. It further indicated that there is a phenomenon in Israel of not vaccinating infants, contrary to the Ministry of Health’s recommendation. An outbreak of tuberculosis in Israel in 2008 was mentioned, and it was emphasized that the Ministry of Health has no effective means to handle the said problem. The position paper proposed a model whereby receipt of child allowance would be conditioned upon regular attendance at an educational institution and receipt of the vaccines required by the child’s age and health condition. As part of the discussions in preparation for the Arrangements Law, several discussions regarding this proposal were held at the relevant ministries as well as before the Attorney General. In the course of these discussions, several changes were made to the model proposed by the Ministry of Finance. Later, a Government Resolution was made generally adopting the proposed model with certain changes, primarily the reduction in child allowances, rather than their denial, and the establishment of caps for the reduction in each family.

19.Following the Government Resolution, and contrary to the regular procedure in the framework of the Arrangements Law, the Ministry of Finance circulated a separate legislative memorandum in order to allow continued examination and detailed discussion on the issue. The memorandum was examined by various entities at the ministries, and the Ministry of Justice also forwarded its comments regarding the memorandum. In addition, the Finance Committee of the Knesset held a discussion on the memorandum and examined the arrangement established therein. Prior to the discussion, the committee members received an analysis on the matter prepared by the Knesset Research and Information Center, which also included positions opposing the proposed arrangement. Many entities from the various ministries and from the National Insurance Institute were present at the Committee’s discussion on June 24, 2009, as well as representatives of the Israel National Council for the Child, one of the petitioners at bar. The vaccination data in the various sectors in the State of Israel were presented to the members. On July 7, 2009, another discussion was held at the Finance Committee, and its members were informed of the removal of the condition of regular attendance at an educational institution. Finally, the Finance Committee approved the bill for a second and third reading. The law in its final version was approved by the Knesset on July 14, 2009 after a discussion that included specific reference to the issue at bar (see the Knesset minutes of July 13, 2009, available at http://www.knesset.gov.il/plenum/data/02626209.doc#_Toc258334465).

20.In order to examine the petitioners’ claims regarding the legislative proceedings described above, it is necessary to mention the case law that held that intervention of this Court in parliamentary proceedings will be limited to cases in which “the legislative process causes deep harm to material values of the constitutional regime[.]” (HCJ 6784/06 Shlitner v. The Pensions Commissioner, Paragraph 36 of the opinion of Justice Procaccia (January 12, 2011)). The test that was set out is “whether the defect in the legislative proceeding goes to the root of the proceeding, and whether it harms basic values of the constitutional regime.” (Id). It was further held that an expedited legislative proceeding, such as the Arrangements Law, does not, in itself, lead to the striking down of the law. Even in such a case, the Court will examine whether there was a defect that goes to the root of the proceeding to an extent that justifies judicial intervention, and the consequence of such a defect in accordance with the severability model. (HCJ 4885/03 The Poultry Breeders in Israel Organization Agricultural Cooperative Society Ltd. v. The Israeli Government [2004] IsrSC 59(2) 14, 42 (hereinafter, “The Poultry Breeders Organization Case”); HCJ 3106/04 The Association for Civil Rights in Israel v. The Knesset [2005] IsrSC 59(5) 567). It was further held that “even if it were proven that the legislative procedure prevented the holding of an in-depth and exhaustive discussion and impaired the ability of Knesset members to formulate a well-established position with respect to each one of the issues included in the bill, this is not enough to justify judicial intervention.” (The Poultry Breeders Organization Case, on p. 50).

21.In the case at bar, there is no room for judicial intervention in the legislative proceedings of the Amendment. Contrary to the practice with the Arrangements Law, a separate legislative memorandum was circulated on the issue in question to the various ministries for their comments. In addition, as can be seen from the chain of events reviewed above, the issue was discussed and examined by various entities; various positions were heard, a report of the Knesset Research and Information Center was prepared and data were presented regarding the success of similar arrangements around the world. In the course of the discussions, the bill was modified, narrowed, and arrangements were added in order to reduce the harm to the entitled population. The issue was also raised in the discussion at the Knesset, and objections by various Knesset Members were heard regarding conditioning the child allowances on the vaccination of children. Indeed, there may have been room for a more in-depth discussion with a broader foundation. However, this is not a defect that goes to the root of the proceeding, and therefore there is no room for the Court’s intervention based on a defect in the legislative proceeding. (See and compare HCJ 494/03 Physicians for Human Rights – Israel v. The Minister of Finance [2004[ IsrSC 59(3) 322, 330 (hereinafter, “PHR Case”)).

Regarding the Content of the Legislation

22.Before examining the constitutionality of the Amendment, we must first state the essence and purpose of the child allowance arrangement. I will then review the standpoint of the Ministry of Health and medical science on vaccines in general, and specifically on the MMRV vaccine. These reviews will lay the foundation for examining the constitutionality of the Amendment to the National Insurance Law. As part of this examination, I will examine the question, as customary, of whether constitutional rights established in Basic Law:

Child Allowance – the Arrangement and its Purpose

23.

24.Johnny Gal Taub Center Social Policy Dan BenDavidEditor, 2010) (hereinafter, “Gal”); HCJFH 4601/95 Serossi v. The National Labor Court [1998) IsrLC 52(4), 817, 831; HCJ 6304/09 Lahav, The Umbrella Organization for Independent Businesspeople v. The Attorney General, Paragraphs 43-44 (September 2, 2010) (hereinafter, “Lahav Case”)). The social insurance system is supposed to ensure minimal dignified existence for all of its residents and to protect their standard of living. The system is based on the principle of social solidarity and mutual assistance. (LCA 7678/98 The Payment Officer v. Doctori [2005] IsrSC 60(1) 489, 525; Lahav Case, Paragraphs 44, 58). The purpose of the child allowances is to help families with children to bear the increasing costs of raising children. In fact, the child allowances to equalize the state of different-sized families whose level of income are equal. In addition, they help families not to fall below the poverty line due to the added expenses of having children, and protect the family against exposure to the social risk of a decline in the standard of living created as a result of expansion of the family. (Abraham Doron “The Erosion of the Israeli Welfare State in 2000-2003: The Case of Children Allowances”, Labor, Society and Law, 11 95, 106 (5766); Gal, on p. 254; Ruth Ben-Israel “Family and Social Security: From A Traditional Division of Labor to a New Division”, Menashe Shava’s book, 207, 215-216 (Aharon Barak & Daniel Friedmann eds., 2006)). Understandably, these allowances affect the welfare of the child in the family, and therefore one of the purposes of the allowance is to further the best interests of the child and caring for the children’s welfare. (NIA /04 Azulay v. The National Insurance Institute, the opinion of Deputy President E. Barak-Ussoskin (November 2, 2006) (hereinafter, “Azulay Case”); HCJ 1384/04 Betzedek – The American-Israeli Center for the Promotion of Justice in Israel v. The Minister of the Interior [2005] IsrSC 59(6) 397, 408 (hereinafter, “Betzedek Center Case”)).

25.The Competent Authority under the Invalids (Nazi Persecution) Law 5717-1957 [1978] IsrSC 32(3) 408 (hereinafter, “Sin Case”), Justice C. Cohen holds that the child allowances are not income of the insured parents, but rather escrow funds the mother is entrusted with to spend for the welfare of her children. Certainly, it was held, it is not income of the father, who does not receive the money, neither into his possession nor for his enjoyment. The Court added that “the legislator’s intention in allocating an allowance to children would be entirely thwarted and frustrated if the children’s allowance was deemed as income of their parents, and all types of authorities would be able to get a hold thereof and take it from the mouths of the children in order to collect payment from their parents.” (Sin Case, on p. 411; see also LCA 3101/00 Betiashvili v. The Competent Authority [2002] IsrLC 57(1) 183). Indeed, a ruling of the National Labor Court held that the person who is entitled to the child allowance is the insured parent and not the child directly, and that the parent does not hold the money in trust for his child in the legal sense. (Azulay Case, Paragraphs 4-5 of the opinion of Justice V. Wirth Livne). However, this Court has not ruled on the issue, and the petition filed on the opinion in the Azulay Case was dismissed in limine because it was theoretical, and did not state a position on the merits of the issue. (HCJ 967/07 Jane Doe v. The National Insurance Institute (April 29, 2007)). In addition, it should be noted that in the Azulay Case, a minority opinion was voiced by Deputy President E. Barak-Ussoskin. This position, which was based, inter alia, on the said judgments of this Court, asserted that the right to child allowance is granted to the child and not to the parent, and that the parent receives the allowance in trust in order to care for the welfare of the child.

In any event, I do not believe that we are required to decide this issue, but we should rather assume that the legislator, when determining the child allowances, had in mind the welfare and best interests of the children.

The Vaccination Program

26.The issue at bar mainly concerns the conditioning of part of the child allowance on vaccinating the child for whom the allowance is paid. Therefore, the purpose of the Vaccination Program in Israel should be briefly stated. As the respondents clarified, the professional position of the Ministry of Health is that vaccines are a means of utmost importance for protection of the health of children and of the general public. The vaccine system currently in place protects the population in general and children in particular from serious morbidity. The importance of the vaccines is not expressed merely in vaccinating children, but also in ensuring the vaccine is timely given, in accordance with the recommendations of the Ministry of Health. This was addressed in the past by Deputy President E. Rivlin:

“There is no doubt that compliance with the vaccination dates is of great importance, and it is the duty of the persons charged with it to ensure and verify that there is no unjustified delay in vaccinating infants. The schedule set for vaccinating infants was set for good reason, and it obviously must be adhered to with the utmost attention and the strictness required in such a matter.” (CA 9628/07 Shalom v. Clalit Health Services, Paragraph 6 (September 2, 2009)).

27.The Ministry of Health deems the vaccination of children to be of great importance on two levels: the first level concerns the protection of the health of the individual child receiving the vaccine. The respondents state that a vaccine is the only way to ensure protection of the individual from the diseases against which the children are vaccinated. They explain that in a world that has become a type of “global village,” there is a risk that any immigrant or tourist will bring with him diseases that are not currently found in Israel, and which may infect those who are not immunized against such diseases. The second level concerns what is termed “herd immunity.” Herd immunity protects individuals in the public who have not been vaccinated for justified reasons, such as newborn babies who have yet to reach the age in which the vaccine is administered, the elderly person whose immune system is not functioning properly, or other persons at risk with respect to their immune systems, such as people suffering from serious illnesses or undergoing chemotherapy. In addition, herd immunity protects the small percentages of individuals who were vaccinated but are not reacting to the vaccine. Herd immunity is only achieved when there is a high coverage rate of vaccinated individuals in society and so long it is maintained.

Herd immunity creates a unique characteristic with respect to the issue of children’s vaccination, since the individual decision of each parent as to whether or not to vaccinate his children has an effect on the entire public. In addition, a “free rider” problem may develop in this regard, whereby a parent will choose not to vaccinate his children on the assumption that herd immunity will protect them from the diseases against which the vaccines protect. A wide-scale phenomenon of free riders could harm the herd immunity and thus harm the general public.

28.It appears that the majority of the petitioners also recognize the importance of vaccines and their significant contribution to public health; the main dispute is about what measures should be taken in order to encourage the vaccination of children. However, the petitioners in HCJ 908/11 challenge this starting point, arguing that the effectiveness of vaccines and the severity of their side effects are in dispute. It appears to me that this position cannot change the said starting point. It seems that the position of the Ministry of Health regarding the importance of vaccines is a prevalent and very common position in Israel and around the world. (See e.g. Avraham Sahar “Opportunity Makes the Thief...” Beliefs, Science and the Vaccine Victims’ Insurance Law, 5750-1989” Medicine and Law 36 on p. 105 (2007) (hereinafter, “Sahar”); Bilhah Kahana “The Vaccine Victims’ Insurance Law – A Law that is Not Enforced” Medicine and Law 38 on p. 14 (2008)). Insofar as we are aware, to date no causal link has been scientifically proven between vaccines and neurological or other damages. However, medical science recognizes that vaccines, or to be precise, the fever caused in some children as a result of vaccination, can create a risk and cause damage to a very small percentage of children with a certain genetic predisposition who receive a vaccine. Nonetheless, it is unclear whether, even if the vaccine had not been given, damage could have been caused as a result of another fever-inducing disease. (See Tali Sagi “Comments on the Article “Opportunity Makes the Thief - Beliefs, Science and the Vaccine Victims’ Insurance Law”” Medicine and Law 36 on p. 116 (2007)). In addition, there is broad consensus that even if there is a certain risk, it is very small, and that the benefit resulting from the vaccine is much greater:

“The risk entailed in receiving the vaccine, even though it does in principle exist, is very distant and rare, while the benefit and necessity of the vaccine to the health of the child are not doubted” (CA 470/87 Eltori v. The State of Israel – The Ministry of Health [1993] IsrSC 47(4) 146, 153).

Examples from Israel and around the world can illustrate this risk. When the public immunization level declines, usually due to fears raised by vaccine opponents, there are reports of outbreaks of epidemics which were ostensibly extinct, causing severe injuries. This was the case in Britain after the rate of persons immunized against pertussis dropped to approximately 30% in early 1980; a pertussis epidemic broke out leading to the hospitalization of approximately 5,000 children and the death of twenty-eight children (Sahar, on p. 106). In Israel, an outbreak of measles occurred in 2003 among a population that did not habitually vaccinate. Within two weeks, sixty children fell ill, out of whom one child passed away from the disease. Another outbreak occurred in 2007-2008 after a sick tourist arrived from England. The disease spread among a non-immunized population and within several months 1,452 cases of measles were reported.

29.It should further be noted that the case law holds that the administrative authority, and certainly the legislative authority, may rely on expert opinion, even if there is a contradicting opinion, and the court will honor the authority’s decision between the contradicting opinions. “When a law is based on a matter within professional expertise, the fact that there are contradicting opinions on such issue does not justify striking it down.” (HCJ 6976/04 The “Let the Animals Live” Association v. The Minister of Agriculture and Rural Development, Paragraph 11 (September 1, 2005) (hereinafter, “LAL Case”); see also HCJ 1554/95 Gilat Supporters v. The Minister of Education and Culture [1996] IsrSC 50(3) 2, 19; HCJ 4769/95 Menachem v. The Minister of Transport [2002] 57(1) 235, 271 (hereinafter, “Menachem Case”)). Understandably, had there been a well-established and prevalent position among medical experts believing that the risks from the vaccines exceed the benefit, it would have affected the constitutional analysis of the Amendment being examined before us. However, this is not the factual situation. As I stated, the prevalent and recognized position worldwide is that the benefit derived from the vaccines immeasurably exceeds the risk inherent therein. (See e.g. . This position has opponents, but it appears that they are the relatively marginal minority. Therefore, this will be the starting point for the continuation of our discussion.

The MMRV Vaccine

30.As mentioned above, according to the Amendment to the National Insurance Law, the Director General of the Ministry of Health is required to publish a program of the vaccinations required. The child allowance will be reduced only for parents who have not vaccinated their children with the vaccines included in the program published. This program currently includes only one vaccine, the MMRV, also known as the quadrivalent vaccine, which is given to infants at the age of one year in a single dosage. Another dose is given to children in first grade, but this dose is not included in the Vaccination Program published. It is therefore appropriate to provide some details on this vaccine.

31.The quadrivalent vaccine, as its name suggests, protects against four diseases: measles, mumps, rubella and chicken pox. The vaccine is common in many countries worldwide. All European countries recommend a vaccine against measles, mumps and rubella. The vaccine against chicken pox is recommended in the United States, Australia, Canada, Germany, Greece, Latvia, and Japan.

32.Measles is a serious childhood disease. The disease may cause serious complications in the respiratory airways and in the nervous system. Approximately one third of patients will develop complications such as otitis media, diarrhea and keratitis. Rarer complications are pneumonia and encephalitis (one in 1000 cases). A very rare complication of the disease, which may appear approximately ten years after its manifestation, is a complication that manifests as a degenerative disease of the brain called subacute sclerosing panencephalitis and which causes serious and irreversible damage to the central nervous system, including mental deterioration and seizures. The risk of complications is higher among children under the age of five, among adults over the age of twenty, and among patients with a suppressed immune system. 1-3 children of every 1,000 patients die from the disease. Worldwide, measles is responsible for approximately twenty-one percent of mortality resulting from diseases preventable by vaccines. Measles is highly contagious, and a person who is not immunized and is exposed to a patient has a general risk of 90% of being infected. The vaccine against measles is very effective. 95% of children who receive the vaccine at the age of one develop antibodies against the disease, which give them long-term immunity. A few lose the protection against the disease after several years, and to address that, a repeat vaccine was introduced in Israel to be administered at school age. It should further be noted that in outbreaks of measles in Israel, the highest morbidity rates were of infants below the age of one, as they were not vaccinated against the disease.

33.Measles manifests in swelling in the salivary glands and in the glands beneath the ear lobe, sore throat, high fever, headaches and weakness. In approximately ten percent of patients, meningitis may develop, which manifests in vomiting and headaches. A common complication among adults is orchitis; more rare complications are an infection in the joints, thyroid, kidney, cardiac muscle, pancreas and ovary, deafness and other complications in the nervous system. Manifestation of the disease in a pregnant woman in the first trimester causes an increased rate of spontaneous miscarriage. The disease is more severe among adults and the rare mortality from the disease is mainly among this group. The vaccine against the disease is very effective. 80% of persons vaccinated with a single dosage are protected, and 90% are protected after receiving 2 doses.

34.Rubella may, in certain cases, cause complications such as encephalitis, which is more common in adults, and hemorrhaging due to a decline in the number of platelets, a phenomenon common mainly in children. Among women in the first months of pregnancy, rubella may harm the developing fetus and cause the death of the fetus or severe birth defects, which include eye defects that cause blindness, heart defects, deafness, defects in the nervous system which cause behavior disorders, and mental disability.

35.Chicken pox manifests in a high fever accompanied by a rash with blisters. Complications of the disease are pneumonia and encephalitis, a severe bacterial infection of the skin, a decline in the number of platelets and in rare cases hemorrhaging, kidney dysfunction, and even death. The disease is more severe among adolescents and adults, and is especially serious among persons with suppressed immunity who cannot receive the vaccine. Cases of death from chicken pox have been described among children treated with corticosteroids, which are frequently given as a treatment for other diseases (such as asthma). Contracting chicken pox in the first twenty weeks of pregnancy may cause birth defects in the eyes, limbs, skin and nervous system. Contracting the disease shortly after birth is especially dangerous for a newborn. Patients who have recovered carry the “varicella-zoster” virus in a dormant state in their body. This virus may, years later, or when the immune system is weakened, cause an outbreak of a disease called “herpes zoster.” This disease causes severe local pain which may last for a long time. The vaccine results in the development of protection in 85% of the persons vaccinated at the age of one year. The vaccine protects against a serious disease with complications, and giving two doses leads to a very high protection of 97%, to a point where it is impossible to identify chicken pox.

36.With respect to the MMRV vaccine, the vaccination coverage in Israel among the general population was on average 90% between the years 2006 and 2009. It should be noted that according to what we have been told, the position of professionals is that to achieve “herd immunity” with the MMRV vaccine, the vaccination coverage required in the population is approximately 95%.

Now that the factual foundation has been laid, the legal aspect shall be built upon it.

Examination of the Constitutionality of the Amendment to the National Insurance Law

37.We should first reiterate what is known: that the Court will not be quick to intervene and repeal statutory provisions enacted by parliament. In this regard, the court must exercise judicial restraint, caution and reserve:

“Indeed, striking down a law or part of it is a serious matter, not to be taken lightly by a judge. Striking down secondary legislation for conflicting with a statute is not the same as striking down primary legislation for conflicting with a basic law. By striking down secondary legislation, the judge gives expression to the desire of the legislator. By striking down primary legislation, the judge frustrates the desire of the legislator. The justification is that the legislator is subject to supra-statutory constitutional provisions, which he himself set. (See A. Barak “Judicial Review of the Constitutionality of a Statute”, Law and Governance C 403 (5756)). Nevertheless, considerable judicial caution is required.” (LAL Case, Paragraph 9).

However, I do not accept the respondents’ position that the judicial restraint required in this case is similar to that required for constitutional review in areas of economy and finance. As is known, case law mandates that this Court exercise particular restraint in areas of economy and finance, which involve far-reaching social and economic aspects. It has been held that the authorities entrusted with the economic policy should be allowed broad leeway “as the entities in charge of determining the comprehensive policy, and bearing the public and national responsibility for the State’s economy and finance.” (Menachem Case, on p. 263; see also HCJ 8803/06 Ganei Chuga Ltd. v. The Minister of Finance, comments of Justice Procaccia (April 1, 2007); Lahav Case, Paragraph 63). In the case at bar, although the Amendment to the National Insurance Law is part of the Arrangements Law, it is not a law whose essence is budgetary or economic. Although this is a socio-public matter, this is not what was meant by the special judicial restraint mentioned. As the respondents emphasized, the purpose of the Amendment is not economic and is not monetary savings. On the contrary, the purpose of the Amendment is to ensure that no child loses his allowance, since the purpose is that all children be vaccinated. Hence, I do not believe that the said case law applies to this matter. It is, however, clear the judicial restraint and reserve required by the mere constitutional review of an act of the Knesset also apply to the case before us.

38.As is known, constitutional review is divided into three stages. At the first stage, it is necessary to examine whether the law in question violates constitutional rights enshrined in the basic laws, and in the case before us, Basic Law: Human Dignity and Liberty (hereinafter, “Basic Law”). If the answer is negative, the constitutional review ends and it should be held that the law in question is constitutional. If the answer is affirmative, it is necessary to proceed to the second stage at which we examine whether the violation satisfied the conditions set in the Limitation Clause in Section 8 of the Basic Law. In order for the law to be declared constitutional, the violation must satisfy all of the conditions set forth in the Limitation Clause. If one of the conditions is not met, it is necessary to proceed to the third stage, which is the stage of the remedy for the unlawful violation. (HCJ 2605/05 Human Rights Unit v. The Minister of Finance, Paragraph 16 of the opinion of President Beinisch (November 19, 2009); HCJ 10662/04 Hassan v. The National Insurance Institute, Paragraph 24 of the opinion of President Beinisch (February 28, 2012) (hereinafter, “Hassan Case”); Lahav Case, Paragraph 75). As held in the Hassan Case, this method of constitutional analysis will be identical both when we are concerned with civil and political rights and when we are concerned with social and economic rights. (Hassan Case, Paragraph 31 of the opinion of President Beinisch).

We shall begin, therefore, at the first stage of constitutional review and examine whether, as the petitioners claim, the Amendment to the National Insurance Law indeed violates rights enshrined in Basic Law. In this framework, we will specify three principal rights that the petitioners mentioned in their pleadings: the right to a dignified life or the right to social security, the right to autonomy, and the right to equality.

The Violated Rights: The Right to a Dignified Life

39.Nowadays, no one disputes that the human dignity enshrined in Basic Law also includes the right to a minimal dignified existence, including both the positive and negative aspects of the right. This right means that “a person will be guaranteed the minimum of material resources that will allow him to sustain himself in the society in which he lives[.]” (HCJ 366/03 Commitment to Peace and Social Justice v. The Minister of Finance [2005] IsrSC 60(3) 464, 482 (hereinafter, “CPSJ Case”)). It was held that this right is at the core and nucleus of human dignity:

“Living in starvation and without shelter, while constantly searching for handouts, is not a dignified life. A minimal dignified existence is a condition not only to preserving and protecting human dignity, but also to exercising other human rights. There is no poetry in a life of poverty and deprivation. Without minimum material conditions, a person lacks the ability to create, aspire, make his choices and realize his freedoms.” (Hassan Case, Paragraph 35 of the opinion of President Beinisch).

It was further held that the right to a dignified life is not a right derived from the right to human dignity, but a right that constitutes a tangible manifestation of human dignity. (Hassan Case, Paragraph 36 of the opinion of President Beinisch; CPSJ Case, on p. 479).

40.The right to a dignified life is protected by the State using a variety of measures, systems and arrangements, and there is no doubt that the welfare legislation and allowances of the National Insurance Institute constitute a considerable and significant part of the realization of this right. The child allowances also constitute an additional tool to realize the right, since families living in poverty due to, inter alia, the expenses of raising children, can gain much assistance from these allowances and rise above the threshold that enables a dignified life. It should indeed be kept in mind that child allowances are universal allowances given according to the make-up of the family, and are not dependent on the family income. Therefore, the object of realizing a dignified life will not always be relevant to these allowances, compared to income assurance, for example, which is an allowance whose main purpose is to create a lasting safety net for families that need it. (Hassan Case, Paragraph 44 of the opinion of President Beinisch). However, there might be cases in which families on the edge of the last safety net will fall below it if they are denied the child allowance. The assumption is that “the gamut of the welfare arrangements granted in Israel provide the ‘basket’ required for a minimal dignified life.” (Hassan Case, Paragraph 46 of the opinion of President Beinisch).

41.Despite the aforesaid, I believe that in the case at bar, the petitioners have not presented a sufficient factual foundation to prove the existence of a violation of the right to a dignified life resulting from the Amendment to the National Insurance Law. As is known, a person who claims a violation of a constitutional right bears the burden of proving such violation. (Aharon Barak, Interpretation in Law – Constitutional Interpretation 374 (Vol. 3, 1994)). The petitioners bear the burden of demonstrating that after examination of the range of services provided to the family, reduction of the child allowances will cause harm to the dignity of families whose material living conditions will fall short. At the very least, and under the lenient approach, they should have presented individual cases that indicated the alleged harm; then, the burden of proof would have shifted to the State. (See the comments of President Beinisch in the CPSJ Case, on p. 492-493; HCJ 4124/00 Yekutieli v. The Minister of Religious Affairs, Paragraph 48 of the opinion of President Beinisch (June 14, 2010) (hereinafter, “Yekutieli Case”)). In the CPSJ Case, it was held that the mere reduction, even if it is a significant reduction, in income assurance allowances, does not in itself prove a violation of the right to a dignified life, and it is necessary to examine the gamut of services and arrangements granted as a safety net in the State of Israel. “The examination is always concrete and consequential.” (CPSJ Case, Paragraph 19 of the opinion of President Barak; see also PHR Case, on p. 334; HCJ 10541/09 Yuvalim S.D.I. Ltd. v. The Israeli Government (January 5, 2012)).

42.The above is all the more relevant to the case before us. First, the petitioners did not point to any data proving their claim regarding the violation of the right to a dignified life of families to whom the Amendment will apply. The reduction in the child allowance cannot, in and of itself, establish a foundation for proving the violation. “The right to dignity, as well as the right to a dignified life, is not the right to a monthly allowance in a certain amount.” (CPSJ Case, on p. 485).

Second, this case concerns child allowances, distinguishable from income assurance allowances. As I stated, while the central purpose of the latter is to create a safety net for the realization of the right to a dignified life, this is merely one of the purposes of the child allowance. Therefore, while there are grounds to assume that denying income assurance allowance for reasons other than the existence of different sources of income violates, under the appropriate circumstances, the right to a dignified human existence of the person whose allowance was denied (see Hassan Case, Paragraph 46 of the opinion of President Beinisch), it is difficult to make a similar assumption with respect to the denial of the child allowances, and certainly with respect to their reduction. The case of child allowances therefore requires even more data-based proof of the violation of the right to a dignified life.

Third, and perhaps most important, most of the reduction in the child allowances for families who do not vaccinate their children is made after an increase of a similar amount of the child allowance, as it was prior to the Amendment. The Amendment increased the child allowance for the second, third and fourth child by NIS 100 per month for each child. At the same time, the reduction due to non-vaccination is NIS 100 per month for each child. It should be emphasized that for a family with more than three children the reduction is capped by the Amendment at NIS 300 per month, such that the reduction will be paralleled by a NIS 300 per month increase of the child allowances for that family (for the second, third and fourth children). The increase was also taken into account for families with two or three children, because for these families the maximum reduction will be NIS 100 and NIS 200 per month, respectively, equal to the increase in the child allowances that these families will receive. The only difficulty pertains to a family with a single child. In such a family, a reduction may be made in the sum of NIS 100 per month if the child is not vaccinated with the MMRV vaccine without such family receiving an increase in the child allowance to which the family is entitled. However, even with respect to such a family, it cannot be said that a violation of the right to a dignified life has been proven. As said above, data showing such a violation for a family of this type was not presented. In the absence of data, it may also be assumed that families with one child are less at risk of deprivation compared to large families. (See data thereon in the article of Yoram Margalioth “Child Allowances”, the Berenson Book on 733, 747-748 (5760)). Finally, weight should be given to the fact that even for such a family, the child allowance to which the family is entitled is merely reduced and not fully denied. In any event, “a deduction from a person’s income . . . is not the same as not granting a benefit.” (Betzedek Case, on p. 409). Where the main reduction is made following an increase of a similar amount in the allowance, it should be deemed as not granting a benefit, not as a deduction from a person’s income.

The conclusion is therefore that the Amendment does not violate the right to a dignified life.

43.I should note that insofar as the petitioners claim a violation of the right to social security, as distinguished from the right to a minimal dignified existence, they did not provide any support for its existence as a constitutional right, and made no argument as to the content of such right as distinguished from the right to a minimal dignified existence. This Court has not yet discussed the status and scope of the right to social security in Israeli law. (See HCJ 5578/02 Manor v. The Minister of Finance [2004] IsrSC 59(1) 729, 737 (hereinafter, the “Manor Case”); PHR Case, on p. 333). The petitioners did not expand on this issue, and it appears that some of them did not specify the differences between the two rights at all. Hence, I saw no room to discuss the issue of violation of this right separately. This is also the case with respect to the claim of violation of the property right. The question of whether the constitutional right to property applies to child allowances has not yet been decided in the judgments of this Court. (See the comments of Justices (formerly) Grunis and Rivlin in the Manor Case). The petitioners in HCJ 7245/10 raise this claim in a laconic and unsubstantiated manner, and I therefore also did not expand on this claim. In addition, I should note that the contractual assertion raised by the petitioners should be dismissed. No link is required between the insurance contributions collected by the National Insurance Institute and the allowances paid to entitled persons in respect of the various grounds for entitlement. (Lahav Case, Paragraph 57). Therefore, no harm is caused to the expectation of parents who pay national insurance contributions and whose child allowance will be reduced as a result of not vaccinating their children and a fortiori when the reduction in the child allowances almost fully corresponds to the increase in the amount of the allowance by the Amendment.

The Violated Rights – The Right to Autonomy and Parental Autonomy

44.The petitioners in HCJ 908/11 raised, at the center of their arguments, the violation of the right to autonomy, the right to parental autonomy and the right to parenthood. “One of the most important basic values is the value of the individual’s freedom of will” (Aharon Barak, Interpretation in Law – General Theory of Interpretation, 301 (vol. 1, Ed. 3, 1998)). This value of autonomy constitutes part of human dignity and is constitutionally protected by the Basic Law (HCJ 4330/93 Ganam v. The Israel Bar Association [1996] IsrSC 50(4) 221, 231 (hereinafter, the “Ganam Case”)). The meaning of the right to autonomy is the right of every individual to decide on his actions and wishes, according to his choices, and to act according to such choices:

A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto him or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life.

(CA 2781/93 Ali Daka v. Haifa “Carmel” Hospital [1999] IsrSC 53(4) 526, 570 (hereinafter, the “Ali Daka Case”). The right to autonomy is a framework right from which many other rights are derived. (See Ganam Case; HCJ 7357/95 Barki Feta Humphries (Israel) Ltd. v. State of Israel [1996] 50(2) 769; see also Ali Daka Case, on p. 572). The importance of the right to autonomy was recognized especially in the context of giving or avoiding medical treatment, and it gives rise to a separate cause of action which entitles the claimant to damages. (Ali Daka Case).

45.One of the aspects of the right to autonomy is the right to parental autonomy. Parents are the natural guardians of their children. (Section 14 of the Legal Capacity and Guardianship Law, 5722-1962 (hereinafter, the “Legal Capacity Law”)). As such, they have the “obligation and the right to care for the needs of the minor, including his education, studies, training for work, occupation, and employment, as well as preserving, managing and developing his assets; also attached to this right is the permission to have custody of the minor and authority to represent him and to determine his place of residence.” (Section 15 of the Legal Capacity Law). The parents are obligated to ensure the “best interests of the minor [in the way that] devoted parents would act under the circumstances.” (Section 17 of the Legal Capacity Law). This Court’s rulings have recognized a very broad autonomy of parents in raising their children. Several reasons are presented as underlying this recognition. First, this recognition derives from the natural connection between a child and his parents. Second, it is commonly assumed that the parents, who are in charge of the family unit and know it from every aspect, will make the best decisions for the children. The supplementary assumption is that outsiders will not always be able to make the best decisions for the minor because the decisions often entail emotional aspects. Third, often these are issues on which there is no social consensus. Finally, the fact that the parents are those who will need to cope with the practical repercussions of the decision is taken into account. (LCA 5587/97 The Attorney General v. John Doe – Minor, PDI [1997] IsrSC 51(4) 830, 860 (1997)). However, it should be emphasized that the autonomy of parents vis-à-vis their children is not absolute and is limited by the principles of the child’s best interests and his rights.

46.Nevertheless, I do not believe that any harm to autonomy or parental autonomy will be recognized as constitutional harm which requires compliance with the terms and conditions of the limitation clause. Obviously, the closer the harm is to the core of the right, the greater the inclination to recognize it as constitutional violation. (See the comments of Deputy President Rivlin in CA 8126/07 The Estate of the Late Bruria Tzvi v. Bikur Holim Hospital (January 3, 2010)). “Overexpansion of the extent of the constitutional right should be avoided. Sweeping expansion of the limits of the constitutional right at the first stage, and “automatically” proceeding to the tests of the limitation clause in any case in which it is argued that legislation violates that right, may lead, in the overall balance, to an erosion of the protection granted by the basic laws.” (Hassan Case, comments of Justice U. Vogelman). It appears to me that two parameters may be examined to determine whether or not the violation will be recognized as a constitutional violation of the right to autonomy. First, the essence of the choice denied the individual should be examined. The more the harm to autonomy pertains to aspects concerning personal expression and self-realization of the person, the greater the inclination to deem it as a violation of a constitutional right. Denying a citizen of the State the possibility to marry the love of his life is not the same as denying another the option to choose the type of facilities that will be installed in the public park next to his home. A second parameter that should be examined in my opinion is the extent of coercion and denial of will. A prohibition that entails a criminal sanction is different from the denial of a minor financial benefit.

47.In the case at bar, I am not convinced that a violation of the constitutional right to autonomy or to parental autonomy has occurred. Even if I assume that the first parameter regarding the essence of the choice denied is met, the second parameter regarding the extent of the coercion is not fulfilled. The Amendment does not create an obligation to vaccinate children, nor does it impose a criminal sanction on non-vaccination. The monetary reduction that accompanies non-vaccination of children is not high and can range between NIS 100 and NIS 300 per month at most. Even if I do not disregard the fact that for some families this amount is significant, as mentioned above, it is, for the most part, a reduction of the same amount that was added to the child allowances in the Amendment to the National Insurance Law. Hence, I do not believe that the reduction in the Amendment may be deemed to violate the right to autonomy in its constitutional sense.

The Violated Rights: The Right of Equality

48.Much has already been said in the rulings of this Court on the right of equality, its status and importance, and it has been widely extolled:

The principle of equality is one of the building blocks of the law and constitutes the backbone and ‘life-blood’ of our entire constitutional regime. (Justice Landau in HCJ 98/69 Bergman v. The Minister of Finance [1969] IsrSC 23(1) 693, 698; HCJ 4805/07 Israel Religious Action Center of the Israel Movement for Progressive Judaism v. The Ministry of Education, Section 70 of the opinion of Justice A. Procaccia (July 27, 2008) (hereinafter, “IRAC Case”); HCJ 11956/05 Bashara v. The Minister of Construction and Housing (December 13, 2006)). The right of equality was recognized in our legal system in the early days of the State, when it received a place of honor in the Proclamation of Independence, and it was further established in various laws that were enacted by the Knesset over the years, and in the case law of this Court, which deemed it a ‘regal right’ and a principle which is ‘high above the other principles’.” (HCJ 2671/98 The Israel Women’s Network v. The Minister of Labor and Social Welfare [1998] 52(3) 630, 650; HCJ 2911/05 Elchanati v. The Minister of Finance, Section 17 of the opinion of Justice E. Hayut (June 15, 2008)); APA 4515/08 State of Israel v. Neeman, Paragraph 17 of my opinion (October 6, 2009) (hereinafter, “Neeman Case”)).

And elsewhere I stated:

“It appears that no one disputes that equality is the keystone of a democratic regime and a central aspect of the relations between the individual and the State. No society can be maintained in a democratic state without equality, which is one of the derivatives of justice and fairness. Equality is a synonym for justice and fairness, as it appears to members of society in a certain period. Equality leads to justice, equality whose path is fairness. (See HCJ 7111/95 Federation of Local Authorities in Israel v. The Knesset [1996] IsrSC 50(3) 485, 502)” (HCJ 6298/07 Rasler v. The Israeli Knesset, Paragraph 18 of my opinion (February 21, 2012)).

The importance of the right of equality has been recognized and emphasized numerous times with respect to the distribution of budgets or resources of the State. “The resources of the State, whether land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them according to the principle of equality, without discrimination on the basis of religion, race, sex or any other prohibited consideration.” (HCJ 1113/99 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister for Religious Affairs [2000] IsrSC 54(2) 164, 170).

49.The right of equality, which creates the duty not to discriminate, does not mean equal treatment for everyone. It is a complex right which results from the fact that the common concept of equality seeks to give equal treatment for equals and unequal treatment for unequals. Equality does not require things to be identical. (HCJ 6427/02 The Movement for Quality Government in Israel v. The Knesset [2006] IsrSC 61 (1) 619, 677 (hereinafter, the “MQG Case”). Not every difference between people justifies distinguishing between them, but only a difference that is relevant to the matter in question. (HCJ 200/83 Veted v. The Minister of Finance [1984] IsrSC 38(3) 113, 119 (hereinafter, the “Veted Case”)). “The difference between wrongful discrimination and a permitted distinction depends, as is known, on whether a relevant difference exists between the groups that received different treatment from the authority.” (HCJ 6758/01 Lifshitz v. The Minister of Defense [2005] IsrSC 59(5) 258, 269; Yekutiel Case, Paragraph 35, 37 of the opinion of President Beinisch). In order to determine that the right of equality has been violated, it is necessary to examine who is the group of equals for the purpose of the matter at hand. The group of equals will be decided according to the purpose of the examined norm and the nature of the matter and the circumstances, as well as in accordance with common social conceptions. (HCJ 8300/02 Nasser v. The Israeli Government, Paragraph 37 (May 22, 2012) (hereinafter, the “Nasser Case”; Neeman Case, Paragraph 18 of my judgment; MQG Case, on p. 677; HCJ 1213/10 Nir v. The Speaker of the Knesset, Paragraph 14 of the opinion of President Beinisch (February 23, 2012) (hereinafter, the “Nir Case”; HCJ 4906/98 “Free Nation” for Freedom of Religion, Conscience, Education & Culture v. The Ministry of Construction and Housing [2000] IsrSC 54(2) 503, 513); Veted Case, on p. 119, 122; Yekutieli Case, Paragraph 36 of the opinion of President Beinisch).

In the case before us, it appears to me that it is possible to say that the right of equality has been violated. As described above, child allowances are universal allowances that are granted to every family according to its composition. Their purpose is to assist in financing the expenses of raising children, and to prevent the family in general and the children in particular from becoming impoverished. Therefore, adding a condition to the receipt of the allowance that is dependent on the vaccination of the family’s children is foreign both to the structure of the allowance and to its purposes. Indeed, the child allowance serves the best interests and welfare of the children, and the assumption is that vaccinating the children is also in their best interests and protects their health. It is still a stretch to say that the condition is naturally integrated with this allowance. The main and natural condition to receiving the allowance is the number of children. Additions and conditions beyond that (apart from conditions such as residency, and without going into the issue of conditioning the allowances on income) would be foreign to the allowance, and therefore violate the right of equality. The fact that the allowances are intended for the best interests of the children also has repercussions for the determination that the right to equality has been violated. In fact, children whose parents decide not to vaccinate them are harmed twice, both by their non-vaccination and by the decision to reduce the allowances intended for their benefit. The equality group, therefore, is all parents who are insured pursuant to the National Insurance Law.

50.The petitioners argue that in principle, the national insurance allowances, the main purpose of which is social-welfare, should not be made contingent upon conditions intended to regulate behavior and achieve other social objectives that do not have a direct and close connection to the allowance granted. They emphasized that the allowances are not a prize for proper behavior. They also raise an understandable concern about the expansion of the conditions to the point of absurdity. Will it be possible to condition the granting of child allowances on the parents not smoking? On maintaining proper nutrition? On installing bars on home windows? Where will the line be drawn between behavior that ought to be encouraged through the conditioning of child allowance and that for which conditioning will not be the correct and constitutional tool? (See the comments of Members of the Knesset at the Finance Committee’s discussion on June 24, 2009).

51.“The main purpose of social insurance is to realize the State’s obligation to ensure a minimum standard of living for all of its residents, so that no person falls below the threshold of a dignified life. Social insurance, and the statutory frameworks intended to realize it, are an important component in realizing the idea of a society based on foundations of justice, equality and social care for the needy.” (Lahav Case, Paragraph 44; Johnny Gal

52.However, our work does not end here. Since we are concerned with primary legislation of the Knesset, it is necessary to examine the issue and ask whether the violation of equality in this case is a violation in the constitutional sense, i.e. whether it amounts to a violation of the right to human dignity enshrined in the Basic Law. “The Knesset has broad discretion in the task of legislation, and there are situations in which broader protection may be afforded against a violation of equality caused by an administrative authority than to one inflicted by the legislator.” (Nasser Case, Paragraph 43). In the MQG Case, an interim model was adopted for interpretation of the term human dignity in the Basic Law:

The interim model does not limit human dignity merely to humiliation and contempt, but it also does not expand it to all human rights. According to this model, human dignity includes those aspects of human dignity which find, in various constitutions, manifestation in special human rights, and are characterized by having, according to our perception, a pertinent and close connection to human dignity (whether at its core or in its margins). According to this approach, human dignity may also include discrimination that is not humiliating, provided that it is closely related to human dignity as expressing the individual’s autonomy of will, freedom of choice and freedom of action, and other such aspects of human dignity as a constitutional right.

(MQG Case, on p. 687). Not every violation of equality, therefore, amounts to a constitutional violation. In order to prove a violation of the constitutional equality, it is necessary to demonstrate that the violation of equality has a pertinent and close connection to human dignity (whether at its core or in its margins). (See also Nir Case, Paragraph 11 of the opinion of President Beinisch; HCJ 9722/04 Polgat Jeans Ltd. v. The Israeli Government (December 7, 2006); HCJ 8487/03 IDF Disabled Veterans Organization v. The Minister of Defense [2006] IsrSC 62(1) 296, Paragraph 23; Nasser Case, Paragraph 44; Lahav Case, Paragraph 76).

53.It appears that the discrimination in this case violates the constitutional right of equality as part of human dignity. The fact that a small group of residents is excluded from the group of all residents with children because of its choice not to vaccinate its children violates the human dignity of this group. The gap created between the two groups creates a sense of discrimination of the latter group, and has a close connection to human dignity. (See, similarly, Lahav Case, Paragraph 92). The violation is comprised of both the lack of respect for the belief or choice of this group not to vaccinate its children for various reasons, and the sense that other parents, whose actions may harm the best interests of their children or the best interests of the public in other ways, continue to receive full child allowances. The sense is that the legislator focused specifically on this group and on this social objective, which is the only one for which a condition is imposed on the child allowances, harming the dignity of the chosen group. (See Nasser Case). The consequence that this reduction has on the distinction between groups of children also contributes to the conclusion that the right of equality has been constitutionally violated.

However, it appears that there is no need to rule on this issue, in light of my conclusion that the above violation satisfies the requirements of the limitation clause. I will proceed, therefore, to examine the violation through the lens of the limitation clause in Basic Law.: Human Dignity and Liberty.

The Limitation Clause

54.It is well known that the right of equality, like other rights, is not an absolute right, and as such it requires a balancing with other rights and interests relevant to the issue in question. This balance is formed in the limitation clause set forth in Section 8 of Basic Law: Human Dignity and Liberty:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

President Barak stated the importance of the limitation clause in the MQG Case:

This provision plays a central role in our constitutional structure. It is the foothold on which the constitutional balance between the individual and the general public, between the individual and society, rests. It reflects the concept d. (See D. Hodgson, Individual Duty Within a Human Rights Discourse (2003)). It reflects the concept that the human rights set forth in Basic Law: Human Dignity and Liberty are not absolute but rather relative. They are not protected to their full scope. The limitation clause emphasizes the concept that the individual lives within the confines of society, and that the existence of society, its needs and tradition, may justify a violation of human rights. (See re. United Mizrahi Bank Case, p. 433; re. Investment Managers Bureau Case, p. 384; APA 4436/02 Ninety Balls – Restaurant, Members Club v. The City of Haifa, PDI IsrSC 58(3) 782, 803 (hereinafter, “re. Ninety Balls Case”) (re. MQG Case, on p. 691-692).

55.The limitation clause contains four conditions, only upon the cumulative fulfillment of which will the non-constitutionality of the prejudicial law be prevented. The first condition is that the violation of the human right was made in or by a law or by virtue of explicit authorization therein. The second condition is that the prejudicial law befits the values of the State of Israel. The third condition is that the prejudicial law is intended for a proper purpose. The fourth condition is that the law violates the right to an extent no greater than is required.

56.There is no dispute that the first condition is satisfied. In addition, the petitioners did not raise claims with respect to the satisfaction of the second condition. Therefore, all that remains is to examine the existence of a proper purpose and the proportionality test.

57.“The purpose of a law that violates human rights is proper if it is intended to achieve social objectives that are consistent with the values of the State in general, and exhibit sensitivity to the place of human rights in the overall social fabric.” (MQG Case, on p. 697). It was further held that the more important the right violated, and the greater the harm, the stronger the public interest needed to justify the violation. (MQG Case, on p. 698-700; Yekutieli Case, Paragraph 44 of the opinion of President Beinisch; Nir Case, Paragraph 19 of the opinion of President Beinisch; Hassan Case, Paragraph 55 of the opinion of President Beinisch). Part of the petitioners’ claims regarding the satisfaction of the proper purpose condition focuses on the violation alone and not on its purpose. In addition, the petitioners argue that the purpose of increasing the vaccination rate is extraneous to the purpose of the allowances and may create a dangerous precedent of reducing allowances on various grounds. As I stated above, I do not believe that every conditioning of allowances is prohibited, and the fear of a slippery slope is a matter for the proportionality test. It appears to me that the purpose of increasing the rate of vaccination among children is a proper purpose which promotes an important social objective of caring for public health in general and children’s health in particular. The purpose underlying the Amendment does not focus only on children that have not yet been vaccinated, but also on additional populations that may be harmed as a result of non-vaccination of such children, including newborn infants whose time to be vaccinated has yet to arrive, populations who are unable to be vaccinated for various medical reasons, a certain percentage of the population whom the vaccination does not protect, despite being vaccinated, etc. As stated above, the diseases against which the vaccines protect might cause serious complications that compromise a person’s health and in rare cases might even cause his death. In this sense, the purpose of the Amendment has a close connection to the right to health and life. Therefore, even if we say that the Amendment seriously violates an important right, the purpose of the Amendment is sufficiently strong and important to justify the violation.

58.I further add that the purpose of the Amendment also expresses the principle of mutual guarantee. A separate question is whether encouraging vaccination could be deemed as a proper purpose if we were concerned only with the best interests of the children who have not yet been vaccinated. However, the purpose does not concern only the best interests of the children who have not been vaccinated or whose parents do not intend to vaccinate them, but the best interests of a broader population, as described above. The non-vaccination of such children may have an effect not only on their health and life, but on the health and life of a broader population. The principle of mutual guarantee, alongside the said purposes, justifies deeming the purpose of the Amendment as a proper purpose. It should be noted that this principle is not extraneous to the National Insurance Law, but rather, as I already mentioned, underlies it, albeit in a different context.

The conclusion is therefore that the proper purpose condition is satisfied. All that remains is to examine is whether the violation meets the proportionality test of the limitation clause.

59.The determination that the purpose of the violating law is proper does not mean that all of the measures taken to achieve it are legitimate. The end does not always justify the means. (Yekutieli Case, Paragraph 47 of the opinion of President Beinisch). The proportionality test was created for this situation. The test is divided into three subtests, all three of which must be satisfied in order to hold that the violation is proportionate. The first subtest is the “compatibility test” or the “rational connection test”. In accordance with this test, a connection of compatibility is required between the end and the means. The second subtest is the less harmful means test. According to this test, the legislator is required to choose a measure which achieves the legislative purpose and which least violates the human right. The third subtest is the proportionality test in the narrow sense. It examines the proper relation between the benefit derived from achievement of the proper purpose and the scope of the violation of the constitutional right.

60.It appears to me that the Amendment satisfies the rational connection test. It should be noted that several means might achieve the end. In addition, there is no need to prove that the means will definitely achieve the end, and a reasonable degree of probability of achieving the end is sufficient. (MQG Case, on p. 706; Hassan Case, Paragraph 59 of the opinion of President Beinisch). It should further be emphasized that there is no requirement that the means chosen achieve the end in full, and partial achievement, not minor or negligible, of the purpose following the use of the means chosen is sufficient. (Nir Case, Paragraph 23 of the opinion of President Beinisch; Hassan Case, Paragraph 59 of the opinion of President Beinisch). Indeed, it is impossible to know for certain whether the Amendment will achieve its objective and whether the percentage of vaccinated persons will rise significantly and create “herd immunity”, or at the very least create a broader protection for the public. However, it is possible to say that there is a sufficiently high probability that such objective will be achieved. The respondents presented data regarding the success of similar programs in countries worldwide and about the support of the World Bank for such programs. (See also Gal, on p. 256-257; report of the Knesset Research and Information Center of June 23, 2009 regarding increasing and conditioning the child allowances). In addition, data was presented regarding a similar program implemented in Israel that made the receipt of maternity allowance contingent upon delivery in a hospital in order to reduce the phenomenon of home births. The respondents report that following this legislation, the number of home births in Israel decreased significantly. Past experience therefore indicates a substantial probability of achieving the objective with this measure. It should also be added that the assumption is that some parents who do not vaccinate their children are not acting based on ideological reasons, and that there is a “free rider problem” whereby parents are in no hurry to vaccinate their children and rely on the vaccination of the entire public to protect their children against outbreaks of diseases. The respondents also indicated the difficulty of late vaccination of children, which the Amendment might solve by incentivizing parents to vaccinate their infants on time. Finally, I note that after the Amendment is implemented and real data collected regarding its repercussions, it will be possible to reexamine the reality created, and it might transpire that this reality does not meet the rational connection test or another proportionality test. (See HCJ 9333/03 Kaniel v. The Israeli Government [2005] IsrSC 60(1) 277, 293).

61.The Amendment, in my mind, the second subtest, the less harmful means test. It should be kept in mind for the implementation of this test that the court does not put itself in the shoes of the legislator, and that it will intervene only when it is convinced that the expected purpose may be achieved through the use of less harmful means –

When examining the severity of the violation and whether there is a less harmful means through which it is possible to achieve the purpose of the legislation, the court does not put itself in the shoes of the legislator. The assumption underlying the test of need is that there is maneuvering space in which there may be several methods for achieving the objective of the legislation, from which the legislator can choose one method. So long as the chosen method is within this maneuvering space, the court will not intervene in the legislator’s decision. The court will be prepared to intervene in the method chosen by the legislator only where it is possible to demonstrate that the harm is not minimal, and that the purpose of the legislation may be achieved through the use of less harmful means.”

(Yekutieli Case, Paragraph 45 of the opinion of President Beinisch). Indeed, there is a range of means for achieving the purpose of encouraging vaccination. Some of these means are more harmful than the means adopted by the legislature, and therefore are irrelevant for the purpose of the test in question. This is the case with respect to criminal sanctions on anyone who fails to vaccinate his children, as proposed by some of the petitioners, and for denying school attendance for those who cannot provide confirmation of vaccination, as is done in the United States. (James G. Hodge & Lawrence O. Gostin, “School Vaccination Requirements: Historical, Social and Legal Perspectives” 90 Ky. L.J. 831 (2001-2002)). It should further be emphasized that the economic sanction used in the Amendment is very similar to the denial of a benefit, since in the majority of cases, the reduction that will be made in the child allowance of parents who have not vaccinated their children is equal to the increase in the child allowances in the same Amendment. The petitioners refer to additional means that concern informational activities and increasing accessibility to Family Health Centers. With respect to informational activities, this is certainly an appropriate means, but it is included and precedes implementation of the Amendment itself. The respondents stated that a campaign is planned for informing the population about the law, in which the importance of vaccination will also be emphasized. Obviously, the sanction of reduction of child allowances will not be used against those who are convinced by the informational activity and vaccinate their children. Therefore, the informational means is also incorporated into the means chosen. The concern, of course, is that the informational means are insufficient in view of the vaccination “market failure,” whereby, as aforesaid, a child who is not vaccinated may be protected against the outbreak of diseases due to the vaccination of the population around him, but this failure may cause the non-vaccination of a certain population, which will cause the outbreak of an epidemic therein.

62.Regarding the accessibility of the Family Health Centers, this difficulty pertains to the Bedouin population in the Negev, and mainly to the population of the unrecognized villages in the Negev. Due to this difficulty, which the respondents recognize, the implementation of the Amendment was postponed in order to make arrangements and increase the accessibility of Family Health Centers to this population. However, the steps specified in the respondents’ response are satisfactory with respect to the level of accessibility achieved and the efforts being made to further increase it. The respondents report that there are currently forty-five Family Health Centers spread throughout the southern district, twenty-five of which service the Bedouin community: thirteen centers in permanent settlements, eight portable centers for the Bedouin villages, and centers in the Jewish settlements which also service the Bedouin population. There is also a special mobile family health unit to provide vaccinations for the Bedouin population. This mobile unit travels every day through a different location in the unrecognized villages and is intended to vaccinate children of families who have not visited Family Health Centers. The unit is operated five times a week between 8:00 and 16:00. Three centers in Bedouin settlements which were closed have been reopened and a petition filed on the matter was dismissed with consent. (HCJ 10054/09). The respondents are also working to encourage hiring of male and female nurses for Family Health Centers in the south and in the Bedouin settlements. To this end, it was decided to increase the financial incentive for such personnel, to add administrative personnel and security positions for the centers, and to add positions to make the services accessible to the population that finds it difficult to come to the centers. In June 2011, an incentive plan was formed for the personnel of the Family Health Centers in the Bedouin sector in the south of Israel, including payment of an encouragement bonus, payment of a persistence bonus, reimbursement for rent in certain cases, consideration for travel time to and from work, increased overtime pay, and provision of a mobile telephone to nurses. The respondents further state that mediators are brought in to make the services culturally accessible, and their role includes providing information about the importance of early registration with a Family Health Center. A special program financed by the Ministry of Health was established at Ben-Gurion University to train nurses from the Bedouin sector. The program’s students undertake to work in the Bedouin sector upon completion of their studies.

The current data regarding vaccination of the Bedouin population in the Negev with the MMRV vaccine should also be taken into account. According to the data, the vaccination rate for this vaccine in the Bedouin population is higher than in the Jewish sector, the rate in the unrecognized villages is 90%, and in the permanent settlements 93.5%.

It therefore appears that the less harmful means for achieving the purpose of encouraging vaccination have been exhausted, and the next step on the ladder for achieving the purpose may be at the economic level, as was done in the Amendment. The second subtest is therefore also satisfied.

63.The last question that we must ask is whether we ought to go one step further on the ladder, after previous steps have not yet achieved the desired objective. This is an ideological question, which is based on principles of balance and examines the relationship between the benefit in achieving the proper purpose and the damage that will be caused by the violation of human rights. (See MQG Case, on p. 707; Hassan Case, Paragraph 69 of the opinion of President Beinisch). In my opinion, the Amendment also satisfies this test. We should not disregard the harm that will be caused to parents who do not wish to vaccinate their children, who will be discriminated against compared to the group of child allowance recipients and will either need to be satisfied with a reduced allowance or act against their will and vaccinate their children. There is also difficulty in the distinction that may be created between strong groups in the population which can allow themselves to waive part of the child allowance in order to realize their desire not to vaccinate their children and weak groups which will be forced to choose between aggravated poverty and waiving their desire not to vaccinate their children. Conversely, consideration should be given to the fact that the violation of equality in this case is not arbitrary and is not based on any suspect distinction between different sectors. In addition, the harm was limited to reduction of the child allowance, and was also limited to a maximum amount that can be reduced. Further arrangements in the Amendment, including a right of appeal, prior notice, and increasing the allowances after vaccination also support the proportionality of the violation. On the other side is the benefit, as I have already stated, that may be significant and important to the health of those children who have not yet been vaccinated, and more importantly, to the public at large. The effect of each and every individual on the public justifies a balance which harms the individual to a limited and restricted extent for the benefit of the public. It is impossible to ignore that the individual lives within society and sometimes his acts or omissions impact the society around him:

A person is not solitary individual. The person is a part of society. (HCJ 6126/94 Sanesh v. The Broadcasting Authority, on p. 833). A person’s rights are therefore his rights in an organized society; they concern the individual and his relations with others. (HCJ 5016/96 Chorev v. The Minister of Transport, on p. 41). Hence, a person’s dignity is his dignity as a part of society and not as an individual living on a desert island. (Cr.M 537/95 (hereinafter, “Cr.M Ganimat”), on p. 413; LCA 7504/95 Yassin v. The Registrar of Political Parties, on p. 64; HCJ 7015/02 Ajuri v. The Commander of the IDF Forces in the West Bank, on p. 365)” (hereinafter, the “CPSJ Case, on p. 496-497).

A balance is therefore required between the rights of the individual and the best interests of society, a balance, which in my opinion, is proportionate in the case at bar, and within the bounds of proportionality afforded to the legislator.

Conclusion

The constitutional examination of the Amendment to the National Insurance Law revealed that the Amendment indeed violates the right of equality enshrined in the Basic Law: Human Dignity and Liberty. However, this violation satisfies all of the terms of the limitation clause, such that a proper balance is struck with other rights and interests. Hence, the Amendment is proportionate and this Court will not intervene. I will mention that this Court does not examine what it would have done in the legislator’s shoes and what its preferences would have been in such a matter, but merely examines whether the legislator’s choice is within the boundaries of the range of proportionality available to the legislator. (See HCJ 1715/97 The Bureau of Investment Managers in Israel v. The Minister of Finance, [1997] IsrSC 51(4) 367, 386). I mentioned that most of the reduction in the child allowances will be executed simultaneously with the increase in the allowances set in the Amendment. I further noted the importance attributed to the vaccination of the children, not only for the health of the children themselves, but also for the health of the environment, society and the public. Thus, the conclusion I have reached is that the violation resulting from the Amendment satisfies the conditions of the limitation clause and therefore, the petition should be denied. I did not see fit to an order for costs.

If my opinion is heard, the petition will be denied and as aforesaid, there will be no order for costs.

Justice D. Barak Erez

The petitions before us raised fundamental issues pertaining to the manner in which the State fulfills its responsibility for the health of the public in general and the welfare of children in particular. They also raised the basic issue of conditioning rights and eligibilities. In general, I concur with the comprehensive opinion of my colleague, Justice E. Arbel, and I too believe that the petition should be denied. Nevertheless, I wish to clarify my position with respect to some of the reasons that support this conclusion.

The Legal Issues

In fact, the discussion of the issue that has been placed before us—conditioning a part of the child allowances on the children’s vaccination within an amendment to a law—raised several secondary issues. The first question concerns the examination of the essence and legal status of the child allowances, the conditioning of which is at the center of our discussion. Specifically, the question in this context is whether the eligibility for child allowances is an “ordinary” legal right, conferred merely by a law, or whether it constitutes a manifestation of constitutional rights. Insofar as the argument is that the child allowances embody constitutional rights, it is necessary to examine what is the constitutional right they represent. This question is important because the violation of a constitutional right is not tantamount to the violation of a legal right that does not enjoy a super-statutory status. The second question revolves around the essence and purpose of the condition for granting the allowance: the requirement to vaccinate the children as infants. As part of this question, it is necessary to examine what is the purpose of the vaccination requirement is and whether there is a link between this purpose and the objective of the child allowances. The third question focuses on the legal regime that applies to the conditioning of rights. This question is related to the first question, since the conditioning of legal rights and the conditioning of constitutional rights should not be addressed in the same manner. The fourth question is whether the distinction that was made in legislation between parents who vaccinate their children and parents who do not amounts to a violation of the constitutional right of equality. The fifth question, derived from the former questions, is how the above normative scheme affects the constitutional judicial review of the amendment to the law, in accordance with the constitutional tests of the limitation clause in the Basic Law: Human Dignity and Liberty.

Child Allowances: History and Purpose

As we mentioned, the first question with which the discussion should begin revolves around the essence and objective of the child allowances, as were set in the National Insurance Law. (5755-1995 (hereinafter, the “National Insurance Law”). Because the basis for a discussion on constitutional review of the validity of a law is the status of the right violated, we should begin and by examining if, and to what extent, the eligibility to receive a child allowance is a right that enjoys constitutional protection.
My colleague, Justice Arbel, articulated the purpose of the child allowances as part of the fabric of Israel’s social legislation. To this I would like to add a review of the historic development of the arrangements in the field, a development that sheds light on the ongoing use of the child allowances as a tool for promoting of social policies.
In general, the child allowances were subject to many changes from the time they were first introduced in the format of legislation until the regulation thereof in our time. Generally speaking, a clear process of strengthening the universal element in granting the allowances can be pointed out. The intention is to grant child allowances to each and every family for each of its children, without taking into consideration economic data or other distinguishing criteria (distinct from past practice when they were only granted to some families or some children based on distinguishing criteria).
Before the establishment of the State, payment to parents for their children was made in the form of an increase to the employees’ salary. (See Johnnie Gal, Social Security in Israel, 97 and 102 (2004) (hereinafter, “Gal”)); Abraham Doron “Policy on Child Allowances in Israel” Spotlight on Social Policy Series 1, 2 (2004) (hereinafter, “Doron, the “Allowances Policy” ”)).
After the establishment of the State in 1950, the Kanev Committee submitted the Inter-Ministerial Report on Social Security Planning (1950), which included reference to a “children’s grants” plan (See Abraham Doron, In Defense of Universalism –The Challenges Facing Social Policy in Israel, 128-129 (1995) (on the report and its importance)). The report determined that this plan would only be implemented in the last stage of the introduction of social insurance in Israel because its performance was not economically feasible in the immediate future. Nevertheless, striving to increase the birth rate in Israel, the then prime minister, David Ben-Gurion, introduced a monetary prize to families with ten children and more. (Gal, on p. 103). Starting from the early 1950’s, proposals were made to grant allowances, and in the second half of that decade, the government began to demonstrate preparedness to consider the idea. (Meir Avizohar, Money to All – The Development of Social Security in Israel 67 (1978) (hereinafter, “Avizohar”)).

The first piece of legislation that dealt with child allowances was adopted in 1959 as an amendment to the National Insurance Law. (National Insurance Law (Amendment) (No. 4), 5719-1959 (hereinafter, “Amendment 4”)). The initiator of the legislation was the Minister of Labor, Mordechai Namir (hereinafter, “Namir”). In the background was a mass immigration from Middle Eastern countries that included large families whose breadwinners did not, at the time, adequately integrate into the labor market. The legislative initiative was thus derived from the social-economic gap created between the immigrant families and long established families in Israel, which were characterized by a smaller number of children on average. (Knesset Minutes 27, 2693-2642 (1959); Giora Lotan, Ten Years of National Insurance – An Idea and its Fulfillment 38 (1964)). Some argue that the Wadi Salib events in 1959 were a material catalyst to the enactment of the law (Gal, on p. 103, Avizohar, on p. 68-70) and this appears to have partial support in a discussion that was held in the Knesset (Knesset Minutes 27, 2642 (1959)). More generally, it can be said that the payment of the allowances was the first stage of a process that increased the involvement of the National Insurance Institute in reducing poverty and economic and social gaps in the population. (Ester Sharon, The Child Allowances System in Israel: 1959-1987 Where did it come from and where is it going? 3 (1987) (hereinafter, “Sharon”)).
The allowance payments were consistent, in principle, with the basic principles of national insurance in Israel, in the sense that they were granted on a universal basis, independent of income level. However, the allowance was initially granted only to families with at least four children, and only for children under the age of fourteen. (Michal Ophir and Tami Eliav, Child Allowances in Israel: A Historical View and International Perspective (2005) (hereinafter, “Ophir and Eliav”)). Minister Namir explained that these conditions were imposed for budgetary reasons, and that the aspiration was to lay down an infrastructure that would be expanded gradually. The deliberations on the scope of Amendment 4 were not particularly heated despite reservations on its small scope. Knesset Members supported Amendment 4 and expressed their hope that the terms of eligibility would be expanded in the future, and that it would presently succeed in encouraging births, eradicating poverty and enforcing equality among the various groups in Israeli society. (Knesset Minutes 27, 2667-2680 (1959)).
In 1965 the child allowances were expanded in several respects. First, the allowances were paid for all minor children, with no age distinction (that is, until the age of 18). Second, the allowance paid by the National Insurance Institute was accompanied by an employees’ children allowance that was only paid to salaried employees by their employers for their first three children, and was financed by the National Insurance Institute. Therefore, this allowance, unlike the regular child allowance, was deemed as taxable income. (See: The National Insurance Law (Amendment Number 12), 5725-1965, Statutes 461, 208; The National Insurance Regulations (Employees’ Children Allowance) (Part-Time Employees and Employment Seekers), 5725-1965 which were promulgated by virtue of Sections 31K and 115 of the National Insurance Law, 5714-1953; Gal on p. 103). In addition, in the early 1970s, an additional allowance was introduced for families with four or more children, if a family member served in the security forces (hereinafter, the “Military Veterans Allowance”). This payment was made directly from the National Insurance Institute and was exempt from tax. (Regulations on Grants to Soldiers and their Families, 5730-1970, Regulations 2605, 2180, promulgated by virtue of Section 40(B1)(2) of the Discharged Soldiers Law (Reinstatement in Employment), 5709-1949). In 1975, this payment was expanded to also apply to families with three children. (Regulations on Grants to Soldiers and their Families (Amendment), 5735-1975, Regulations 3298, 1001). Over the years, payments were also made to additional families, who did not fulfill the statutory condition of a military service; ultra-orthodox families received additional payments from the Ministry of Religion and families of new immigrants received such payments from the Jewish Agency. (Gal, on p. 104; Eliav and Ophir, on p. 5-6; Yoram Margaliot “Child Allowances” Berenson Book, Second Volume – Beni Sabra 733, 745 footnote 40 (Editors, Aharon Barak and Haim Berenson, 2000) (hereinafter, “Margaliot”)).
We can therefore summarize that in general, in the first half of the 1970’s, financial support was provided to relatively large families in several formats: first, universal child allowances were given by the National Insurance Institute; second, additional allowances were given in the Jewish sector to families for their children (whether Military Veterans Allowances or other allowances); third, employees’ children allowances were paid to salaried employees by their employers, and were taxed. These mechanisms were added, of course, to other welfare payments to which the families were eligible based on their individual economic condition. Additionally, families with a relatively high income enjoyed tax benefits which took the family size into consideration. However, this benefit was only enjoyed by families with a relatively high income, whose income was taxed. The incompatibility at the time between the various benefits and the understanding that families with many children constitute a more impoverished group together were a catalyst to a reform in the system. (The National Insurance Bill (Amendment Number 12), 5733-1972, Government Bill 1022, 30; The Amendment to the Income Tax Ordinance Bill (Number 18), 5733-1972; The Government Bill 1022, 31; The National Insurance Law (Amendment Number 12), 5733-1973, Statutes 695, 142; Raphael Rotter, The Reform in Child Allowances in Israel (1972); Arieh Nitzan, Twenty Years of National Insurance in Israel (1975) (hereinafter, “Nitzan”)).
The policy with respect to allowances underwent further turmoil following the recommendations of the Ben-Shahar Committee on the subject of the income tax reform in 1975. (Report of the Committee for Tax Reform – Recommendations for Changes to the Direct Tax, 25A-26A (1975)). Pursuant to the committee’s recommendations, the double treatment of the child allowances—within tax law and national insurance law—was discontinued, and it was decided to grant tax-free allowances on a universal basis to all families of salaried and non-salaried employees for all children in the family, starting with the first child, until they reach the age of 18. (National Insurance Law (Amendment Number 17), 5735-1975, Statutes 773, 152; Sharon, on p. 9-11).
The trend of expanding eligibility changed in the 1980’s to the desire to reduce public expenditure. The scope of allowances was reduced. In addition, the child allowances for the first two children, in families of up to three children with a marginal tax rate on the main breadwinner’s salary of at least 50%, were taxed. (Amendment to the Income Tax Ordinance (Number 59) Law, 5744-1984, Statutes 1107, 64; Sharon, on p. 11-12). In 1985 a tax was also imposed on the child allowance for the third child in families with up to three children and the marginal tax rate was reduced. In addition, the universal payment of the child allowance for the first child was revoked, except for low-income families. (The Arrangements Law for an Emergency in the State Economy, 5746-1985, Statutes 1159, 20; Sharon, on p. 12-13). The 1985 arrangement was supposed to remain in effect for only one year, but it “survived” (with various changes pertaining to the income test’s threshold amount) until 1993. (Ophir and Eliav, on p. 8; Sharon, on p. 12-13).
The pendulum swing child allowances policy continued in full force in the 1990’s. At first, the trend of reducing the universality which characterized the granting of the allowances at the end of the last decade continued, and the eligibility of small families not defined as “in need” was significantly reduced. Later, the trend was one of expansion, while strengthening universality in granting the allowances. In this decade, the following changes occurred: the conditioning of eligibility for the allowance on the family size was revoked; the Military Veterans Allowances were gradually cancelled; the allowances for large families were gradually increased. (The Arrangements Law for an Emergency in the State Economy (Amendment Number 15), 5750-1990, Statutes 1328, 188; The Arrangements in the State Economy Law (Legislative Amendments), 5751-1991, Statutes 1351, 125 (Indirect Amendment to the Arrangements Law for an Emergency in the State Economy, 5746-1985); The Income Tax Law (Temporary Order), 5753-192, Statutes 1407, 22 (Indirect Amendment to the Arrangements Law for an Emergency in the State Economy, 5746-1985); The Arrangements in the State Economy Law (Legislative Amendments for Attaining the Budget Goals), 5754-1994, Statutes 1445, 45 (Indirect Amendment to the Discharged Soldiers Law (Reinstatement in Employment), 5709-1949); Dalia Gordon and Tami Eliav “Universality v. Selectivity in the Granting of Child Allowances and Results of Performance Limitations” 50 75, 78 Social Security (1997) (hereinafter, “Gordon and Eliav”)).
The turmoil continued, even more forcefully, in the following decade. In 2001, the child allowance rate for large families was significantly increased—starting with the fifth child. However, shortly thereafter, a gradual cutback began in all allowances, including the child allowances, in order to reduce public expenditure. Another fundamental change that occurred in this period was equalizing the allowance given for each child in the family, irrespective of his birth order. At the same time, the attempt to reinstate the Military Veterans Allowances failed. (See Doron “The Allowances Policy”, on p. 4; Abraham Doron “Multiculturalism and the Erosion of Support for the ‘Welfare State’: The Israeli Experience” Studies on the Revival of Israel 14 55, 63-64 (2004)); Knesset Research and Information Center, Child Allowances in Israel: A Historic Review – an Update 8 (2008)).
The issue before us is related to an additional stage in the development of the policy on child allowances within Amendment No. 113 of the National Insurance Law, which was enacted as part of the Economic Streamlining Law. (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009 (hereinafter, the “Amendment”)). As part of the Amendment, the allowances for the second, third and fourth child in the family were gradually increased by 100 shekel per month for each child, and eligibility to receive the full amount of the allowance was made contingent on the vaccination of the children.
This short historical review of the eligibility for child allowances reveals several important things. First and foremost, it demonstrates how eligibility for child allowances has always served as a platform for the promotion of national public objectives (for example, the encouragement of births and reduction of social gaps), which go beyond the narrower purpose of supporting the family’s finances. For example, in a discussion held in the Knesset on Amendment 4, which gave rise to the child allowances for the first time, Minister Namir stated the following:

The law was intended to achieve three goals that are social demographic and economic in nature: a) to ease the difficulties in the social condition of weak parts of society; b) to stop signs of negative trends in our demographic development c) to remove several errors and anomalies in the field of employment and distribution of wages in the factories, in relation to the employees’ family status.” (Knesset Minutes 27, 2639 (1959)).

The legislative history also demonstrates the fact that over the years, the child allowances expressed a different and changing welfare policy. In other words, the tool remained one, but into it were cast various objectives, or at least secondary objectives. The goal of reducing poverty among children hovered, throughout the year, over legislation concerning the child allowances indirectly and directly. However, in each of the periods reviewed, alongside the purpose of eradicating poverty stood additional purposes. In fact, even Amendment 4, which gave birth to the child allowances, was intended to provide a response, according to its legislators, to demographic data regarding births in Israel. An additional purpose at the time was bridging the social gaps created between various groups of immigrants in order to promote their integration in Israel.
The recurring oscillation between the expansion of eligibility for allowances for small families, and its reduction for large families, marks the tension between the perception that, in general, the State’s role is to contribute towards the cost of raising children ,together with their parents (Doron “The Allowances Policy”, on p. 2), and the perception that child allowances provide a way to fulfill other roles the State has taken upon itself, such as reducing unemployment and gaps in society and encouraging births. (Margaliot, on p. 734-754). In practice, we have learned that child allowances constituted, throughout the years, a means of realizing various social and economic goals that were placed at the top of the political agenda in each period. For our purposes, it is important to note the following information: child allowances are supposed to promote the welfare of families raising minor children. However, the child allowances are not paid in correlation with the family’s economic situation (and in this they differ from income assurance payments). (Compare: HCJ 5578/02 Manor v. The Minister of Finance [2004] IsrSC 59(1) 729 (hereinafter, “Manor Case”), in which former President A. Barak referred to the old-age pension and held that unlike the income assurance allowance, this one is not intended to guarantee a dignified minimal existence). At most, it might be said that they are provided according to the estimated needs of families raising children. (Compare: Abraham Doron, The Welfare State in an Age of Change 72 (1987)). Additionally, the purpose of promoting the economic welfare of families who are raising children is not the sole purpose of the allowances.
Thus, it can be determined that in view of the many aspects of eligibility for child allowances, as well as the changes it has undergone through the years, the objective of the allowances is a broad objective of striving to promote the welfare of the children in the Israeli society, as well as to promote the social policy of the government at a given time. This insight is important in continuing the discussion on the legal status of the allowance.

Child Allowances: Legal Rights or Constitutional Rights

Child allowances are currently given by virtue of a law—the National Insurance Law. Does the right to receive child allowances as it they are granted today constitute an exercise of a constitutional right? Like my colleague, Justice Arbel, I too believe that it was not proven before us that this is correct at this time.
The ruling on this issue is relevant to the continuation of the constitutional examination process, since the conditioning of the legal means for exercising the constitutional right is not tantamount to the conditioning of the constitutional right itself. Indeed, without legal means for exercising the constitutional right, the right may remain as an empty normative shell, void of content. There may certainly be situations where either the conditioning or denial of the means to fulfill the constitutional right will amount to a violation of the right itself. However, this should be examined in each and every case. This can be compared to a two-story building: on the upper floor is the constitutional right itself; on the lower floor are the means for its fulfillment. Too severe of an injury to the foundations of the lower floor, by conditioning or otherwise, will result in harm to the upper floor, the floor of the constitutional right, and undermine protection. Thus, the question is whether the petitioners have successfully shown that conditioning eligibility for child allowances amounts to a violation of a constitutional right. Additional examples that illustrate the importance and relevance of this distinction can be found in case law regarding the violation of the right of access to the courts. For example, it has been held that a person does not have a vested right to exercise the right of access to the courts through a specific procedural proceeding. Therefore, limiting the ability to file a class action does not necessarily amount to a violation of the right of access to the court. (See and compare: HCJ 2171/06 Cohen v. The Chairman of the Knesset, paragraphs 21 and 24 (August 29, 2011)).
Child Allowances and the Right of Dignity – Indeed, this Court’s rulings have repeatedly emphasized that the protection of the right to a dignified human existence falls within the scope of the protection of the right of human dignity enshrined in the Basic Law: Human Dignity and Liberty, and that its protection is identical to the protection given to the other basic rights. (HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, [2005] IsrSC 60(3) 464, 482-484; HCJ 10662/04 Hassan v. The National Insurance Institute (February 28, 2012), paragraphs 34-36 (hereinafter, “Hassan Case”)). However, a distinction should be drawn between the constitutional right and the legislative and administrative means that are used for its fulfillment. The right to dignified human existence does not have to be fulfilled through the payment of child allowances, and in the present legal situation it is not even clear that this is the purpose for which they are paid. As a matter of policy, and in order to promote various national public objectives, the Israeli legislature has chosen to provide for the welfare of families with children, irrespective of their economic situation.
In legislative conditions in which the State does not provide a means of existence for weakened populations, payment of child allowances may, de facto, guarantee their dignified existence. Nevertheless, at this time, it has not been proven to us that eligibility to receive child allowances was intended to maintain a dignified human existence or that it is essential to its protection, and therefore, under these circumstances, conditioning the eligibility is not in itself conditioning of a constitutional right. Nothing in the aforesaid negates the possibility to prove that, in a specific case, or following other changes in the welfare system in Israel, cutbacks in child allowances will violate the rights of individuals to basic conditions of a dignified existence. As mentioned, this has not been argued before us and was consequently not proven. It should be added that Section 68(c) of the National Insurance Law orders an increase in the regular child allowance payment for the third and fourth child when the parent is eligible for an income assurance allowance or support payments through National Insurance, but the amendment to the law before us has no ramifications on this special increment and does not derogate therefrom.
Child Allowances and the Right to Property – The petitioners also argued that the eligibility for child allowances is a property right protected by the constitutional protection of property under the Basic Law: Human Dignity and Liberty, through application of such protection to “new property.” Indeed, through the years, the term “property” has been attributed a broader and more realistic understanding. Currently, rights vis-à-vis the State (the right to a license, the right to an allowance) are no less important to a person’s financial situation than classic rights of property, and their importance may even exceed that of classic property rights, as demonstrated by the scholar Reich in his classic article on the issue. (Charles Reich, New Property, 73 Yale L. J. 733 (1964)). The legal protection of new property was also recognized in the judgments of this Court. (See HCJ 4806/94 D.S.A. v. The Minister of Finance, [1998] IsrSC 52(2) 193, 200-202; HCJ 4769/95 Menachem v. The Minister of Transport [2002] IsrSC 57(1) 235, 275), which also recognized certain welfare allowances as new property (Manor Case, on p. 739). However, recognizing rights vis-à-vis the State as property cannot be identical in all characteristics to the protection of traditional rights of property. When the State wishes to expropriate a plot of land owned by a person it is a violation of property that requires constitutional justification and is required to satisfy the tests of the limitation clause. It would be improper to apply precisely the same legal regime to a situation in which the State is seeking to reduce eligibility given to a person by the State treasury. The eligibility for child allowance payments for example, expresses, inter alia, the economic and social policy in place at the time the eligibility was granted. Adopting the approach that the scope of eligibility for an allowance as it was set in the past has become a property right in its classical sense, would lead to the conclusion that the State is very limited, more than it should be, in the possibilities available to it to change its social and economic policy. (Compare: Daphne Barak Erez, Administrative Law, Volume A, 50-52 (2010) (Barak Erez, Administrative Law); Daphne Barak Erez, Citizen-Subject-Consumer – Law and Government in a Changing State 32-33 (2012) (hereinafter, “Barak Erez, Citizen-Subject-Consumer”). This perception is contrary to the democratic perception to practical needs, and to the justified recoiling from “sanctifying” the status quo (which occasionally may also reflect unjustified bias toward strong groups that acted in the past to enact laws that benefitted them). Obviously, if the eligibility for child allowances was required for the protection of dignified human existence, this would have been a good reason to impose restrictions on its reduction. In addition, rights to receive allowances from the State must be protected in that they must be granted equally and changes to them must take into consideration legitimate reliance upon them. Furthermore, there may be room for additional distinctions such as a distinction between an allowance based on an insurance mechanism or a feature of savings via mandatory payments that were made over the years (such as an old-age pension; see Manor Case, on p. 739), and an allowance that was granted in the form of a one-time grant (compare Daphne Barak Erez “The Defense of Reliance in the Administrative Law” Mishpatim 27, 17 (1996); HCJ 3734/11 Haim Dudian v. The Knesset of Israel, paragraphs 24-25, (August 15, 2012)). In any event, the argument that “what was will be”, in itself, cannot be sufficient.
To emphasize further, holding that there is no constitutional right to receive support from the State in the form of child allowances, does not mean that this eligibility is not significant. Moreover, once the State has chosen to pay child allowances under law, it is required to do so in a manner that complies with constitutional standards and in this context to ensure, among other things, that payment of the allowances will be made equally and indiscriminately (as distinct of course, from the setting of legitimate conditions to the receipt of the allowances), as will be explained below.
As Justice Arbel mentioned, the argument regarding violation of rights was also raised before us with a special emphasis on an alleged violation of the rights of the children for which the allowances are to be paid, separately from their parents’ rights. This argument is supported by the current perception that recognizes children’s rights and does not merely support a paternalistic protection of their interests. (Compare: CA 2266/93 John Doe, Minor v. John Doe [1995] IsrSC 49(1) 221, 251-255; Yehiel S. Kaplan “The Child’s Rights in Israeli Case Law – The Beginning of the Transition from Paternalism to Autonomy” Hamishpat 7 303 (2002)). This development is indeed very significant. Nonetheless, under the circumstances of this case, it cannot change the framework of the discussion. First, it is important to note that the distinction between the rights of children and protecting their best interests without asking their opinion is important in situations where it is possible to consider the child’s autonomy of will. However, our case focuses on young infants who, undisputedly, cannot take an autonomous and rational stance on the question of whether to be vaccinated. It should be emphasized in this context that the statutory scheme explicitly orders the continued payment of the allowance even if the children were not vaccinated, once the early infancy period proper for vaccination passes. Second, the petitioners’ argument regarding the amendment’s violation of the child’s rights was made generally without stating which of the rights has been violated. The discussion we conducted clarifies that the contingent reduction of the child allowances does not violate, in itself, a constitutional right, including constitutional rights of children (unless it will be invalid for another reason, such as discrimination, an issue that will be examined separately below). To a certain extent, the argument of a violation of the children’s rights in this case wishes to repeat the argument regarding the violation of the parents’ autonomy to make decisions with respect to their children’s best interests. This tension frequently underlies decisions on the best interests of children and repeatedly arises, for example, in relation to decisions regarding the children’s education. (Compare: Yoram Rabin, The Right of Education 121-124 (2002)).

The Objective of the Vaccination Requirement: Between Rights and the Public Interest

Based on all that has been said thus far with relation to the legal status of the child allowances and the objective underlying them, it is necessary to address the second question regarding the objective of the Amendment that conditions part of the eligibility for the allowance on vaccinating the children.
The policy on the vaccination of young children is currently considered a very important tool in the protection of children’s health – both from the aspect of each child’s right to good health and the aspect of the public interest in eradicating epidemics which claimed many victims in the past. (See for example: David E. Bloom, David Canning & Mark Weston, The Value of Vaccination, 6 World Economics 15 (2005); Saad B. Omer and others, Vaccine Refusal, Mandatory Immunization, and the Risks of Vaccine-Preventable Diseases, 360(19) New England J. Medicine 1981 (2009)). The State of Israel has excelled since its establishment in operating Family Health Centers, which were an important element in ensuring the population’s health. This public health operation ensured the vaccination of children, for their benefit and for the benefit of the population as a whole.
Through the years, criticism was voiced against the sweeping policy of child vaccination. Some parents refrain from vaccinating their children for various reasons—both because of a belief that vaccinations are dangerous to children’s health and because of a position that prefers “natural” immunization, acquired over the years via “natural” contraction of diseases. So long as those refraining from vaccinations are a minority, choosing this alternative is ostensibly a rational alternative for the relevant persons because of the effect known as “herd immunization;” that is, the phenomenon wherein those who are not vaccinated are in fact protected from contracting diseases when most of the people around them are properly vaccinated. Thus, there is a risk of free riders here, and if it increases it may eventually compromise “herd immunity,” which weakens as the rate of non-vaccinated persons rises. In fact, the decision to vaccinate has characteristics of the “prisoner’s dilemma:” it is a decision that must be made in conditions of uncertainty with regard to the acts of others, and whose benefit from the perspective of the individual also depends on the behavior of such others. Individuals facing the decision whether to be vaccinated will always tend not be vaccinated (provided that others are being vaccinated), purely out of promotion of self-interest. This is a classic case of a “market failure” that justifies intervention. (See also Christine Parkins, Protecting the Herd: A Public Health, Economics, and Legal Argument for Taxing Parents Who Opt-Out of Mandatory Childhood Vaccinations, 21 S. Cal. Interdisc. L. J. 437 (2011)). De facto, there is a decline in child vaccination. The professional opinion of the Ministry of Health, supported by clear professional opinions on the matter, is that the decline in child vaccination constitutes a health risk, both to the children themselves and to the population as a whole (due to the risk of contracting diseases from children who were not vaccinated and later contract serious diseases).
The new Amendment to the law was intended to provide a response to the problem presented above. This problem is also present in other countries, and a spectrum of responses to situations of non-vaccination of children can be pointed to. (See in general: Daniel Salmon and others, Compulsory Vaccination and Conscientious or Philosophical Exemptions: Past, Present and Future, 367 Lancet 436 (2006)). Among the well-known examples, the United States and France represent a rigid approach to the enforcement of the vaccination obligation. In France, the Code of Public Health (Code de la Sante Publique) states that parents and guardians of children are personally responsible for their vaccination, and proof of proper vaccination must be presented upon the child’s acceptance to an educational institution. (Section L3111-2 of the code). Alongside the aforesaid obligation, criminal sanctions of up to six months imprisonment and a fine were set forth. (Section L3116-4 of the code). A mandatory vaccination policy is also common in the United States. The means employed, as well as the scope of the limited exemptions granted on religious freedom or freedom of conscience grounds, vary between the different states, as these issues are regulated on a state, and not a federal, basis. However, it appears that a central means used is the imposition of a limitation on the enrolment of children in schools when they are not vaccinated in accordance with the basic vaccination plan, because of the concern that others will be infected. Constitutional petitions that challenged laws that imposed vaccination obligations were rejected, based on the recognition of the importance of vaccinations to public health. (See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (a general discussion of the vaccination obligation); Zucht v. King, 260 US 174, 176-77 (1922) (a specific discussion on the conditioning of school enrollment on vaccination). Alongside the aforesaid, additional sanctions were used over the years, including setting a statutory vaccination obligation whose violation entails a fine and cutbacks in municipal education budgets. In the city of New York, for example, it was decided to impose fines on schools that accept unvaccinated children, even when they fall within one of the exceptions that allow parents not to vaccinate their children. The fine is imposed for each day in which an unvaccinated child was present on school grounds. In this manner, the city of New York wished to create an incentive for parents to vaccinate their children, since failing to do so compromises the school’s budget and the level of education it is able to provide. (See further: Alan R Hinman, Walter A Orenstein, Don E Williamson & Denton Darrington, Childhood Immunization: Laws That Work, 30 J. L. Med. & Ethics 122, 123 (2002); Gary L Freed, Victoria A Freeman & Alice Mauskopf, Enforcement of Age-Appropriate Immunization Laws, 14(2) Am. J. Prev. Med. 118 (1998); D. Isaacs, H. A. Kilham & H. Marshall, Should Routine Childhood Vaccinations be Compulsory?, J Pediatr. Child Health 40(7) 392, 395 (2004); Anthony Ciolli, Religious & Philosophical Exemptions to Mandatory School Vaccinations: Who Should Bear the Costs to Society?, 74 Mo. L. Rev. 287 (2009); Ross Silverman, Litigation, Regulation, and Education – Protecting the Public's Health through Childhood Immunization, 360(24) New England J. Medicine 2500 (2009)).
Unlike in the United States, there is no norm of mandatory vaccination as a condition to the acceptance of children to school in Canada. In fact, only two provinces of Canada, Ontario and New Brunswick, have a statutory vaccination requirement. Nevertheless, an inspection of the education legislation of Ontario shows that alongside the requirement to vaccinate children as a precondition to their enrollment in the education system, a fine of up to $1,000 is also imposed on parents who fail to vaccinate their children. (Education Act, SNB 1997, c E-1.12, s 10; Immunization of School Pupils Act, RSO 1990, c I.1, s 3-4).
A different approach prevails in Australia, where monetary incentives are given to parents who respond to the vaccination plan. This is, to a certain extent, in the spirit of the solution chosen by the Israeli legislator. This approach is recognized in academic literature as more respectful of the parents’ autonomy, and ethically appropriate, insofar as it does not endanger the lion’s share of welfare payments for children. (See David Isaacs, An Ethical Framework for Public Health Immunisation Programs, 23(5-6) NSW Public Health Bulletin 111,114 (2012).
The comparative law was reviewed merely to illustrate the variety of means employed by other legal systems in a similar context. Obviously, these examples themselves cannot dictate the outcome. However, they emphasize several points that ought to be discussed. First, they show that the issue of child vaccination and imposing sanctions in this context (even when they may indirectly harm the children themselves) are also present in other systems to promote the welfare of the children themselves and the welfare of the public. Second, other systems went as far as imposing sanctions, which may be deemed harsher than those methods adopted by the Israeli legislature. These sanctions may indeed serve more closely the purpose of achieving the result of vaccinating children (due to their weight), but they simultaneously entail more severe harms to the children and their parents (including the imposition of fines or prevention of the children’s studies in educational institutions). I will mention these alternatives again when addressing the limitation clause.
And now: the Amendment discussed before us was intended to achieve a double purpose of protecting the health of infants, for whom contracting the diseases against which the vaccine protects may be dangerous and at times even lethal, and protecting public health as a matter of national medical policy through the creation of “herd immunity”. This double purpose will also be important for our later discussion regarding the limitation clause. At this point it can also be said that the double purpose of the law does not mandate a direct confrontation with the discussion on the limits of paternalism. As is known, the classification of a legal rule as paternalistic is made through the prism of the grounds underlying it. Therefore, the more the legal rule intervenes in the individual’s autonomy of will for the sole purpose of protecting him and his welfare from his own actions, the more likely we are faced with a paternalistic rule. More specifically, in our case we have a paternalistic rule which intervenes in the parents’ autonomy of will in order to stop them from making a mistake, as the issue is perceived by the Ministry of Health. The question of the appropriate limits of paternalism has been extensively discussed and this framework is too narrow to discuss it. (See, for example: John Stuart Mill, On Liberty (Arieh Simon, Translator, 1946); Peter De Marneffe, Avoiding Paternalism, 34(1) Philosophy and Public Affairs 68 (2006); Gerald Dworkin, Moral Paternalism, 24(3) Law and Philosophy 305 (2005)). For purposes of the current discussion it is important to state on this issue the following two points. First, it is evident that those engaged in the legislative work were aware of the difficulties caused by over-intervention in the decisions of individuals. Thus, for example, the drafters of the law refrained from setting a statutory vaccination requirement, the breach of which entails a punitive sanction; instead, they were satisfied with the creation of an economic incentives scheme, which leaves parents a wider array of choices. The fact that it is only the increase in the allowances that is made contingent on the vaccination of the children, while leaving the base allowance intact suggests the same. Second, it is certainly doubtful whether we have before us a paternalistic rule in the full sense of the word, considering that the Amendment was intended not only to protect the children and their parents from themselves, but also to protect the general public against the outbreak of diseases. It seems that the duty of the Ministry of Health to institute preventive measures to eradicate diseases that threaten public health cannot be disputed.
Moreover, since the Amendment was intended to promote the protection of the health of children in the State of Israel, it should not only be deemed as a means that violates rights (in the name of an important public interest), as the petitioners argued, but also as a means intended to promote rights in a positive manner—in this case, the children’s right to health. The above fits in with the general perception of Basic Law: Human Dignity and Liberty, pursuant to which the protection of basic rights is not merely reduced to a negative protection against the damaging power of government, but also extends to a positive protection which reflects the government’s duty to operate in an active manner for the protection of basic rights. While according to Section 2 of the Basic Law: Human Dignity and Liberty “[t]here shall be no violation of the life, body or dignity of any person as such” (and here the negative protection of these rights is expressed), according to Section 4 of Basic Law: Human Dignity and Liberty “[a]ll persons are entitled to protection of their life, body and dignity (in other words, the government is also required to positively promote these rights).” Although the question regarding the scope of the constitutional right to health has yet to be decided, there is no doubt that striving to guarantee basic conditions of good health falls within the boundaries of the right to human dignity. In addition, it can be deemed as a derivative of the right to life and of the protection of the person’s body. (Compare: Eyal Gross “Health in Israel: Right or Product”, Economic, Social and Cultural Rights in Israel (Yoram Rabin and Yuval Shani, Editors, 2004); LCA 4905/98 Gamzo v. Yesha’ayahu [2001] IsrSC 55(3) 360, 375-376; HCJ 3071/05 Luzon v. The State of Israel (July 28, 2008), in paragraphs 9-17; HCJ 11044/04 Solometkin v. The Minister of Health (June 27, 2011), in paragraphs 11-16). Legislation seeking to create incentives for child vaccination is legislation that falls not only into the category of laws that limit rights, but also that of promoting rights in general and children’s rights in particular. Section 4 of the Basic Law expresses a clear position that rejects the perception that the State is at its best when it does not intervene. Article 25 of the Convention on the Rights of the Child, 1989 also states the obligation of the member states to act for the promotion of children’s health, including “to develop preventive health care.” (Article 25(6)).

Conditioning of Rights: The Normative Framework

The third question of those I mentioned in the beginning is the legal question at the heart of the petition: to what extent can conditions be imposed on rights vis-à-vis the State and more specifically, is it possible to condition rights on requirements which the recipient of the right is required to fulfill? What is the supposed novelty of setting conditions? The law frequently defines rights and eligibilities as such that include restrictions and conditions to their fulfillment, either paternalistic conditions seeking to protect the holder of the right from himself or conditions seeking to protect the public interest. However, the other side of the coin is that imposing conditions on rights raises a concern of weakening those specific rights and eroding the concept of a right until it is turned into a benefit given by the grace of government.
An important distinction that should be drawn at the outset is the distinction between constitutional rights and legal rights. The main concern regarding the conditioning of rights pertains to the conditioning of constitutional basic rights. The liberal doctrine of rights is based on the perception that constitutional basic rights are the individual’s shield against government’s power, and thus they are supposed to be, in the usual case, autonomous of any and all limitations. The history of the democratic fight for rights is tied to the perception that rights are also conferred on those who are not perceived as “normative persons,” violators of law, and those who are not deemed, ever or at the time, to be “model citizens”. On the contrary, many battles for rights were shouldered by those whose opinions outraged others and were a thorn in the side of people in authority.
Does this mean that conditions may never be imposed on constitutional rights? In fact, since I have reached the conclusion that payment of child allowances does not reflect, at least for the time being, a protection of a constitutional right, I am no longer required to answer this question directly, and therefore I will address it relatively briefly. In general, the position regarding the setting of conditions on the exercise of constitutional rights should be suspicious and minimizing. However, attachment of conditions to the exercise of a constitutional right cannot be rejected at the outset and in advance (as distinct from conditions aimed at denying the constitutional right itself), if only because of the perception that rights are relative for the most part, and not absolute, as indicated by the limitation clauses included in the basic laws. For example, exercising the right of access to courts can be made contingent upon payment of a fee (subject to exceptions guaranteeing that the payment of the fee does not bar persons without means from conducting legal proceedings). (See for example, LCA 3899/04 The State of Israel v. Even Zohar [2006] IsrSC 61(1) 301, 319-321; LCA 2146/04 The State of Israel v. The Estate of The Late Basel Naim Ibrahim [2004] IsrSC 58(5) 865, 868; M.C.M. 457/01 Karlitz v. The Officer of the Elections for the City of Beer Sheva 1998 [2001] IsrSC 55(3) 869, 872)). Similarly, the income assurance allowance, which is generally the legal manifestation of the constitutional right to a dignified human existence, can be contingent upon the requirement to “exhaust earning capacity.” In both cases, the conditions are not “foreign” to the purpose of the relevant rights considering that the payment of a fee assists in making sure that the use of the right of access to the courts will not lead to inefficient use of the important public resource of the judicial system, and that the requirement to exhaust earning capacity contributes to the proper use of the limited resource of support for those who cannot ensure their basic sustenance.
In any event, the case before us falls within a different category: the conditioning of legal rights vis-à-vis the State (by virtue of legislation, as distinct from super-statutory constitutional basic rights). Because the conferral of rights pursuant to the law is supposed to also serve public interests and public policy, the conferral of this type of right is often accompanied by conditions. Below I will refer to standards which should guide the legislature, and later the court, in outlining the proper framework for the conditioning of legal rights.
Presumably, the conditioning of rights available to individuals vis-à-vis the State does not necessarily raise a constitutional difficulty. We should remember that the law often defines rights and eligibilities as such that include restrictions on and conditions to their fulfillment. The aforesaid notwithstanding, in practice the imposition of conditions on legal rights may also be problematic on the constitutional level, when the essence of the condition is a waiver of a constitutional right. For example, conditioning of a legal right, such as eligibility for an allowance, on the recipient’s waiver of his right to freedom of speech or his right to freedom of religion and conscience is problematic even though, theoretically, the government may choose not to grant such an allowance at all. The reason for this is concern about an indirect limitation of constitutional rights. In American constitutional law, the accepted term for discussing the problem of eligibilities given by the government based on a (supposedly voluntary) waiver of constitutional rights is the unconstitutional conditions doctrine. (See for example: Note, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968); Allen Redlich, Unconstitutional Conditions on Welfare Eligibility, Wis. L. Rev. 450 (1970); Richard A Epstein, Unconstitutional Conditions, State Power and the Limits of Consent, 102 Harv. L. Rev. 5 (1988); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989); Cass Sunstein, Is There An Unconstitutional Conditions Doctrine?, 26 San Diego L. Rev. 337 (1989); Brooks R. Fundenberg, Unconstitutional Conditions and Greater Powers: A Separability Approach, 43 UCLA L. Rev. 371 (1995); Daniel A. Farber, Another View of the Quamire: Unconstitutional Conditions and Contract Theory, 33 Fla. ST U. L. Rev. 913 (2006); Renee Lettow Lerner, Unconstitutional Conditions, Germaneness, and Institutional Review Board, 101 Nw. U. L. Rev. 775 (2007); Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98 Va. L. Rev. 479 (2012)). We are not bound, of course, by the details of this doctrine, and some aspects of its scope and application are still in dispute in American law itself. Nevertheless, it does indicate the caution necessary in conditioning legal eligibilities, which may indirectly violate constitutional rights. In this spirit, and without exhausting discussion in the matter, I wish to present primary relevant considerations in examining such conditioning. As I will clarify below, these considerations will ultimately be included in the formal constitutional examination performed within the context of the limitation clause.
Relevance of the Condition and its Affinity to Eligibility – Essentially, conditions to eligibility are supposed to have a relevant connection to the policy the eligibility is intended to promote. In order to clarify the nature of the discussion, let us consider two hypothetical examples that may be discussed in relation to framing the eligibility for income assurance allowances: first, conditioning eligibility for receipt of the allowance on the applicant not having a bad traffic record; second, conditioning eligibility on the applicant’s active desire to re-join the employment circle by visiting the employment bureau each week. Our intuition suggests that the second condition is legitimate, as it is consistent with the purpose of the income assurance allowance and it comports with the public interest underlying it—the re-integration of a person who has been excluded from the employment circle, while providing a last residual protective net on the way there. (Hassan Case, in paragraphs 6-7 and 57). The translation of this intuition into a legal principle tells us that the condition should derive from the same legal circle within which the conditioned right is operated. In other words, the purpose of the condition and the public interest promoted through it must be derived from the same normative field in which the conditioned right is rooted. The weaker the connection between the two becomes, the more the conditioning becomes constitutionally illegitimate. For example, although there is no dispute that eradicating driving violations and creating a system of incentives to promote this are desirable from perspective, these have absolutely nothing to do with eligibility for income assurance allowance. The purposes underlying each of these arrangements are foreign to one another. This foreignness indicates the arbitrariness of the conditioning and the flaw in combining them with each other. Sometimes, the question of the relevance of the conditioning may also be examined with respect to the question of whether the condition is paternalistic and seeking to promote the best interests of the holder of the right himself, or a condition seeking only to protect a wide public interest. Sometimes, of course, the conditioning of the right may encapsulate more than one reason within it.
An auxiliary test that may assist in examining the nature of the affinity and the connection between the purpose of the condition and the conditioned right focuses on the date the condition was imposed and the legislative history behind it. Generally, insofar as the condition was imposed on or about the time the right was granted, the conditioning will be classified as part of the definition of the right and delineation of its scope. Insofar as the condition is added, or should we say “pasted,” at a later date, adding it should be deemed as external conditioning of the normative content of the right. This is of course merely an auxiliary test and no more. Situations can also be conceived where a new statutory eligibility is “born” with an attached foreign and inappropriate condition.
Without making a final determination, an example seemingly close to our case is the birth grant given by the State, which is contingent on the mother having chosen to give birth in a hospital and not in her home. (Sections 42-43 of the National Insurance Law). In this context too, the State wishes to help the mother but at the same time promotes a public policy that the delivery will take place in the hospital, which is, as the State and professionals perceive it, in the best interests of the mother and the newborn as well as in the best interests of the public as a whole. In addition, the condition attached to the eligibility is in affinity the general purpose of the eligibility, promoting the welfare of the mother and her family.
Voluntary Choice – A distinction must be made between voluntary conditions, which give the individual freedom of choice, and conditions that refer to inherent identity characteristics that a person is unable to change or that it would be inappropriate to require him to change (such as religious or national origin). The importance of this consideration cannot be exaggerated. Conditioning rights on a requirement that contradicts identity characteristics will, by its nature, cause difficulties, and raise a heavy suspicion of discrimination. Obviously, between the extreme situations of full choice on the one hand, and coercion and lack of choice on the other hand, there may be interim situations in which the incentives that accompany the choice affect whether the condition violates a right.
Scope of Conditioning – Another consideration that should be taken into account concerns the scope of conditioning: that is, the extent of exposure of the right to the restricting power of the condition. In this context, both the scope of coverage of the condition and whether it applies to the entire right or perhaps only to part of it are significant. Similarly, it may be examined whether the condition pertains to an addition to an existing eligibility, or perhaps results in the derogation therefrom.

Imposition of Conditions on Rights: From the General to the Particular

The application of these standards to the case before us makes clear that the Amendment in our case does not create an arbitrary connection between a legal right and the promotion of a public interest.
Pertinence of the Condition and its Affinity to Eligibility – The State grants child allowances to everyone (in other words, over and above what is required for the purpose of guaranteeing the right to a dignified human existence of children who grow up in conditions of poverty) in order to promote the welfare of the families who raise children and the children who are raised by them in particular, including the promotion of their health, alongside other public purposes. Thus, in this case, the conferral of the right to receive a child allowance was made contingent upon a condition that has a direct and unequivocal affinity to the purpose for which the right was conferred in the first place; the condition is based on an opinion of independent professionals who indicate that the best interests of children and of society require that they be vaccinated. In these circumstances, in which the right to the allowance is contingent upon a condition that is directly and clearly entwined with the best interests of its beneficiary, it is not difficult to hold that the condition is pertinent. The child allowances are not only granted in order to provide for the children, but for their welfare, including other basic rights they have such as education and health.
Indeed, an inspection of the comparative law may serve as a basis for the argument that a condition that links the acceptance of children to schools and their vaccination expresses a stronger affinity between the condition and the right than as distinguished in our case where eligibility for child allowances was made contingent upon their vaccination. However, in practice, and following further inspection, this argument is unconvincing. De facto, the only difference between the American conditioning model and the Israeli conditioning model is the time the children’s vaccination condition was imposed, not the intensity of the link between the condition and the eligibility. Both models see the need to protect the children themselves and the need to protect those who come into daily contact with them. However, the Israeli legislator wished to move up the date of the condition that incentivized children’s vaccination as a preventive measure, and thereby make redundant the future dilemma with which health policy makers in the United States and Canada are dealing, namely, when parents are required to enroll their children in the education system. In addition, earlier vaccination of infants appears to be more effective from a preventive medicine standpoint, and if so, it is more logical to create an incentive to vaccinate the children at an earlier stage, prior to sending them to the education system. In fact, insofar as the main purpose is to prevent the infection of other children, it makes sense to make the connection to the time of entrance into the educational institution. However, insofar as the purpose is the promotion of the best interests of the children themselves, an earlier date is preferable.
Some of the arguments advanced by petitioners attempted to undermine the assumption that conditioning the allowances indeed promotes the children’s health and their general welfare. One argument made before us on this issue is that there are views that vaccination of children does not serve their best interests and that the route of natural immunity is preferable. A second argument raised in this context is that conditioning the right to child allowance constitutes “double punishment” of the relevant children. First, they are not being vaccinated and thus their health is compromised. Second, the State does not pay their parents the full child allowance amount, and thus their welfare is also harmed. These arguments should be dismissed. The first argument, pertaining to the uselessness of vaccination for the children’s health cannot be accepted because of the factual basis underlying it. The medical opinion underlying the vaccination policy is a solid one supported by many studies. The petitioners’ arguments regarding the existence of other approaches have their due respect, but the formulation of national policy is supposed to be based on the position of the professional bodies of the government, founded on studies and examinations. Nothing in the petitioners’ arguments undermines the firm basis underlying the policy, at least for the time being. The second argument should also be dismissed. This argument is based on the assumption that conditioning part of the eligibility for child allowances on vaccinating the children is merely a sanction and cannot direct behavior. This assumption remains unsubstantiated. Moreover, the Amendment was enacted in a format that inherently attests that it was intended to direct behavior. The reduction of child allowances is not imposed as a sanction in an irreversible manner. This reduction applies only during the period in which the parents are supposed to vaccinate the child with the vaccine they avoided. During the vaccination period the parents receive several notices and warnings on the consequence of failure to vaccinate the children. Furthermore, once the suitable period for giving the vaccine passes, the allowance returns to its regular amount. Thus, it may be said that the Amendment is phrased in a manner intended to create a means for directing behavior, and at least at this stage, there is no reason to believe that it will not succeed to do so. In any event, this cannot be pre-assumed.
Voluntary Choice – The Amendment to the law assumes, in practice, that the impediment to vaccinating children derives from the parents’ choice not to vaccinate, and not from the fact that the State does not guarantee reasonable access for the entire population to this essential service, in terms of both location and cost. The aforesaid is particularly important in view of the fact that one of the petitions before us was filed by Adala Center, which alleged insufficient dispersion of Family Health Center services among the Bedouins in the Negev region. If indeed there was no reasonable access to the vaccination services for the entire population, then the Amendment is problematic because this would mean the denial of eligibility for child allowances is in fact arbitrary and does not in practice promote the purpose of the Amendment. In order to avoid this inappropriate result, the Amendment should be interpreted pursuant to its objective and denial of the eligibility for child allowances should only apply in situations where parents choose not to vaccinate their children, and not in situations in which the parents refrain from doing so due to lack of reasonable access to health services. De facto, the State’s arguments painted a positive picture of improvement in the level of accessibility to Family Health Center services in the Negev region, and the State is presumed to continue to act in this direction. In addition, the State has undertaken, both in writing and orally, that the vaccination fee will be cancelled, so that the cost of vaccination will not be a barrier for those who lack financial means.
Scope of Conditioning – conditioning eligibility for child allowances on the children’s vaccination does not apply to the entire allowance but only to part of it. Failure to fulfill the condition does not deny the entire child allowance (like it does not deny all other means that the social laws in Israel provide for the fulfillment of the child’s right to a dignified existence).
Thus, it may be concluded, at this time, that the imposition of conditions on eligibilities relies on solid foundations, at least when (like in the case before us) the eligibilities discussed are eligibilities pursuant to a law that promote public policy (as distinguished from constitutional rights), the condition set is related to the purpose of granting the eligibility, the fulfillment of the condition depends on the free choice of the relevant party, and especially because the conditioning does not apply to the entire eligibility.

Equality in Granting Eligibilities

The fourth question that should be examined, according to the order of things, also relates to the content of the conditioning, and in this context focuses on the level of equality. The petitioners argue that the Amendment to the law discriminates in issue granting full payment of child allowances between those who vaccinate their children and those who do not vaccinate their children. Is this really the case?
My colleague, Justice Arbel, accepts the petitioners’ argument on this matter, based on the assumption that the condition placed upon the allowance is foreign both to the structure of the allowance and to its purposes (paragraph 49 of the opinion of Justice Arbel). In my opinion, the starting point for the discussion on this issue should be different. In fact, as the discussion on the history of the child allowances makes clear, these allowances embodied several purposes throughout the years, and they are seeking, inter alia, to promote the welfare of children in Israel in general. Examining things from this perspective, it cannot be said that a condition that promotes the vaccination of children in Israel, and thus protects their health (according to the prevailing perceptions in the scientific community), is a condition foreign to the purpose of the allowances (as I explained above in paragraph 48).
Furthermore, it is also possible to observe the matter through a comparison of the children who receive vaccinations and those who are denied vaccinations by their parents. The conditioning of the child allowances expresses the State’s commitment to also care for the latter.
On a wider perspective, an important question hovering in the background is whether whenever the law distinguishes between people or groups, it is right to deem the distinction as a violation of the right to equality, and then to examine through the limitation clause; or whether there are “relevant” distinctions that would not be considered, a priori, a violation of the right to equality. For example, does the payment of child allowances only to parents of children constitute justifiable “discrimination” because it is done for a proper cause and satisfies all other conditions of the limitation clause, or is it a distinction that does not amount to a violation of the right to equality from the outset?
Ultimately, I am of the opinion that a ruling on these issues is not necessary in the case before us because a link exists between the distinction made and the relevant individuals’ autonomy of will. According to the judgments of this Court, the right of equality is constitutionally protected as part of the right to human dignity in those situations where the distinction projects on the individual’s autonomy of will. (See HCJ 6427/02 The Movement for Quality Government v. The Knesset [2006] IsrSC 61(1) 619, 680-691; HCJ 7052/03 Adala Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior [2006] IsrSC 61(2) 202, 303-304). Since the Amendment has ramifications for decisions that express the parent’s autonomy of will with regard to the upbringing of their children, even if the Amendment does not violate the autonomy of will, the fact that underlying the distinction is the autonomous choice of the relevant individuals justifies holding that the Amendment violates equality in a manner that requires to examine whether it satisfies the limitation clause.
It is important to add that it cannot be said, based on the data placed before us, that the Amendment imposes a discriminating reality that wrongfully distinguishes between infants from the Jewish sector and infants from the Bedouin sector. Against this argument made by Adala Center the State presented figures (updated as of 2009) in which the rate of unvaccinated Bedouin children (nine percent) is similar to the rate of unvaccinated Jewish children (seven percent), insofar as we are referring to children between the ages of two and five ( three percent in the Arab sector). In any event, the Amendment should be interpreted in a way that excludes from the condition anyone who wishes to vaccinate his children, but to whom vaccination services are not made reasonably accessible by the State. In this sense, the petitioners’ path will be open to argue against the implementation of the law (as distinct from against its constitutionality) insofar as the access to the vaccination services is not adequately available.

The Amendment to the Law through the Limitation Clause

Based on the above, I wish to discuss the fifth and concluding question: does the Amendment include a violation of a constitutional right, and does this violation, if any, satisfy the constitutional tests of the limitation clause.
Like my colleague Justice Arbel, I showed that the majority of the petitioners’ arguments regarding the violation of constitutional rights are unconvincing. In the absence of a violation of a constitutional right, the discussion ends before it begins, and all that remains is criticism (right or wrong) of a public policy that was embodied in an act of legislation and whose place is in the public sphere. The eligibility for child allowances is part of a welfare policy currently serving the best interests of many children across the country in the immediate future, as well as the best interests of the public as a whole in the long term. However, there is no constitutional right to receive it in one specific form. The State can also care for the welfare of people in general and people living in poverty by paying other allowances and introducing changes to the current allowance policy, which is not “sacred” or “set in stone.” No factual foundation has been laid out before us for the argument that child allowances are essential for the dignified human existence of their recipients, and even more so, no factual foundation has been laid out before us to establish that those who avoid vaccinating their children are people who particularly need these allowances. It should be further noted that in most cases (except when the unvaccinated child is an only child), even parents who refrain from vaccinating their children, whatever their motivations might be, are left with the eligibility for the basic child allowance. They are not denied the latter, but only the increase provided by the Amendment. The strongest argument for a violation of a constitutional right in this case was the argument on the alleged violation of the right to equality. Even if a violation of the right of equality was found, it would satisfy the tests of the limitation clause (pursuant to Section 8 of the Basic Law: Human Dignity and Liberty), as I will demonstrate briefly.
Under the circumstances of this case, it can easily be seen that the first three conditions of the limitation clause are satisfied almost prima facie. The classification of the eligibility for child allowances was set in an explicit amendment to the law. The purpose of the law is proper, both in the with respect to the right to health of each one of the children to be vaccinated and with respect to the sense of the national interest of public health. In any case, legislation that promotes such important purposes befits the values of the State of Israel as a state that wishes to promote the welfare of its citizens. Thus, it remains to discuss the question of proportionality, which focuses on the means chosen to achieve the purpose. A proper purpose is not enough; the means chosen to achieve the purpose must also be appropriate, suitable and proportionate.
The first sub-test of proportionality is the rational means test that asks, whether the means chosen are indeed expected to achieve the purpose of the legislation. The answer to this question is positive, as we stated earlier, at least for the time being. A legislative practice of granting monetary incentives (positive and negative) to promote various behaviors, by conditioning various eligibilities (in the areas of taxes and welfare) is a common matter. Underlying each and every one of these acts of legislation is the assumption that incentives direct behavior. There is no reason to believe that things will be different in our case. If different information accumulates later on, the legislature will be required to assess it.
At most, it may be said that the application of the first sub-test of proportionality in the case before us presents the following paradox: the means used (conditioning the eligibility on an act of vaccination) is expected to achieve the purpose, but may achieve it less effectively than harsher means (such as prohibiting acceptance of unvaccinated students to educational institutions). This is why the petitioners characterize the means used as some kind of a “sanction” and not as means of enforcement: because it cannot be guaranteed in advance that the parents will respond to the incentive the conditioning seeks to create. Using a harsher means could have guaranteed the achievement of the purpose with more certainty, but it would have come at the price of a more severe violation of rights, and in this sense would have created more difficulty within the framework of the second sub-test and the third sub-test of proportionality, discussed below.
The second sub-test of proportionality examines whether the chosen means are the less harmful means. It seems to me that the case before us is a clear instance where the act of legislation is based on a careful and meticulous thinking process with regard to the means chosen as compared with other possible alternatives. In the course of deliberation, arguments pointed out alternative methods that were used elsewhere or that might have been used, such as preventing unvaccinated children from studying in educational institutions (as in France and the United States) and imposing punitive sanctions, .It can easily be seen that the majority of these means are actually harsher and more harmful than the route chosen by the Israeli legislature. Preventing unvaccinated children from studying in educational institutions is a very harsh step with regards to the scope of the damage to the children. It also comes at a relatively late point in time considering the optimal age for vaccination according to the policy of the Ministry of Health. Imposing a punitive sanction on people who choose not to vaccinate their children is certainly an offensive step, which does not respect those who are deeply convinced that the vaccination will harm their children. Thus, only the tool of advocacy remains, whose value cannot be exaggerated in this sensitive context in which the parents’ level of conviction is essential to obtaining the goal of wide-scope vaccination. (Compare Michal Alberstein and Nadav Davidowitz “Doctrine of Therapeutic Law and Public Health: An Israeli Study” Mehkarei Mishpat (26) 549, 571-578 (2010)). However, the Amendment to the law was enacted after the advocacy approach failed to produce sufficiently effective results according to the Ministry of Health. It may be added that having said that refraining from vaccinating is a seemingly rational act for the promotion of self-benefit in an environment in which most people are vaccinated, the creation of a monetary incentive (if only limited) to be vaccinated is thinking in the right direction because it creates a counterbalance to the benefit entailed in the decision not to vaccinate. (Compare to the discussion in Parkins’ paper above). Perhaps an incentive that is not directly related to child allowances could have been used, and perhaps this type of an incentive should have been preferred. A “vaccination bonus” or a similar benefit could have been established for parents who vaccinate their children. Practically speaking, there is no significant difference between these two methods because in both cases the result is the denial of a benefit from a family because the parents choose not to vaccinate their children. In conclusion, the petitioners failed to indicate a measure of lesser harm that would have achieved the legislative purpose to a similar extent. (See in this context: Aharon Barak, Proportionality in the Law 399 (2010)).
Another consideration in assessing the existence of alternative means pertains to the fact that the basic Vaccination Program to which the Amendment applies includes vaccinations for diseases whose consequences are very severe on one hand, and the contraction of which cannot usually be prevented through other means on the other hand. This consideration is important seeing as part of the vaccination plans enforced in other countries are aimed at diseases, contracted through sexual relations or blood donations that can also be prevented in other ways. (See Note, Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820 (2008); Marry Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol'y L. & Ethics 39 (2012)).
The third sub-test of proportionality, the narrow proportionality test, examines the appropriate relationship between the means chosen and the purpose, as “the end does not justify all means.” I believe that the Amendment to the law before us also passes this final sub-test relatively easily. The purpose which the Amendment to the law seeks to promote is highly important—promoting the health of young children in Israel, as well as promoting the public’s health in the face of serious diseases that break out during times when vaccination enforcement is lax. The means chosen to promote this purpose—a partial reduction of child allowances for a limited period as a means to encourage parents to vaccinate their children—is relatively mild. In addition, it should be kept in mind that currently the Vaccination Program is limited to only four vaccines (given in one concentrated shot), such that the condition to receiving the allowances is essentially limited. It was further determined that the process is reversible in the sense that once the child is vaccinated or the maximum age for vaccination passes the reduction will be cancelled and the allowance recalculated. Furthermore, the reduction of the allowance was capped and proceedings to contest and appeal the institution’s decision to limit the allowances have also been established. The importance of the purpose alongside the relatively minor harm caused by the sanction, speaks for itself. The relatively minor violation of rights in this case constitutes a counterbalance to the recognition that employing a harsher means could have created a tighter link between the means and the purpose within the first sub-test of proportionality as specified above.

Conclusion: About Rights and the State’s Responsibility

An overview of the petition reveals a fundamental tension between the expectations the various individuals have of the State. On the one hand, there is an expectation that the State minimize its intervention in decisions of its citizens. On the other hand, there is an expectation that the State operate in an active manner to promote the citizens’ welfare. (On the discrepancies between the various expectations from the State, compare Barak Erez, Administrative Law, on p. 54-55; Barak Erez, Citizen-Subject-Consumer, on p. 34-35). The tension that exists between these expectations might lead to a conflict, like in the case before us. When the State takes an active stance with respect to child vaccination, it is intervening in personal decisions. Thus, it is ostensibly intervening in the private sphere. However, the means used by the State in this case pertain to the granting of child allowances, the mere granting of which expresses the State’s involvement in the family sphere. Moreover, intervention in the private sphere is not necessarily bad, particularly when it is done to promote the rights of the weak individuals in the family unit, those whose voice is not always heard—in this case the children whose parents did not act to vaccinate them.
There may be a dispute on the scope of the requirement to vaccinate children and perhaps, over the years, changes will even occur in the perceptions that direct the policy in this area. However, on principal, the starting point with regard to the State’s intervention in promoting children’s welfare does not always have to be suspicious. Essentially, taking an active stance on the issue of child vaccination is not the State riding roughshod over rights, but rather evidence of the State’s commitment to the welfare of the children in Israel, a commitment whose importance cannot be exaggerated.

Justice E. Hayut:

I agree with the result reached by my colleagues, Justice E. Arbel and Justice D. Barak Erez, that the three petitions should be denied. Like them, I too believe that the petitioners in each of the petitions did not show a violation of the constitutional right to property or to a dignified human existence, and in this context I saw no need to add to the explanations in my colleagues’ opinions. As for the constitutional right to equality, Justices Arbel and Barak Erez determined that Amendment No. 113 to the National Insurance Law ([Consolidated Version], 5755-1995 (hereinafter, the “Amendment to the Law”) violates the right of equality, but further held that despite this violation, the petitions should be denied because the violation satisfies the conditions of the limitation clause. My route to the same result is different. For the reasons I will specify below, I believe that the petitioners in the three petitions failed to show a violation of the right to equality. However, before we examine the question whether the right to equality has been violated, we should inquire what is the group of equals that should be referred to in this context.
One of the arguments raised by the petitioners in HCJ 7245/10 is the argument that the right to child allowances a right conferred upon the child and not his parents. (compare CA 281/78 Sin v. The Competent Authority under Nazi Persecution Disabled Persons Law, 5717-1957 [1978] IsrSC 32(3) 408) and thus the relevant group of equals is the group of children who were given the right to the allowances specified in the National Insurance Law when they came into the world. According to this approach, the essence of the violation of the constitutional right to equality is that, with regard to the child allowances, it is improper to distinguish between children who were vaccinated and those who were not vaccinated. On the contrary, this type of distinction, it is argued, constitutes a double harm to the children: not only did their parents fail to vaccinate them, but the allowance for which they are eligible is reduced because of it. This argument is captivating but it appears to have no real basis in the provisions of the law. Section 66 of the National Insurance Law states that “an insured parent is eligible for a monthly child allowance under this chapter for each child.” This indicates that the right set forth in the law is the parent’s right, provided that the child for whom the allowance is paid is in the custody of that parent. (See Section 69 of the National Insurance Law). Another provision that supports this conclusion that the right to the allowance set in the National Insurance Law is the right of the parent and not the child, is Section 68(b) of the National Insurance Law, which determines a differential payment of the allowance for each of the children in the family according to the birth order. It is obvious that such differential payment is improper if the right to the allowance is the child’s right, since there is no justification to discriminate between the children with regard to the extent of social support they will receive from the State, based only upon the time they were born relative to the other children in the family. In contrast, if the allowance is the parent’s right, it makes sense and is justified to consider, with regard to the social support the cumulative amount available to the family, and therefore setting different allowance amounts for children, based on their birth order does not constitute discrimination. It should further be mentioned that in the past, a tax, in various amounts and under various conditions, was imposed on the child allowances, treating them as parents’ income. (See for example: Taxation of Allowance Points Law (Temporary Provision), 5744-1984; for support of the continuation of child allowances taxation policy see Yoram Margaliot “Child Allowances” Berenson Book Second Volume – Beni Sabra 733 (Editors, Aharon Barak and Haim Berenson, 2000); and for a historical review of child allowance taxation see paragraphs 8-15 of the opinion of Justice D. Barak Erez). The National Labor Court has also adopted the opinion that the person eligible for the child allowance is the parent and not the child. (See NIA 1117/04 Azulai v. The National Insurance Institute (November 2, 2006)). The starting point in examining the question of discrimination raised in the petitions before us is that the right to child allowance is the parents’ right, and that the parents therefore constitute the relevant group of equals.
Does the Amendment to the law, which is the subject matter of the petition, discriminate between the different groups of parents?

“The obligation to act with equality means giving equal treatment to equals and different treatment to those who are different.” (See, for example, HCJ 4124/00 Yekutieli v. The Minister of Religious Affairs, paragraph 35 (June 14, 2010) (hereinafter, “Yekutieli Case”)). Since the enactment of the Basic Law: Human Dignity and Liberty, the right to equality has been recognized as part of the person’s right to dignity in the sense that discrimination, even if it is unaccompanied by humiliation, will be deemed as a violation of the constitutional right to equality which enjoys the constitutional protection conferred under the Basic Law. (HCJ 6427/02 The Movement for Quality Government v. The Knesset [2006] IsrSC 61(1) 619, paragraphs 40-43 of the opinion of President Barak (hereinafter, “re: MQG Case”)). The obligation not to discriminate, which is imposed first and foremost on government authorities, is nothing but a mirror image of the person’s right to equality; therefore, a law that discriminates between equals in the aforementioned aspects may be invalidated as unconstitutional, unless the violation of equality can be justified as a violation that satisfies the conditions of the limitation clause in Section 8 of the Basic Law: Human Dignity and Liberty.

The uniqueness of the petitions before us is in that the petitioners are not arguing that it is unjustified to prefer the group of vaccinating parents over the group of non-vaccinating parents; they focus their arguments instead solely on the manner in which the legislature has chosen to express this preference. For example, the arguments of two out of the three groups of petitioners (in HCJ 7245/10 and HCJ 8357/10) make clear that they consider it very important that the population of children will indeed receive the MMRV vaccine according to the Ministry of Health’s vaccination program (hereinafter, the “Vaccination Program”), and they also deem it justified to set a policy that incentivizes parents to give their children this vaccine, in order to protect the general population from spreading of dangerous epidemics. The petitioners in HCJ 908/11 argue that the effectiveness of the vaccines is uncertain, but they do not argue that simply creating an incentive to vaccinate the children creates an irrelevant and unequal distinction, and focus their arguments on the discrepancy they believe exists between this distinction and the objective of the child allowance. It appears that there is no dispute that the State is entitled, and perhaps even obligated, to use the means available to it to maintain public health, and that according to the medical data in the State’s possession (the accuracy of which the petitioners in HCJ 908/11 dispute), the Vaccination Program is effective and essential in the prevention of dangerous diseases. From this derives the conclusion that the legislature is allowed to treat the group of parents who vaccinate their children differently than the group of parents who do not vaccinate their children, and from the arguments in all three petitions it is clear that had the legislature chosen, for example, to give a monetary bonus to the parents who vaccinate their children rather than reduce the allowance for those who do not vaccinate their children, the petitioners would have had no argument regarding a constitutional violation of the right to equality. In other words, the petitioners do not dispute the fact that the legislator may give different treatment to each of the aforesaid groups, and that it is permitted to do so, inter alia, through an economic incentive.

Does the fact that the economic incentive enacted by the Knesset was incorporated into the child allowance mechanism by way of reducing the allowance (a negative incentive) cause, in itself, a violation of the constitutional right to equality?

Justice Arbel believes that the purpose of the child allowances is to help fund the families’ expenses in raising children, and thus the denial of a part of the allowance for reasons unrelated to the number of children in the family “would be foreign to the allowance, and therefore violate the right to equality.” (Paragraph 49 of her opinion). Justice Barak Erez believes that the “strongest argument, relatively, of a violation of a constitutional right in this case was the argument on the alleged violation of the right to equality,” and although she doesn’t explicitly determine that such a violation indeed exists and or indicate what makes it strong, she holds that “in any event, even if a violation of the right to equality was found, it would satisfy the tests of the limitation clause.” (Paragraph 61 of her opinion, and see also paragraphs 57-58 of her opinion).

I disagree.

The fact that the legislature amends an existing law, and at the same time creates a new distinction between the groups of those entitled to receive all rights pursuant to the amended law, does not, in itself, constitute a violation to equality, unless we believe that the groups designated as entitled persons in the original law must never be changed. It appears to me that such a rigid approach is uncalled for, and it seems that the question that ought to be examined in this context, like in other cases in which we try to identify wrongful discrimination, is whether the new distinction between the groups of entitled persons created by the law in its amended form treats equals differently. The common method in case law to identify the “group of equals” whose members are entitled to equal treatment is to examine the “objective of the law and essence of the matter, the fundamental values of the legal system, and the special circumstances of the case.” (See for example HCJ 6051/95 Rekant v. The National Labor Court [1997] IsrLC 51(3) 289, 346; HCJ 3792/95 National Youth Theater v. The Minister of Science and Arts [1997] IsrSC 51(4) 259, 281; AA 343/09 Jerusalem Open House for Pride and Tolerance v. The City of Jerusalem, paragraph 41 of the opinion of Justice Amit (September 14, 2010)). In other cases it was stated that the question of whether this is a prohibited discrimination or a permitted distinction will be examined according to the “accepted social perceptions,” (HCJ 721/94 El Al Israel Airlines Ltd. V. Danilowitz [1994] IsrSC 48(5) 749, 779; HCJ 200/83 Watad v. The Minister of Finance [1984] IsrSC 38(3), 113, 118-119; MQG Case, in paragraph 27 of President Barak’s judgment). The fundamental values of our legal system recognize legislative models in which the legislator incorporates into a law intended for a specific main objective, secondary objectives intended to promote important social purposes, even if there is not necessarily a tight link between them and the main objective of the law. For example, the main purpose of the Income Tax Ordinance is “[to] ensur[e] income for the public authority’s treasury,” but the legislature has also used the ordinance and taxation provisions to promote additional social purposes through which “[S]ociety fights phenomena that are perceived as negative. It encourages acts that it wants to encourage and deters acts it wants to prevent.” (Aharon Barak “Interpretation of Tax Law” Mishpatim 28, 425, 434 (1997); For example, see HCJ 2651/09 The Association for Civil Rights in Israel v. The Minister of Interior, paragraph 31 of Justice Danziger’s opinion (June 15, 2011)). The above also applies to customs laws intended mainly, to increase the State’s income, but at the same time serving additional purposes including the “regulation of the demand and the protection of local production and products.” (CA 2102/93 The State of Israel v. Miron Galilee Industrial Plants (MMT) Ltd. [1997] IsrSC 51(5) 160, 167). The objective of the National Insurance Law is to “guarantee proper means of existence for the insured, their dependents and survivors, whenever their income is reduced or disappears for one of the reasons set by the law.” (CA 255/74 The National Insurance Institute v. Almohar [1974] IsrSC 29(1), 11, 14). However, this law, like the other acts of legislation mentioned, promotes additional social purposes as well, such as incentivizing the social and public interest of delivering children in hospitals rather than at home (Section 42 of the National Insurance Law), performing amniocentesis for pregnant women aged thirty-five to thirty-seven (Section 63 of the National Insurance Law), and encouraging the integration of disabled persons into the workforce. (Section 222C of the National Insurance Law; and see in general, Abraham Doron “The Erosion of the Insurance Principle in the Israeli National Insurance: The Effect on the Functioning of the Israeli Social Security Scheme” Social Security 71, 31 (2006)).

Does each additional social purpose promoted by a law necessarily violate the constitutional right to equality by discriminating with respect to its general purpose? Of course not. The main question that ought to be examined in this context is not what is the relationship between the general purpose of the existing law and the additional purpose the legislator is seeking to promote, but whether, according to the general tests set in the Rekant Case and other cases which we mentioned above, the legislator has wrongfully discriminated between equals for the promotion of such purpose. For example, it was held in the past that granting tax benefits that are not based on pertinent distinctions or criteria is constitutionally discriminatory and wrongful. (Former) President Beinisch articulated this as follows:

Granting of tax benefits is tantamount, in economic terms, to granting public funds to selected individuals. Although it is true that the State does not directly transfer funds to taxpayers (and therefore it is commonly deemed as indirect support), essentially, the indirect support is tantamount to charging all taxpayers with tax payment, and in the second stage repaying it to selected individuals only. Such a distribution of public resources, without criteria, constructs a reality in which selected individuals are preferred over others, despite the fact that there is no relevant difference between them. This amounts to a blunt disrespect for a person’s equal status before the law.

(HCJ 8300/02 Nassar v. The Government of Israel, paragraph 46 (May 22, 2012) (hereinafter, “Nassar Case”) From the positive one can deduce the negative: the tax benefits intended to direct social behavior, although they do not directly derive from the objective of income tax, are not wrongful in themselves, unless they give preference to a group which is not relevantly different from another group.

The petitioners focused on the main purpose of the child allowances, i.e. the provision of social-financial support to those who are parents of children (this purpose also underwent many changes over the years, as arises from the comprehensive review of the legislative history in this regard, specified in the opinion of Justice Barak Erez). Based on this purpose, the petitioners argued that the relevant group of equals is all of the insured, as defined in Section 65(a) of the National Insurance Law, who are parents of children.

Indeed, this probably was the purpose of the child allowances on the eve of the Amendment to the law. However, the legislature has now revealed its view that it wishes to add a secondary purpose, which will affect a certain derivative of the increased allowance set in the Amendment (up to NIS 300 per family)—increasing the rate of vaccinated children in the population in order to promote the health of children and the public. As far as the normative ranking, this additional purpose does not differ from the objective of the child allowances before the Amendment, and in this sense the former purpose has neither priority nor exclusivity for the purpose of defining the relevant groups of equals. Because the normative ranking is identical, the examination of the argument of discrimination with regard to the Amendment to the law is different from an argument of discrimination in regulations or procedures of the executive authority, in that we are often required to examine the latter in reference to the purpose of laws ranking higher on the normative ladder. (See for example HCJ 9863/06 Organization of Fighter Leg Amputees v. The State of Israel – The Minister of Health, paragraphs 11-14 (July 28, 2008); HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSC 42(2) 221, 240-242; HCJ 4541/94 Miller v. The Minister of Defense [1995] IsrSC 49(4) 94, 108-110). On the constitutional level, it has been held in the past that legal provisions are discriminatory with respect to the purpose of the same law when a distinction irrelevant to the purpose for which the law was intended was made. (Nassar Case, paragraphs 39-42, 50-52 of the opinion of (former) President Beinisch; Yekutieli Case, paragraph 39 of President Beinisch’s opinion. In these cases, it was a law whose clear purpose pertains to a wide group, but whose clauses were “hiding” conditions that reduce its applicability to a specific group. (On hidden discrimination, see for example HCJ 1113/99 Adala Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Religious Affairs [2000] IsrSC 54(2) 164, 175; HCJ 1/98 Cabel v. The Prime Minister of Israel [1999] IsrSC 53(2) 241, 259-262). This is not the case here. The Amendment to the law which is the subject matter of this petition has altered the purpose of the child allowance in the sense that, similar to the tax legislation which promotes various public purposes, it includes the purpose of incentivizing child vaccination, incidental to promoting its general purpose as articulated above.

This does not complete the examination of the violation of the constitutional right of equality. As aforesaid, the group of equals is defined not only with respect to the purpose of the law, but also with respect to the essence of the issue, the fundamental values of the legal system, the special circumstances of the case and the prevailing social perceptions. Had the legislature sought to add to the child allowance scheme another purpose that created a distinction between groups that are not relevantly different from one another pursuant to these tests, such an addition would have violated the constitutional right to equality. For example, had the distinction been between groups, the belonging to which does not depend on choice but rather derives from various characteristics of the parents, it would have been justified to wonder whether these characteristics are relevant, according to the fundamental values of the legal system and the prevailing social perceptions. In such a theoretical case, it could not have been argued that the purpose of the Amendment to the law is to promote proper behavior of the parents, and it would have therefore been necessary to deeply examine whether there is indeed a relevant distinction that would justify preferring one group over the other. In addition, regarding the aspect of providing an incentive—positive or negative—for certain behaviors, it should be examined whether the distinction between the various behaviors justifies a distinction between the legal consequences that accompany them in accordance with the tests established in case law. However, in the case before us, not only did the petitioners not support the argument that these are equal groups according to the acceptable tests accepted in case law in this context, but, de facto, they agreed that this is a distinction between groups that may justifiably be treated differently because it is necessary to protect public health, at least according to the studies held by the Ministry of Health. Hence my conclusion that in this case, the distinction set forth by the Amendment to the National Insurance Law between parents who vaccinated their children and parents who refrained from doing so, with regard to the reduction of a set amount of child allowance, does not constitute a violation of the constitutional right of equality of the parents who chose not to vaccinate their children.
In HCJ 7245/10, an argument was raised on the discrimination of the Bedouins in the Negev based on the fact that this sector’s access to Family Health Center services is very limited and this sector consequently finds itself in an impossible situation where it has no access to vaccines and yet is being told to vaccinate. In my opinion, this argument does not establish constitutional grounds for a violation of equality; and insofar as it indeed transpires that pursuant to the Amendment any child allowance belonging to a parent who wished to vaccinate his child but was unable to do so due to lack of suitable access to a Family Health Center was reduced, this would, in my opinion, be a good argument to raise in the contestation and appeal proceedings set forth in Sections 68(i) and 68(j) of the National Insurance Law. Without addressing the argument on the merits, it should be noted that while these petitions were being deliberated, the respondents acted to increase access to Family Health Centers in the Bedouin sector in the Southern District (see details in paragraph 62 of the opinion of Justice Arbel), and the respondents have also presented figures that show that the vaccination rates in this sector are similar to the rates in the other sectors. Therefore, the discrimination argument insofar as it was raised with regard to the Bedouin sector should be rejected in this case.
Before concluding and, I would like to make two notes. One pertains to the nature of the reduction contemplated in the petition. Unlike my colleague, Justice Barak Erez (paragraphs 37-53 of her opinion), I believe that a reduction of child allowances by a set amount as a result of failing to vaccinate according to the Vaccination Program is a sanction and not conditioning. As I understand it, there is an obvious difference between the reduction set by the Amendment to the law and the conditions set forth with regard to eligibility for child allowances, including: the child’s presence in the State of Israel, the child’s age is below eighteen (Section 65(a) of the National Insurance Law [Consolidated Version], 5755-1995), the child is, generally, in the custody of an eligible parent (Section 69 of the National Insurance Law), and the parent is an “Insured” within the definition of Section 65(a) of the National Insurance Law. These and others are conditions to the receipt of child allowances, which guarantee that the allowance will be given to families whose characteristics fulfill the purpose of the child allowance. However, the nature of the reduction set by the Amendment to the law is different from these conditions in several respects. First, the amended law grants an increment to the allowance and alongside such increment also determines that certain amounts of this increment will be deducted from the allowance paid to the parent if the required vaccine is not given by the date set forth in the Vaccination Program. In the words of the provision, if the child is not vaccinated “the monthly child allowance paid for him will be reduced by the sum of NIS 100.” (Section 68(d)(1) of the National Insurance Law; the emphasis has been added). A “reduction” is, as its name suggests, the denial of a right that has been granted, and therefore, it seems that the words of the law and the mechanism chosen support the viewpoint that this is a sanction. Second, this is a reduction that is intended to motivate parents to vaccinate their children using a negative economic incentive that denies part of the allowance amount due to conduct that is inconsistent with the goal the legislature seeks to promote. Such a negative economic incentive bears, by its essence and purpose, the characteristic of a sanction and has a punitive hue that is directed against someone who chooses to jeopardize the health of his children and the health of the general public. In view of my position that we are faced with a sanction and not conditioning, I did not deem it necessary to address the doctrine and the auxiliary tests, which my colleague chose to develop at length in her opinion, with respect to the issue of conditioning. I will further note in this context that the position that we are faced with conditioning was not raised by any of the litigants, and in any event was not discussed and deliberated in the petitions at bar. For these two reasons, I believe this issue may be left for the opportune moment.

Another remark I would like to make as a side note follows. In my opinion, while the reduction at the center of the petitions neither violates the constitutional right to equality nor other constitutional rights and, thus there is no need to grant the remedy sought in the petitions—invalidating the Amendment to the law which sets the reduction—it is difficult to avoid the impression that in the case at bar, the legislature chose a “shortcut” in order to promote the Vaccination Program of the Ministry of Health. The fact that the legislator chose to enforce an administrative Vaccination Program, set by the Director General of the Ministry of Health (Section 68(d)(3) of the National Insurance Law) through a reduction in child allowances derives mainly, it seems, from considerations of efficiency. These considerations were expressed in the Statements of Raviv Sobel, (Former) Deputy Director of Budgets at the Ministry of Finance, in a deliberation held before the Finance Committee of the Knesset:

The data presented by Dr. Kedman regarding the ineffectiveness of the criminal supervision . . . PM Oron says that we will send an army of policemen, an army of controllers, and they will get the job done, but we see that this is not working . . . there are worse things for which the State of Israel does not indict people; and if someone thinks that the criminal tools are those through which all problems can be solved, just like they discovered around the world that this is not the way, it also became clear in Israel that this is not the way. Criminal tools are not enough. Therefore, certainly, financial incentives are also a tool.

(Minutes of the Finance Committee’s meeting of June 24, 209, on p. 44; Annex 2 to the preliminary response to the petitions on behalf of the Knesset).

Indeed, it is difficult to dispute the assumption that the imposition of a sanction based on the data relied upon by the authority, without having to confront the difficulties of its execution, makes the sanction highly efficient. However, without derogating from the importance of considerations of efficiency, it may have been proper to also take additional considerations into account. Perhaps, based on such considerations, it would have been appropriate to first enact a law that creates a vaccination requirement before imposing a sanction on its breach, which would also be set out in the same law. In other words, perhaps it would have been appropriate to take the statutory “highroad” and to regulate the entire issue of vaccination in a single act of legislation. In this context, it is noteworthy that if, for example, a criminal prohibition had been imposed on refraining from vaccinating children it would not have been possible to collect fines imposed on child allowances since national insurance allowances are non-attachable. (Section 303(a) of the National Insurance Law; Section 11 of the Tax Ordinance (Collection); and see also, Pablo Lerner “On the Attachment of Salaries in the Israeli Law”, Hapraklit [48] 30, 46 2005); David Bar Ophir, The Procedure and Case Law of Execution 893-894 (Seventh Edition, 2012)). Furthermore, the right to child allowances is a central and basic social right. This was expressed in both the petitioners’ arguments and in deliberations of the Knesset’s Finance Committee. For these reasons, and for other reasons that can be raised in this context, I believe that it would be appropriate to consider the use of other means to promote the proper purpose of encouraging child vaccination, such as through granting a positive economic incentive to those who vaccinate, or alternatively, through the use of different sanctions. In any event, because I have not found that the manner in which the legislature has acted violates a constitutional right, I concur with the result reached by my colleagues, Justices Arbel and Barak Erez, that the three petitions should be denied.

The conclusion of the judgment as per the opinion of Justice E. Arbel.

Issued on this date, 26 Sivan 5773 (June 4, 2013).

Full opinion:

Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Social Affairs.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/10/450/072/b18/10072450.b18.pdf

State v. Makor Rishon Hameuhad (Hatzofe) Ltd.

Case/docket number:

LCrimA 761/12

Date Decided:

Thursday, November 29, 2012

Decision Type:

Appellate

Topics:

Disclosure of information

Communications

State of Israel v. Makor Rishon HaMeuhad (HaTsofe).pdf

Freedom of Expression

Right to Privacy

Criminal Law

Evidence

Disclosure of documents

Abstract:

Facts: A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.

Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met. In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.

Applying the Citrin rule specifically to this case, the photographs satisfy the relevancy and substantiality requirements established in that case. However, the third requirement – a showing that the authorities have made sufficient effort to obtain the requested information through other means – has not been satisfied, although the police may submit such proof in a further request to the magistrate’s court for an order pursuant to section 43 of the Criminal Procedure Ordinance.

Voting Justices:

Rubinstein, Elyakim

Primary Author

majority opinion

Amit, Isaac

Author

concurrence

Vogelman, Uzi

Author

concurrence

Full text of the opinion:

LCrimA 761/12

1. State of Israel

1. Makor Rishon Hameuhad (Hatzofe) Ltd.

2. Miriam Tzachi

3. Israel Press Council, Amicus Curiae

The Supreme Court sitting as the Court of Criminal Appeals

Application for Leave to Appeal the Decision of the Jerusalem District Court (Judge M.Y. Hacohen), dated 3 January 2012, in MApp 035991-12-11

[2 April 2012]

Before Justice E. Rubinstein, U. Vogelman, I. Amit

Facts: A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.

Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met. In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.

Appeal is granted in part.

Legislation cited:

Criminal Procedure Ordinance (Search and Arrest) [New Version] 5729-1969, s. 43

Evidence Ordinance [New Version] 5731-1971, ss. 49, 50, 50a, 51

Penal Code, 5737-1977, s. 117

Prohibition of Defamation Law, 5725-1965

Protection of Privacy Law, 5741-1981

Israeli Supreme Court cases cited:

[1] MP 298/86 Citrin v. Israel Bar Association Disciplinary Court, Tel Aviv [1987] IsrSC 41 (2) 337.

[2] CrimApp 9305/88 A. v. Al Mamuniya Girls School (2008) (unreported).

[3] CA 1761/04 Sharon v. State of Israel [2004] IsrSC 58(4) 9.

[4] LCrimA 5852/10 State of Israel v. Shemesh [4] (2012) (unreported).

[5] HCJ 73/53 Kol Ha’am v. Minister of the Interior [1953] IsrSC 7 871.

[6] HCJ 243/62 Israel Film Studios Ltd. v. Levy [1962] IsrSC 16 2407.

[7] HCJ 14/86 Leor v. Film and Play Review Council [1987] IsrSC 41(1) 421.

[8] HCJ 680/88 Schnitzer v. Military Censor [1989] IsrSC 42(4) 617.

[9] LCrimA 7383/08 Ungerfeld v. State of Israel (2011) (unreported).

[10] CA 723/74 Ha’aretz Newspaper Publisher Ltd. v. Israel Electric Corp. [1977] IsrSC 31(2) 281.

[11] HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture [1984] IsrSC 38(3) 233.

[12] HCJ 1736/10 Lieberman v. Director of the Internal Police Investigations Department (2011) (unreported).

[13] HCJ 2759/12 Weiner v. State Comptroller (2012) (unreported).

[14] HCJ 172/88 Time, Inc. v. Minister of Defense (1988), IsrSC 42(3) 139.

[15] LCA 6546/94 Bank Igud Le’Israel Ltd. v. Azulai [1995], IsrSC 49(4) 54.

[16] LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency [2000] IsrSC 55(3) 661.

[17] LCA 2235/04 Israel Discount Bank Ltd. v. Shiri (2006) (unreported).

[18] CrimApp 4857/05 Fahima v. State of Israel (2005) (unreported).

[19] LCA 1412/94 Hadassah Medical Federation Ein Kerem v. Gilad [1995] IsrSC 49(2) 516.

[20] CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006] IsrSC 61(1) 461.

[21] CA 2967/95 Magen veKeshet Ltd. v. Tempo Beer Industries Ltd. [1997], IsrSC 51(2) 312.

[22] CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corp. [1994] IsrSC 48(3) 749.

[23] HCJ 337/66 Estate of Kalman Fital v. Holon Municipality Assessment Commission [1966] IsrSC 21(1) 69.

[24] LCA 2498/07 Mekorot Water Company Ltd. v. Bar (2007) (unreported).

[25] CA 5653/98 Peles v. Halutz [2001] IsrSC 55(5) 865.

[26] HCJ 844/06 University of Haifa v. Oz [2008] IsrSC 62(4) 167.

[27] LCA 8943/06 Yochanan v. Cellcom Israel Ltd. (2009) (unreported).

[28] CrimA 8947/07 Honchian v. State of Israel (2010) (unreported).

[29] CA 44/61 Rubinstein v. Nazareth Textile Industries Ltd. [1961] IsrSC 15(2) 1599.

[30] BAA 5160/04 Ashed v. the Jerusalem Regional Committee of the Israel Bar Association [2005] IsrSC 59(6) 223.

Israeli District Court cases cited:

[31] CC (Jerusalem) 455/94 Hachsharat Hayishuv v. Reshet Schocken Ltd. (1996).

[32] CC (TA) 721/95 Kazarshvili v. Bank Mercantile Discount [1995] 5756 District Cases (2) 402.

[33] MP (TA) 90742/09 Channel 10 News v. Moshe Katzav (2009).

[34] CC (TA) 1121/07 Glatt-Berkowitz v. Kra (2011).

[35] MP (Jerusalem) 2014/03 Kra v. State of Israel (2003).

United States cases cited:

[36] Branzburg v. Hayes, 408 U.S. 665 (1972).

[37] Gonzales v. Nat'l Broadcasting Co., Inc., 194 F.3d 29 (2^nd Cir. 1999).

[38] In re Grand Jury Subpoena, Judith Miller, 438 F. 3d 1141 (D.C. Cir. 2006).

[39] Heathman v. United States District Court, 503 F.2d 1032 (9^th Cir. 1974).

[40] Baker v. F & F Investment 470 F.2d 778 (2^nd Cir. 1972).

[41] Lewis v. United States, 517 F.2d 236 (9th Cir. 1975).

[42] In re Miller, 397 F.3d 964 (D.C. Cir. Ct. 2005).

Canadian cases cited:

[43] R. v. National Post, [2010] 1 S.C.R. 477.

[44] Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572 (S.C.C.).

[45] O'Neill v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389 (Ont. S.C.J.).

[46] Globe and Mail v. Canada (Attorney General) [2010] 2 S.C.R. 592.

For the petitioner – N. Granot

For respondents – H. Olman

For the amicus curiae – Y. Grossman, O. Lin, N. Shapira

JUDGMENT

Justice E. Rubinstein

1. This is an application for leave to appeal a decision of the Jerusalem District Court (Judge M.Y. Hacohen) in MiscApp 35991-12-11, issued on 3 January 2012. In that decision, the district court granted the appeal of the respondents against the decision of the Jerusalem magistrate’s court (Judge Rand) Misc. Order 27190-12-11, issued on 15 December 2011. The issue raised in this case is the application of a journalist’s privilege.

2. The case involves photographs taken by respondent 2 in the framework of violent demonstrations. After the events took place, the police asked respondent 2 (by way of issuing an order) to deliver to the police the pictures she had taken during the events. In response to the order, respondent 2 argued that the pictures were subject to the journalist’s privilege regarding the identification of her sources because their disclosure would lead to such identification. The main issue under dispute here is the scope of that privilege.

3. On the night of 12 December 2011 - 13 December 2011, Jewish demonstrators carried out violent disturbances at the Ephraim District Brigade Headquarters, and infiltrated the headquarters base and injured the Deputy Commander of the brigade. Following these events, on 14 December 2011, a request was made to the magistrate’s court for an order to produce documents pursuant to s. 43 of the Criminal Procedure Ordinance (Search and Arrest) [New Version] 5729-1969 (the Criminal Procedure Ordinance), in which the court was asked to order the respondents to deliver to the Israel Police photographs that documented the events.

4. The request was supported by the Deputy Brigade Commander’s statement (marked as P/1), in which the event was described as a mass infiltration of the District headquarters base, during the course of which one of the demonstrators hit the deputy commander’s head with an object, and lamps filled with paint were thrown at his vehicle. The deputy commander also stated that after the demonstrators were repelled, three tires were set on fire on the road leading to the district headquarters base, and that respondent 2 (hereinafter: “the photographer”) was found among the demonstrators, while she was photographing the events. She informed him that she worked for the Makor Rishon newspaper (which is operated by respondent 1).

5. The magistrate’s court ordered the production of the requested material and ruled that if a claim of privilege were raised, the material could be placed in a closed envelope and a hearing could be held in the presence of both parties; this is what actually occurred. During the hearing the petitioners argued that the photographer had not photographed the infiltration of the base and the attack on the deputy commander, but had instead taken pictures at a different event, which took place several hundred meters away from the base, in which no military commander had been attacked. It was also argued, and this is the main point, that the photographer had been invited to photograph the demonstration on condition that her sources not be disclosed in any manner.

6. In a decision dated 15 December 2011, the magistrate’s court emphasized that according to the rule developed in MP 298/86 Citrin v. Israel Bar Association Disciplinary Court, Tel Aviv [1], per President Shamgar (a case which was decided by a single judge panel but the rule of which has since been accepted as a deep-rooted principle), the journalist’s privilege is a qualified privilege that applies to the sources of the information; but this rule was expanded in the case law of the district courts, and has also been applied to the journalist’s information, when such information can lead to the disclosure of the identity of the source. It was nevertheless held that in this case the requested material is the information and not the source, and that there is no proof that the disclosure of the information will disclose the identity of the source.

7. The court therefore decided to remove the privilege. The court emphasized that the requested information was relevant to the investigation; that the alleged crimes were serious and that there was a public interest in exhausting all avenues of investigation as quickly as possible. The petitioners claim that the production of the photographs would lead to the disclosure of the identity of their source. The court emphasized that there had been no need for any source’s cooperation in the creation of the information being sought, since the information was “caught in the journalist’s net” and it could not be presumed that the removal of the privilege would have a substantial impact on the ability to gather such information in the future. The court therefore ordered that the material be produced. The petitioners appealed this decision to the district court.

The district court

8. There were three main issues in this appeal. The first was the applicability of an order to seize pursuant to s. 43 of the Criminal Procedure Ordinance in this case; the second was the magistrate court’s holding that a privilege that protects the sources of information does not apply to the photographs; and third, the manner in which the “three-part test” for the removal of the privilege was applied in accordance with the Citrin rule. We begin by noting that this test examines three points – the relevance of the material to an investigation, the nature of the information and the ability to obtain it from other sources.

9. The district court also ruled that application request for the seizure of journalists’ material pursuant to s. 43 of the Criminal Procedure Ordinance should not be used on a routine basis, since the police can use alternative means to access the material that they need. Nevertheless, the court held that the request was justified under the circumstances, because serious crimes had apparently been committed – crimes which require that they be investigated quickly – and because there were no other means with which the events were documented other than the photographer’s pictures. However, it has been noted that the magistrate’s court did not examine the matter of which investigative activities were carried out before the request was submitted, as required in the context of application request for an order pursuant to s. 43.

10. The court also noted that when a privilege claim is raised against an order pursuant to s. 43 of the Criminal Procedure Ordinance, the court must – as a preliminary step – review the material for the purpose of determining if it can potentially disclose the identity of a source. And thus, after the review, the district court found that a distinction could be made between two groups of pictures: those which conformed to the testimony of the deputy commander (on the basis of which the order was requested) and those which are not “direct documentation of the events described specifically in P/1” (which is the testimony of the deputy commander). The court noted that with respect to the pictures that conform to exhibit P/1, there was one series of pictures that documented three tires burning on the road, as well as pictures of IDF soldiers arriving at the site, and of an IDF officer speaking with an additional person. The court noted that there was no documentation of the person who had set fire to the tires or of the fact that they had been put on fire. Regarding the group of pictures that are not relevant to exhibit P/1, the court noted that these were part of a different series of pictures, which documented an event that could have had a serious criminal aspect to it, and that event did not appear to have taken place close to the army base, near it or in the presence of military personnel. It was also noted that a number of individuals appear at that event, some of whom can be identified; that there are no dates on these pictures, and they do not identify direct damage to persons or to property. This distinction – between the two groups of pictures – served as a basis for the court’s discussion of the question of the privilege and whether the tests set out in Citrin [1] for the removal of that privilege have been met. Before dealing with the question of the removal of the privilege, the court must deal with the scope of the privilege – which is the core of the dispute in this case.

11. The district court ruled that the journalist’s privilege extends not only to the sources of the information, but also to the journalist’s information itself, including photographs. The reason for this is to encourage sources to cooperate with journalists, as held in CC (Jerusalem) 455/94 Hachsharat Hayishuv v. Reshet Schocken Ltd. [31], per (then) Judge Adiel). It was noted that this approach has been the norm in the case law of the district courts, but has not yet been decided by the Supreme Court.

12. The district court did not adopt the test presented by the magistrate’s court for examining the application of the privilege. The magistrate’s court reasoned that the “fact that this was an event involving a large group and the fact that this was a documentation of something that happened ‘in the open’, and which was caught in the journalist’s net, is enough to undo the privilege claim”. The district court believed that the magistrate’s court erred in presuming that the pictures conformed to the event described in exhibit P/1; and that this error occurred because the magistrate’s court it did not review the pictures. The district court also found that, since the sources of the information had invited the photographer to memorialize the events, the magistrate’s court erred in finding that cooperation between the photographer and the source was not needed to create or obtain the information,.

13. It was stressed that according to the holding in CC (TA) 1121/07 Glatt-Berkowitz v. Kra [34] , per Judge Zamir, a contract arises between a journalist and a source who does not want to have his identity disclosed, and the exposure of the identity of that source would amount to a breach of contract; that the journalist and the source have a legal relationship of “neighbors”, and the journalist therefore owed a duty of care toward the source, and the disclosure of his identity could be considered to be the commission of a tortuous wrong; and that the special relationship between the source and the journalist is not only a private interest of their own, but is also an important interest for the entire public. It was held that under the circumstances, there is a public interest in honoring the agreement between the photographer and the source, so as not to deter informants from cooperating with journalists.

14. Regarding the application of the privilege in this case, the district court held that even though some of the pictures were photographed in public, the information is indeed covered by the journalist’s privilege in light of the photographer’s undertaking not to pass them on without the source’s consent. In order to examine the issue of whether it is necessary to remove the privilege, the court held that it must determine whether the tests developed in Citrin [1] have been satisfied. Regarding the first test (the issue of whether the photographs are relevant to the investigation) it was held, as stated, that the two series of pictures – the “burning tires” and the “remaining pictures” – should be treated differently. With regard to the “burning tires” group, it was noted, that in light of the respondents’ agreement to provide the police with any “direct documentation” of the events described in exhibit P/1, they must be delivered to the petitioner; and in any event, the court held, this was relevant documentation. As to the remaining photographs, which include pictures that appear to document an event that was potentially criminal, the court held that it does not conform to the description of the events in exhibit P/1, and the degree of its relevancy is therefore reduced.

15. With respect to the second test, the court held that the issue regarding which the order was sought was an important one in which the public had a very significant interest. Regarding the third test – the existence of an alternative method for obtaining the requested evidence – the court held that not enough had been done to obtain it. The court noted that in the hearing held on 22 December 2011, the respondents stated that they would not object to delivering the pictures, to the extent that they were direct documentation of the infiltration into the regional headquarters base and of the attack on the deputy regional commander.

16. In the course of its discussion of the scope of the privilege and before ordering that it should be removed, the district court distinguished between a public event to which a journalist or photographer is invited by sources, with a commitment being made to the source not to publicize information without the source’s consent, and a public event at which other photographers and filming crews are present – who were not invited by the participants. It was held that the privilege issue should be given extra weight in cases of the first type, in light of the importance of maintaining the trust that sources and journalists have in each other, and to prevent the “chilling effect” that could be created by a fear that information will not be kept confidential. However, it was also said that if a journalist has taken photographs at an event with an apparent criminal aspect, in a public space, and the photographer argues that a promise was made to the source not to publicize it, the court must question the journalist with regard to the sincerity of his claim before granting the petition for an order pursuant to s. 43 of the Criminal Procedure Ordinance. On the other hand, when a journalist is at the site of an incident, either as a matter of coincidence or having arrived there without the source having stipulated that material should be published only with his consent, it is doubtful that the privilege applies, and the material must be provided to the police.

17. In conclusion, as stated, the court held that a distinction should be made between the two groups of photographs. The series showing the burning tires were ordered to be handed over to the police. With regard to the remaining photographs, including those providing apparent documentation of a criminal event – the court held that insofar as an investigation has begun and the petitioner believes that this information is required, the petitioner can ask the court for an order pursuant to s. 43 of the Criminal Procedure Ordinance. Note that the court rejected a “supplementary argument” that the petitioner submitted, finding that it was an attempt to broaden the factual and legal picture with respect to exhibit P/1 and to add further facts, claims and descriptions that were not included in exhibit P/1, for the purpose of removing the privilege with respect to the second group of pictures as well.

The petitioner’s argument

18. The petitioner’s main argument is that the district court expanded the Citrin rule to reach the information itself and not just the sources of the information, and that other district courts have also expanded the rule in the same way – and that this expansion is inappropriate so long as the legislature had not seen fit to anchor the journalist’s privilege in any statute. The petitioner argues that the rationale underlying the journalist’s privilege – the public interest in having information flow from the sources to the journalists – is sufficiently protected by the granting of privilege to the sources of the information only, and that its expansion to cover the journalists’ information will lead to the flow of selective information, as dictated by the interests of the sources.

19. It is further argued that in this case the district court expanded the Citrin rule to reach not only the information that had been provided to the journalist and which can endanger the source, but also information that has not been provided to the journalist but of which the journalist became aware in the context of objective documentation, while he was present at a specific incident; and that the district court extended the privilege in this way because a promise had been given to a source not to publish the latter information without approval. It is argued that the application of the privilege only because of the existence of a promise given by the journalist to the source can also lead to the flow of selective information, as dictated by the interests of the sources.

20. Regarding the information itself – the pictures – the petitioner argues that the district court erred in distinguishing between the two series of photographs, in the sense that it did not view them as pictures of a single event related to the infiltration of the Efraim Regional Headquarters. The petitioner argues that the order pursuant to s. 43 turns on material that documents the “events on 12 December 2011- 13 December 2011 adjacent to the Efraim Regional Brigade Headquarters”. It was argued that the Deputy Regional Commander’s statement was provided to create the foundation for the request for an order, not in order to define and restrict the entire investigation to the narrow sector in which the events described in the statement occurred. It is also argued that the district court should have accepted the supplementary argument regarding the scope of the investigation – a matter which the state sought to appeal.

The respondents’ arguments

21. The respondents’ main position is that the disclosure of the pictures will expose the identity of the source and that the pictures are therefore covered by the journalist’s privilege. With regard to the scope of the privilege, the respondents’ argument is that according to various draft laws submitted over the years regarding the journalist’s privilege, the privilege should apply not only with respect to the identity of the source, but also to the journalists’ information. Regarding the application of Hachsharat Hayishuv [31], the respondents argue that since it had been held in this case – as a factual matter – that the disclosure of the pictures would lead to the disclosure of the source’s identity, there is no need to decide the issue of whether the journalist’s privilege will also apply to information in general, separately from its significance for the source or for the maintenance of confidentiality regarding his identity.

22. It is also argued that a contract is entered into between a journalist and the source regarding the non-disclosure of the source’s identity of the information other than with the consent of that source; that pursuant to the Rules of Professional Ethics of Journalism, a journalist may not disclose information (in accordance with the ruling of the district court, at p. 8, lines 13-15); and that the journalist owes a duty of care to the source because of the relationship between them, as the court held in Glatt-Berkowitz [34].

23. Regarding the public nature of the event that was documented, the respondents base their argument on the district court’s decision, and reject the petitioner’s sweeping claim that the privilege does not apply whenever the documentation is of an event that occurred in a public place.

24. The respondents’ rely on the district court’s ruling with respect to the application of the Citrin test as well, and argue that the pictures do not satisfy the relevancy requirement, because the district court held that as a matter of law, the pictures (other than the series depicting the burning tires) do not document the event described in exhibit P/1. The respondents also argue that the police did not exhaust all possibilities for obtaining the information from other sources before the appeal was made to the magistrate’s court for the issuance of the order. It should be noted that the respondents do not dispute that the second test– the existence of a significant issue – had been satisfied.

Position of the Press Council

25. The main position taken by the Press Council – which joined the case as an amicus curiae – is that the journalist’s privilege should also apply to the content of the information and not only to the identity of the source. According to the Council, in the years since the establishment of the rule of Citrin [1] (a case decided in 1986) a clear position has developed, indicating that information is protected by the privilege – a position which should be established in the case law of this Court as well. According to the Council, the privilege should apply to all information that the source provides to the journalist even if it was not provided directly to the journalist by the source, and to all information that reaches the journalist even if he obtained it solely through his own personal and professional activity without any source whatsoever having provided it to him. The Council reasons that the privilege should also apply to any analysis of such information that the journalist has carried out.

26. The Council argues that under the current circumstances, the authorities can bypass the privilege with respect to sources in various ways (such as a search of the newspaper’s offices or of the journalist’s own computer) and that the source can thus be identified and the entire objective of the privilege can thus be frustrated. It is therefore necessary to have the privilege apply to information as well, in order to ensure protection of the source. Another reason that the privilege should cover information is that the source often needs to give the journalist “background information” in order to establish his own reliability – but this information is not given for the purpose of having it made public.

27. It is also argued that the journalist’s privilege that appears in section 22 of the Rules of Professional Ethics of Journalism (approved by the Press Council on 16 May 1996) also applies to information given to a journalist “on condition that it remain undisclosed”; and that even though the violation of an ethical duty does not create legal liability, the court can determine the applicable behavioral standard by examining, inter alia, the ethical rules of the journalism profession.

28. It is also argued that the privilege should apply to information for contractual reasons, in light of the trust relationship that exists between the parties. If a party is likely to have his identity disclosed by a journalist, he will hesitate to provide information in which the public has an interest, such as corruption. The Council also argues that it is necessary for the journalist’s privilege to apply to information as well, in order to maintain journalistic independence and to prevent the profession from becoming a “governmental arm” of the investigative authorities – because at present, information is not protected by privilege, and the government can reach the source through the information, as stated, even if the privilege does apply to the source itself.

The main points of the discussion in the hearing before us

29. Attorney Granot argued for the petitioner that the district court expanded the scope of the privilege beyond what is necessary under the circumstances of the case, and applied it to information that does not serve to disclose the identity of the source. It is argued that this expansive view of the privilege was also applied in other district court decisions, and that this expansion harms the objective of uncovering the truth, which is the objective of the privilege itself. Attorney Ulman argued for the respondents that in the current case, the photographer was invited by her sources, and that the lower court had made a factual finding that the disclosure of the pictures would lead to the disclosure of the source’s identity. The respondents’ counsel also argues that the pictures have limited relevance (other than those that document the burning tires), and that the police did not carry out an exhaustive investigation before they applied for an order – meaning that the Citrin rules had not been satisfied. Regarding the scope of the privilege, it is argued that because the privilege is qualified and not absolute, it is proper that it should apply to a wide range of cases. Attorney Lin argued for the Press Council, noting that the protection of the source’s identity must be expanded to cover information that can lead to the disclosure of his identity as well.

Decision

30. We have decided to grant leave to appeal, and to deliberate the case as if an appeal had been filed in accordance with the leave that has been granted. And we have also decided to grant the appeal in part. We have three concrete issues that are presented in this matter.

The first is the request pursuant to s. 43 of the Criminal Procedure Ordinance to obtain the pictures.

The second is the issue of the application and scope of the journalist’s privilege to the pictures.

The third is the question of the removal of the privilege.

Nevertheless, it is obvious that our decision will have a broader significance with respect to the issue of the journalist’s privilege in general.

Section 43 of the Criminal Procedure Ordinance (and the argument regarding privilege in the context thereof)

31. Section 43 of the Criminal Procedure Ordinance provides as follows:

“If a judge finds that a particular item is necessary or desirable for the purpose of the investigation or the trial, the judge may summon any person in whose possession or property it is presumed the item may be found, to present himself and present the item, or to produce the item at the time and place indicated in the summons.”

In general, a request for an order pursuant to s. 43 may not be submitted if there is an alternative method which would have a lesser impact on the autonomy of the party to which the order is issued. Requests pursuant to s. 43 are intended for cases in which a regular search and seizure proceeding is not sufficiently effective, such as when it can be presumed that the party holding the item will refuse to deliver it. The section is usually used at the police investigation stage of a criminal proceeding, and its main purpose is to move the investigation along (see CrimApp 9305/88 A. v. Al Mamuniya Girls School [2] , per Justice Arbel, at para. 8).

32. The section has two threshold requirements, which must both be satisfied – the need for the item for the purpose of the investigation, and the possibility that it is in the possession of the party to whom the order is issued. The fulfillment of these two requirements are met does not mean that an order must be issued, but it does mean that the court will consider whether it should be issued (CA 1761/04 Sharon v. State of Israel [3] , at p. 14). In the context of this consideration, “the court must take into consideration the substantive connection between the material being requested and the needs of the investigation, and the degree to which this information is relevant” (LCrimA 5852/10 State of Israel v. Shemesh [4] , per President Beinisch, at para.11). And the most important requirement for the purposes of this case: there is generally no justification for using the section if the investigating authority has other means of obtaining the documents that it needs (Sharon v. State of Israel [3], at p. 15).

33. A request pursuant to s. 43 of the Criminal Procedure Ordinance is generally made, at the first stage, in the presence of the applicant. If the party possessing the item objects to a request to deliver it before he has been allowed to present his arguments against its delivery, an additional hearing is held, and the court hears the party’s objections (compare, Y. Kedmi, On Criminal Procedure, Part 1, B, 755 (updated 2008); CC (TA) 721/95 Kazarshvili v. Bank Mercantile Discount [32]). The power to issue an order pursuant to this section includes the power to exercise judicial review for the purpose of examining the fulfillment of the section’s purpose; thus, even after the order has been issued and an argument has been made against the order – such as an argument based on the journalist’s privilege – the court has the discretion to decide whether or not to cancel it (Sharon v. State of Israel [3], at pp. 19-20). To sum up, when the court is faced with a request pursuant to s. 43, it can decide whether or not to grant the it on the basis of considerations that arise within the context of s. 43; it can also reject the request if it finds that the journalist’s privilege claim should be granted and that there are no grounds for removing that privilege.

34. After reviewing the photographs, the district court found that the police had not carried out enough investigative work, as required in the context of a request for an order pursuant to s. 43 (at p. 6, line 26-28; and at p. 11, at para. 22). Nevertheless, the district court did not cancel the order for this reason, because the respondents agreed to produce any material that contained direct documentation of the event described in exhibit P/1. Therefore, we now face the issue of determining what is covered by the journalist’s privilege and what the grounds for its removal are. I will therefore add, for the sake of emphasis, that it is appropriate, in my view, for a court facing a claim of privilege to see the material in question and to review it, so that it will not be feeling its way in the dark. In my view, this is a self-understood test, and would be the way to respond to any claim of privilege or confidential material, etc.

35. I believe that the district court’s determination that the police had not carried out sufficient investigative work was sufficient ground for cancelling the order (at p. 6, para. 13 of the district court’s judgment). The court chose not to cancel the order, because the respondents had agreed to deliver the material that was direct documentation of what had been described in exhibit P/1. I find the reliance on this reason to be problematic, for two main reasons.

36. First, it appears that we cannot say that the respondents’ counsel “agreed” to provide the pictures as stated; rather, he clarified that if there was direct documentation of the events described in exhibit P/1, it could be presumed that the court would remove the privilege. He noted that “as to the court’s question, I respond . . . that if the pictures show one of the demonstrators hitting the Deputy Brigade Commander, then according to the required considerations, I would have certainly have expected the court’s decision to be that the pictures should be disclosed” (District Court transcript for 22 December 2011, at p. 6, lines 17-19), and later on “all that is needed to determine is whether the pictures document the attack. And if they do, there is reason for disclosing them because of the seriousness of the event, and the balancing that has been prescribed in the case law” (at p. 7, lines 30-32). These remarks should be seen in light of the fact that the respondents’ counsel knew at that stage that the pictures do not directly document the attack on the Deputy Brigade Commander. The counsel made this argument several times (for example, at p. 4, lines 30-32); however, the main principle within the respondents’ argument, throughout the entire trial was – and remains – that all the pictures are subject to the privilege and that they should not be disclosed.

37. Second, and this is the main point: even if the respondents’ counsel had in fact, with these remarks, agreed to hand over the pictures that included direct documentation of what is described in exhibit P/1, to the extent that he believed that the privilege applied to such pictures – it appears that it was not in his power to give such consent. The journalist’s privilege is a qualified privilege, and only the court has the authority to remove it. The power to waive the privilege is given to the source and only to the source. (Y. Kedmi, On Evidence Part 3, (2009) (Hebrew), at p. 1147). The litigants participating in the trial cannot consent to remove the privilege from the material, which does not belong to them, other than with the consent of the source (ibid., at p. 1017). Throughout the proceedings, the respondents’ claim was and remained that the disclosure of the information will lead to the disclosure of the source; and that the source had been promised that the information would not be disclosed. All of this indicates that the cited remarks made by the respondents’ counsel cannot be relied upon as the basis for a waiver of the privilege. This is also indicated by the fact that in practice, before the court directed that the “agreed upon” pictures should be handed over, the court discussed the question of whether the Citrin tests regarding the need to remove the privilege have been satisfied.

38. In summation – an order to produce items pursuant to s. 43 of the Criminal Procedure Ordinance and an argument based on privilege are two different matters. When, on the face of the matter, it appears that the conditions of s. 43 have not been satisfied, the court need not deal with the privilege claim. However, where a privilege claim has been raised, it will be discussed and the claim will be heard; nevertheless, for the purpose of issuing an order, the s. 43 conditions must be met as well as the conditions for removing the privilege. Once the court found that the police had not carried out sufficient investigative work, as the rules regarding s. 43 issues require, this was sufficient – as stated – to lead to the cancellation of the order on the basis of this approach.

39. Since the court had instructed that some of the pictures should be handed over, on the basis of the tests for the removal of the privilege as established in Citrin [1] – and because it established, as a starting point for this purpose, that the privilege applies to the photographs – I will discuss these two stages.

Scope of the journalist’s privilege

40. In Citrin [1] the court established a common law privilege that allows the journalist not to disclose the sources of his information (ibid., [1], at pp. 360-361), subject to the possibility that the privilege should be removed – as stated – in if the subject is relevant and substantive and is required for an investigation, in the absence of other evidence. In the instant case, the photographer was not asked to disclose her sources, but rather to hand over photographs that had been taken at the scene of the Ephraim District Brigade Headquarters base events. The respondents objected on the basis of a journalist’s privilege claim. The district court held that under the circumstances, the privilege applied to the photographs (i.e., the information), because the delivery of the pictures could lead to the disclosure of the identity of the source. This holding raised the question of the scope of the journalist’s privilege – which is the main point of the dispute that is to be decided here.

41. Chapter C of the Evidence Ordinance establishes a number of privileges, among them privileges for various professionals such as attorneys, physicians and psychologists. The journalist’s privilege was not included in this list of statutory privileges; rather, it was created in the framework of case law. This was discussed at length in Citrin [1]. The legislature’s silence on this matter despite various attempts that were made to enact legislation regulating this issue was not interpreted as a negative arrangement, and it was held that the creation of an evidentiary rule that recognizes the journalist’s privilege reflects the recognition of freedom of expression and of the freedom of the press that flows from it. It was held that a privilege that allows a journalist not to disclose the sources of his information should be recognized (Citrin [1], at paras. 9-11, 15).

42. We will first survey the attempts to enact a statutory privilege following the court’s adoption of the Citrin rule. This survey will document the dispute regarding the scope of the journalist’s privilege. Next, I will briefly discuss the status of the privilege in the laws of other countries. Following that, I will present the reasons for recognizing a privilege for information, and the difficulties that such a privilege entails. Against this background, I will present the scope of the journalist’s privilege and discuss the consequences of that scope. Finally, I will relate to the determinations made in the district court’s judgment.

Attempts to legislate and the Maoz Committee

43. After the decision in Citrin [1], a number of attempts were made to pass legislation on the issue – but none ripened into an enacted statute. In 1993, a Committee to Examine the Journalist’s Privilege (hereinafter: “the Maoz Committee”) was established; its chair was Professor Asher Maoz, from Tel Aviv University Law School. The majority opinion presented in the Committee’s 1994 report recommended that the Evidence Ordinance be amended to include a journalist’s privilege, in the following language:

‘A person who has received items and documents due to his work as a journalist (hereinafter: “the information”) will not be required to disclose them, if the disclosure of the items or documents is likely to disclose the identity of the person who provided the information or if the information was given to such a person on the condition that it would not be disclosed, unless the court finds that it must be disclosed or if the informant has agreed to the disclosure’ (Emphases added – E.R.)

44. This text anchors the privilege first with respect to the identity of the source, and second, with respect to the information that was given with a promise that it would not be disclosed, subject to a court ruling requiring its disclosure.

45. The committee’s recommendations have not yet been realized over the course of the 18 years that have passed since the publication of its report. Over the course of those years, a number of draft laws, with various texts, have been proposed. Among others, a draft law was proposed in 2003 in the form of a private bill, by MK Avshalom Vilan (Pr./189), according to which “a journalist is not obligated to hand over evidence or information which can serve to identify the parties who were the sources of the information . . .” The explanatory material indicated that the purpose of this proposal was to anchor only a “privilege for sources”, which would also include information that leads to the disclosure of the source. In 2003, another private draft law was submitted by MK Zehava Galon (Pr./664), with the following language: “A journalist is not required to provide evidence concerning information or an item that he obtained through his work, if such information or item is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them, or evidence regarding the identity of the person who provided the item or the information . . .” (emphasis added – E.R.). The explanatory material accompanying that draft indicated that this referred to a “privilege for sources and information” which would apply not only to the source but also to the information that the source provided. An identically worded proposal was submitted in 2006 as well (Pr./17/220). The Knesset did not enact any of these draft laws as statutes.

46. Additional draft laws were submitted in 2011 (Pr. 18/2840 and Pr. 18/2870), and these were similar in their essence to the earlier proposals. The language of the first of these was as follows:

‘A journalist is not required to provide evidence concerning information or an item which he obtained through his work, if such information or item is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them, or evidence regarding the identity of the person who provided the item or the information, unless the person has waived confidentiality, or a court has found that the evidence must be disclosed.’ (Emphasis added – E.R.)

The main output of the Maoz Committee

47. We need to briefly note the products of the Maoz Committee’s work. The committee’s deliberations focused on four subjects: an examination of the situation regarding the journalist’s privilege, in practice; the need for the existence of the privilege and the dangers resulting from it; the desired scope of the privilege; and the need to anchor the privilege in a statute. (Maoz Committee Report, at p. 3). Various parties – including judges, police personnel, officials from various government authorities, and journalists – testified before the Committee regarding the implications of the privilege for their respective fields of work. The laws of other countries were also examined.

48. Regarding the question of the scope of the journalist’s privilege, the Committee decided unanimously that it must apply to all the information that could lead to the disclosure of the identity of the source. However, a dispute arose between the majority and the minority views regarding the application of the privilege to different types of information.

49. The majority’s opinion was that the privilege should apply both to information that was likely to lead to the identification of the source, and to information regarding which the journalist had agreed with the source that it would not be disclosed, such as “background information” the purpose of which is to boost the reliability of the source and his story – meaning that the privilege would be for sources and information. The minority group within the Committee proposed that the privilege should apply to the identity of the source and to any item that is likely to disclose the source’s identity – meaning, the privilege should be a privilege for sources (at pp. 15, 25 and 46). To complete the picture, I note that the minority position – unlike that of the majority – understood that the privilege should be absolute – (except if the case involves a serious crime), such as the respondents are seeking to have applied, in this case, in one way or another.

50. This survey leads to the following conclusion: first, the common denominator among all the draft laws and the Maoz Committee minority view was that the privilege should apply to the identity of the source and to information that would lead to the identification of the source. Second, both the draft laws from the years 2006-2011 and the proposal offered by the Maoz Committee majority opinion sought to anchor a privilege for both sources and information, but they were divided regarding the nature of the information to be protected by the privilege. The majority referred to a privilege for “items and documents . . . (hereinafter: “the information”) . . . if the information was given to such a person on the condition that it would not be disclosed”, while the draft laws referred to “information or an item – which is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them.” Thus, the privilege proposed by the Maoz Committee was one that was conditioned on an agreement between the parties, while the privilege in the draft laws was conditioned on the manner in which the court interpreted the nature of the information.

The case law of the district courts

51. The issue arose in the district courts in Hachsharat Hayishuv [31], mentioned above; in MP (TA) 90742/09 Channel 10 News v. Moshe Katzav [33] and the already noted Glatt-Berkowitz [34], (para. 25). In Hachsharat Hayishuv Judge Adiel noted (in para. 25) “that the privilege must apply in principle to the information as well and not only to the source’s identity”, if the source had conditioned the provision of the information on the preservation of confidentiality. In Channel 10 News [33], (the then) Judge Mudrik wrote that “I personally believe that the existing privilege also includes protection of the content of the journalists’ information which the journalist promised to keep confidential, and not only narrow protection for the identity of the source”; see also Glatt- Berkowitz [34].

Comparative Law

52. The two parties found support in the laws of other countries. And this is as it should be: the subject, by its nature, has been dealt with by the institutions of every country in the free world. The respondents described a picture in which the scope of the privilege in a number of Western countries provides protection for both a journalist’s sources and for his or her information. The petitioner, on the other hand, presented a different picture, according to which in the common law countries, the status of the journalist’s privilege and its scope, are – at the very least – unclear. The purpose of this survey is not to identify the scope of the optimal privilege. As will be described below, the matter depends on, inter alia, the legal system of each country, the structure of each country’s legal system, and the interface between the privilege and the country’s other laws. In any event, there are no exact matches between the character of the privilege in different countries. However, this survey can shed light on the search for the various balances that can be reached between the need to expose the truth and to maintain a privilege for sources, and the rationale at the basis thereof.

U.S. law

53. The United States Supreme Court dealt with the issue of the journalist’s privilege forty years ago in Branzburg v. Hayes [36]. Branzburg was a journalist who wrote an article about drug use in Kentucky. For the purpose of understanding the issue, he consulted with a number of drug users. Following the article’s publication, Branzburg was subpoenaed to testify before a grand jury (a proceeding leading up to an indictment) about his sources. Branzburg argued that he was protected by the journalist’s privilege, which he sought to derive from the American Constitution’s First Amendment – the Amendment that established, inter alia, the freedom of the press. The majority opinion in the case was written by Justice White. The question to be decided was whether a journalist who had been subpoenaed to testify before a grand jury and to respond to relevant questions regarding the crime being investigated could be protected by a journalist’s privilege rooted in the First Amendment. As Justice White wrote: “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of a crime” (ibid. at p. 682). The Justice believed that a journalist is no different from any other person who was called to appear before a grand jury in the framework of a criminal investigation, and rejected the claim that the journalist’s privilege was anchored in the First Amendment to the American Constitution. The minority opinion was written by Justice Stewart, who supported the recognition of the privilege within the context of the Constitution (ibid. at pp. 725-726). As he wrote: “The reporter’s constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution’s protection of a free press” (ibid. at pp. 725-726). According to him, the free flow of information is a cornerstone of a free society; and the provision of broad and varied information to the citizen not only allows the citizen to learn about different opinions, but also allows for the monitoring of government authorities. Justice Steward found that the ability of the press to gather information depended on the protection of the sources of the information – protection that was based on the Constitution (ibid. at pp. 728-729):

‘[T]he duty to testify before the grand jury 'presupposes a very real interest to be protected.' Such an interest must surely be the First Amendment protection of a confidential relationship …. [T]his protection does not exist for the purely private interests of the newsman or his informant, nor even, at bottom, for the First Amendment interests of either partner in the newsgathering relationship. Rather, it functions to insure nothing less than democratic decision-making through the free flow of information to the public, and it serves, thereby, to honor the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' […]. In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that, because of their 'delicate and vulnerable' nature […], and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards’ (ibid. at pp. 737-738).

54. The majority opinion should be understood against the background of the structure of the American legal system. The Branzburg [36] decision referred to the issue of a journalist’s privilege arising in the framework of the First Amendment to the American Constitution, and – as noted – rejected the defense argument based on such a privilege, based on the argument that no such protection applied in a proceeding before a federal grand jury. However, this holding did not rule out the possibility of state-enacted statutes that recognize a journalist’s privilege. Indeed, following Branzburg [36], forty-nine states (all the states but one) and the District of Columbia (in which the country’s capitol city, Washington, is located) enacted state laws that anchored a journalist’s privilege – with different states establishing different ranges of protection. Some of these statutory privileges cover sources only; others provide protection both for sources and for information. Keith Werhan, Rethinking Freedom of the Press after 9/11, 82 Tul. L. Rev. 1561, 1589 (2008)). Thus, for example, California established a privilege for sources and for information which applies both to information obtained through the gathering of materials that are meant to be published, and to information the publication of which is not intended (Cal. Constitution art. 1 § 2). The District of Columbia established an absolute privilege regarding the identity of the source (D.C. Code § 16-4702 (2001), and a privilege for information which can be removed if various tests that are prescribed in the statute are satisfied. (D.C. Code § 16-4703 (2001). Florida established a qualified privilege for sources and for information (Fla. Stat. Ann. § 90.5015 (West 2004), as was established in Connecticut (Conn. Gen. Stat. Ann. § 52-146t (West)) and in Colorado (Colo. Rev. Stat. Ann. § 13-90-119 (West 2004)).

55. Following the Branzburg [36] decision, various federal courts also recognized a journalist’s privilege for sources and for information. Thus, for example in Gonzales v. Nat'l Broadcasting Co., Inc. [37],(, the Second Circuit recognized a journalist’s privilege and held that it applied to both sources and information.

56. Nevertheless, the trend toward anchoring a privilege in state statutes and in state judicial decisions came to a stop, to a certain degree, after the events of September 11, 2001 (see D. Ronen, The Law of Censure: Media, Freedom of Expression and National Security (2011) (Hebrew), at pp. 145-147). Thus, for example, in In re Grand Jury Subpoena, Judith Miller [38], a senior government official, Lewis Libby, the chief of staff of Vice President Dick Cheney, was suspected of having committed perjury. Various journalists were called to testify, including Judith Miller, who refused to testify about her sources and was sent to prison for contempt of court because of her refusal. The three judges on the panel of the DC Circuit Court of Appeals returned to the rule of Branzburg [36], according to which there is no federal constitutional protection for a journalist’s confidentiality. The Court did address the alternative argument regarding a privilege based on federal common law, and rejected that argument. Judge Tatel, in his concurring opinion, wrote that in principle, a federal common law privilege should be recognized:

‘In sum, “reason and experience,” as evidenced by the laws of forty-nine states and the District of Columbia, as well as federal courts and the federal government, support recognition of a privilege for reporters’ confidential sources. To disregard this modern consensus in favor of decades-old views, as the special counsel urges, would not only imperil vital newsgathering, but also shirk the common law function assigned by Rule 501 and “freeze the law of privilege” contrary to Congress's wishes’ (ibid. at p. 1172).

57. This Appeals Court decision creates some doubt concerning the relevence herein of the state legislation and case law. It should be recalled that the case was heard in the federal district court for the District of Columbia, which, as has been noted, confers a wide-reaching journalist’s privilege. However, the existence of a state statute is not binding when a case arises at the federal level, although federal courts have found that such legislation should be reviewed. In one such federal decision, the Court of Appeals for the Ninth Circuit wrote as follows:

‘In determining the federal law of privilege in a federal question case, absent a controlling statute, a federal court may consider state privilege law. Heathman v. United States District Court [39], , at 1034 (9th Cir. 1974); Baker v. F & F Investment [40], ;, at 781-82. But the rule ultimately adopted, whatever its substance, is not state law but federal common law’ (Lewis v. United States [41], , at p. 237).

In addition, Rule 501 of the Federal Rules of Evidence provides as follows:

‘The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.’

58. This survey shows that the existence of a state statutory privilege or one that has been established in the case law of the state courts – even if such privilege enjoys a broad scope – does not guarantee protection for a journalist in a federal court. The impact of the existence of state protections, even when they apply to both the source and the journalist’s information, is limited – due to the structure of the American legal system. While state privileges grant wide protection the net of relations between a journalist and his sources, and to journalists in general, the lack of a parallel provision at the federal level, as well as the holding in Branzburg [36], point in a different direction, toward a limitation of the privilege

Canada

59. Canada has no arrangement that anchors a journalist’s privilege in a statute. Section 2 of the Canadian Charter of Rights and Freedoms lists a number of fundamental freedoms. Sub-section (b) provides as follows: “[Everyone has the] freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. In 2010, the Canadian Supreme Court heard an appeal brought by a newspaper, challenging an order instructing the newspaper to hand over a document that could have led to the identification of its source. (R. v. National Post [43]). The document was required for the purpose of exposing a forgery. The appellants argued that a journalist’s privilege had been established in s. 2(b) of the Charter of Rights and Freedoms. The Supreme Court rejected this argument and held that the value protected in the Charter is the right to freedom of the press only. The Supreme Court emphasized that:

‘The law needs to provide solid protection against the compelled disclosure of secret source identities in appropriate situations but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source would not in general violate s. 2(b)’ (ibid. [43], at para. 38).

60. The Court went on to reject, as well, the argument that the privilege is established in the common law, and noted that:

‘Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board) [44],), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities’ (ibid. [44], at para. 41).

61. Finally, the Court did recognize a case-by-case privilege, and held that the party claiming the privilege bears the burden of persuasion regarding the fulfillment of the conditions for the application of that privilege. The Court did not provide any clear outlines for the scope of the privilege, stating that:

‘When applied to journalistic secret sources, the case-by-case privilege, if established on the facts, will not necessarily be restricted to testimony, i.e. available only at the time that testimony is sought from a journalist in court or before an administrative tribunal. The protection offered may go beyond a mere rule of evidence. Its scope is shaped by the public interest that calls the privilege into existence in the first place. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant, as in O'Neill v. Canada (Attorney General) [45], . The scope of the case-by-case privilege will depend, as does its very existence, on a case-by-case analysis, and may be total or partial’ (ibid. [45], at para. 52) (Emphasis added – E.R.)

62. It appears that Canadian law resembles the United States law, beyondthe degree of the protection provided by the law – meaning the scope of the protection provided through the privilege; in neither system is it entirely clear that the privilege actually exists in a particular case. The Canadian Supreme Court noted in this context that:

‘The bottom line is that no journalist can give a source a total assurance of confidentiality. All such arrangements necessarily carry an element of risk that the source's identity will eventually be revealed. In the end, the extent of the risk will only become apparent when all the circumstances in existence at the time the claim for privilege is asserted are known and can be weighed up in the balance. What this means, amongst other things, is that a source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability. This much is illustrated by recent events in the United States involving New York Times' reporter Judith Miller and the subsequent prosecution of her secret source, vice-presidential aide Lewis "Scooter" Libby, arising out of proceedings subsequent to his "outing" of CIA agent Valerie Plame: In re Miller, 397 F.3d 964 (D.C. Cir. Ct. 2005) [42], at pp. 968 -72. The simplistic proposition that it is always in the public interest to maintain the confidentiality of secret sources is belied by such events in recent journalistic history’ (R. v. National Post [43], at para. 69).

63. Later, in a different case (Globe and Mail v. Canada (Attorney General) [46], para. 19-25), the Canadian Supreme Court again heard the claim that the journalist’s privilege could be derived from s. 2(b) of the Charter. The Court rejected the argument unanimously, on the basis of the reasons expressed in the holding in R. v. National Post. Nevertheless, the Court repeated its earlier determination that the privilege could be found to apply on a case-by-case basis.

France

64. Section 1 of the French Law of Freedom of Expression, enacted in 1881 (Loi sur la liberte de la press du 29 juillet 1881 (amended 4 July 2010), provides that “Le secret des sources des journalistes est protégé dans l'exercice de leur mission d'information du public.” (“The secrecy of a journalist’s sources is protected in the exercise of their mission to provide information to the public.”) The section protects the sources of the information and does not refer to the protection of a journalist’s information. This section has been amended several times, most recently in 2010. Sub-section (3) refers to the possibility of restricting the privilege with respect to the sources of information, either directly or indirectly, and conditions such a restriction on an essential public interest in the disclosure and on the use of methods for disclosure that are very necessary and proportionate to a legitimate purpose, but it does not obligate the journalist to disclose his sources. Sub-section (4) continues sub-section (3), and provides that an attempt to locate a source by asking a third party – meaning a party who is not a journalist or the source himself – will be deemed to be, in the language of sub-section (3), an “indirect restriction”. Sub-section (5) establishes the tests to be applied in determining whether the privilege should be removed, and these include the severity of the crime, the importance of the information for the purposes of the prevention or punishment of the crime, and the degree to which this measure is needed in order to uncover the truth.

65. In 2010, s. 5-100 was added to the Criminal Procedural Code, in the following language:

‘A peine de nullité, ne peuvent être transcrites les correspondances avec un journaliste permettant d'identifier une source en violation de l'article 2 de la loi du 29 juillet 1881 sur la liberté de la presse.’

And, translated into English:

‘On penalty of nullity, no transcription may be made of any correspondence with a journalist to identify a source in violation of Article 2 of the law of the 29th of July 1881 on the freedom of press.’

This section supplements the 1881 statute, and prohibits the copying of correspondence held by a journalist which identifies the journalist’s source. In addition, s. 109 of the French Criminal Procedure Code provides as follows (translated into English): “Any journalist heard as a witness in respect of information collected in the course of his activities is free not to disclose its origins.” According to the section as well, the privilege applies only so as to protect the identity of the journalist’s sources.

66. An additional method for preventing circumvention of the 1881 statute is derived from the provisions of the criminal procedure code relating to a search. The beginning of s. 56 of the Code contains provisions relating to the conduct of a search for evidence that was used in the commission of a crime or which relates to a crime that has been committed. Section 56-1 limits the ability to search an attorney. Similarly, s. 56-2, dealing with the conduct of a search of a journalist’s property, and permits such a search only after an order has been obtained from a judge or a prosecutor – an order which ensures that the search does not violate the journalist’s “freedom of exercise” and does not obstruct or delay the collection and creation of information in a manner that is not justified:

‘A search of the premises of a press or audio-visual communications business may only be made by a judge or prosecutor who ensures that such investigations do not violate the freedom of exercise of the profession of journalist and do not unjustifiably obstruct or delay the distribution of information.’

67. Similarly, s. 77-1-1 provides that under certain circumstances, any person, institution or public or private organization can be ordered to provide documents (including computerized data). The section qualifies its application to the various professionals mentioned in sections 56-1-56-3 (a journalist is one of these), and requires that any production of documents must be with their consent. In 2011, a French High Court (Criminal and Civil) decision dealt with a request from the police to be allowed to obtain, from the phone company, a printout of a certain journalist’s mobile phone calls. The court saw this request as an attempt to bypass s. 77-1-1 and held that the privilege applied under the circumstances. The court emphasized that s. 77-1-1 should be interpreted in light of the 2010 amendment of s. 2 of the 1881 Freedom of the Press Law (Cass. Crim., Dec. 6, 2011, no. 11-83.970).

68. The above shows that French law provides comprehensive protection for the identities of the sources of information, and this includes the protection of any information that leads to the exposure of a source’s identity; however, this protection does not extend to the entire relationship between the journalist and the source, and does not apply to information that does not lead to the exposure of the source’s identity. Such protection, referred to as professional confidentiality, is established in section 226-13 of the French Criminal Code. In English translation: “The disclosure of secret information by a person entrusted with such a secret, either because of his position or profession, or because of a temporary function or mission, is punished by one year’s imprisonment and a fine of €15,000.” The courts have interpreted this section as applying to attorneys, doctors, and priests, but in connection with journalists – the interpretation has been that it applies only with respect to the identification of the sources of information. (Muriel Giacopelli, “Obligation de deposer”, Repertoire de droit penal et de procedure penal, Editions Dalloz, 2012).

Other countries

In England, s. 10 of the Contempt of Court Act, 1981 (“Sources of Information”) establishes a qualified privilege regarding the identity of the sources of information:

‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.’

We see that a privilege with respect to sources is recognized, subject to the “interests of justice or national security or . . . the prevention of disorders or crime.”

69. In Germany, s. 53 of the German Procedure Law (captioned “Right to Refuse Testimony on Professional Grounds”) protects both the sources of the information and the journalist’s information. As translated into English:

‘The persons named in number 5 of the first sentence may refuse to testify concerning the author or contributor of comments and documents, or concerning any other informant or the information communicated to them in their professional capacity including its content, as well as concerning the content of materials which they have produced themselves and matters which have received their professional attention. This shall apply only insofar as this concerns contributions, documentation, information and materials for the editorial element of their activity, or information and communication services which have been editorially reviewed.’

70. The non-exhaustive picture outlined above indicates that the law in other countries is not uniform with regard to the status or the scope of the journalist’s privilege. Nevertheless, where the privilege is recognized – either by statute or by local case law – the privilege is generally understood to provide protection for information that will lead to the disclosure of the identity of the source; it is less commonly understood that the protection reaches information in general. When the privilege is not recognized at all, the reason for such non-recognition is the concern that the assertion of the privilege will do unnecessary harm to the principle of the need to uncover the truth. We will now, taking all this into account, return to our discussion of the situation in Israel.

Interim summation

71. In Israel, the need for a limited privilege for sources is undisputed. The difficulty arises when a journalist claims the privilege with respect to the journalists’ information itself. In Channel 10 News [33], Vice President Mudrik wrote as follows:

‘The claim of a privilege for the sources of journalists’ information presents considerable difficulty. The difficulty is caused by the fact that the privilege, which is the product of judicial decisions, is self-delineated by its purpose of protecting the identity of the sources and not of providing protection for the information provided by those sources. Look throughout the decision in Citrin [1]– which is the keystone of this privilege as it has been adopted in our legal system – or any of the considerable foreign decisions discussed therein – and you will find no mention of any protection for the content of information provided to a journalist.’

We are therefore faced with two questions: should we recognize a privilege for journalists’ information; and if the answer to that question is affirmative, what is the scope of the privilege that we should recognize? We will first present the reasons for recognizing a privilege for information, followed by the difficulties involved in such recognition. We will then propose, against this background, the desirable scope of the journalist’s privilege.

The reasons for recognizing a privilege for information

Background

72. The factors that support a privilege for information must first be examined in light of the contribution that the press makes to a democratic system. The constitutional starting point for this review is the right to freedom of expression. It is well known that this right enjoys a sublime supra-statutorystatus, and has been in this position for many years – dating back to at least this Court’s groundbreaking decision in HCJ 73/53 Kol Ha’am v. Minister of the Interior [5] (per (then) Justice Agranat) – “The principle of freedom of expression is closely bound up with the democratic process.” Today, we would certainly refer to it as a constitutional right; see also, HCJ 243/62 Israel Film Studios Ltd. v. Levy [6], at p. 2415. In his opinion in that case, (then) Justice Landau wrote as follows: “In order for the citizen to enjoy his freedom to exchange opinions, he needs the freedom to exchange information . . . only in this way can he create for himself an opinion which is as independent as possible regarding those questions that are of the greatest importance for the world, the society and the state”; HCJ 14/86 Leor v. Film and Play Review Council [7] , per (then) Justice Barak;HCJ 680/88 Schnitzer v. Military Censor [8]; and see also, regarding the complexity of the issue, LCrimA 7383/08 Ungerfeld v. State of Israel [9], my opinion. These principles have already become entrenched and they hold an honored position – there is, therefore, no need to say much more regarding this point.

73. Freedom of the press is derived from the right to freedom of expression (CA 723/74 Ha’aretz Newspaper Publisher Ltd. v. Israel Electric Corp.[10],per (then) Justice Shamgar, at p. 298). A proper democratic regime requires the existence of frameworks that can present to the public those matters that require discussion (Kol Ha’am [5], at p. 877). The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society (HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture [11], per (then) Justice S. Levin, at p. 238. A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right (Ha’aretz v. Israel Electric Corp. [10], at p. 296). Freedom of the press also applies to aggressive journalism, but this does not mean that the freedom is unlimited; the restrictions are listed in Citrin [1]. The principle at the basis of freedom of the press is journalistic responsibility. A person’s reputation is not to be left unprotected, and it is guarded by, inter alia, the protections established in the Prohibition of Defamation Law, 5725-1965; see also the Protection of Privacy Law, 5741-1981; regarding the approach to this matter taken by Jewish law, see M. Vigoda “Individual Privacy and Freedom of Expression” Portion of the Week: Bamidbar 208 (A. Hachohen & M. Vigoda, eds., 5772).

74. The realization of freedom of the press is conditioned on the free and continuous flow of information to the public. The relationship between a journalist and his sources is the “nerve center” of this process; the need for an effective information-gathering system justifies the protection of the sources that provide information, subject to the restrictions established in Citrin [1]. The absence of proper protection creates a risk that the sources of such information will dry up. The scope of the journalist’s privilege can of course impact on a journalist’s ability to do his job. The privilege gives the journalist the freedom to obtain sources and to verify them, to be present at events and to investigate them, and to work toward finding the information. The reason underlying this protection is not the newspaper’s or the journalist’s own particular interest – it is the interest of the public in such protection (ibid. [1], at para. 14?, at pp. 358-359). The protection of the sources of information is thus closely intertwined with the freedom of the press.

The reasons supporting the protection of the information

75. The privilege established in Citrin [1] was interpreted as applying whenever a journalist is asked to give a direct answer regarding the identity of his sources, but it does not release the journalist from his obligations to respond to other questions, through which the privilege can be circumvented. Thus, when information that was developed in the context of the relationship between the source and the journalist is not protected, the obligation to deliver such material to the police, in the framework of an investigation, can – in certain situations – lead to the disclosure of the source’s identity. The protection provided by the privilege with respect to the identification of sources can be reduced, for example, through the seizure of items or documents that have the potential to lead to the disclosure of a source’s identity – items such as a telephone book, appointments diary, or personal computer. The same holds true with respect to a printout of a journalist’s telephone calls (see MP (Jerusalem) 2014/03 Kra v. State of Israel [35] , per President A. Cohen, at para. 9; and see M. Negbi, The Journalist’s Freedom and Freedom of the Press in Israel (2011) (Hebrew), at pp. 150-151). The argument is thus made that in order to protect a journalist’s sources, it is necessary to have the privilege apply to information that leads to the identification of those sources. As an ethical matter, I will not discuss the case of Kra [35] itself because I was the Attorney General who decided to investigate that leak of information regarding the questioning of Prime Minister Sharon, even though no particular person was suspected at the time of being responsible for the leak; the investigation was ordered because of a suspicion that sensitive details of the judicial inquiry had been leaked by a source within the investigative authorities or within the prosecution. Regarding the investigation of leaks, see also HCJ 1736/10 Lieberman v. Director of the Internal Police Investigations Department [12] my opinion, at para. 25, and per Justice Hayut); see also HCJ 2759/12 Weiner v. State Comptroller [13], my opinion, at para. 3.

76. There may be reasons for the privilege beyond protection of the sources of information. An example would be a demand addressed to a journalist that he hand over material that he surveyed at an event at which he was present (see, for example, HCJ 172/88 Time, Inc. v. Minister of Defense [14], at p. 141); there, this Court held (per Justice Barak), that “freedom of expression and freedom of the press do not protect journalists’ information against its use as investigative material by the competent investigative authorities, when there is a reasonable basis for the assumption that the journalists’ information contains information that could provide significant assistance in disclosing disturbing facts”). Of course, cases like this have various possible implications. First, the absence of protection for such information can limit the willingness of the sources of information to invite journalists to such events; this situation can also lead those participating in such events to use various means to prevent journalists from being present at these events and reporting on them. Thus, in the absence of a privilege, a journalist may refrain from participating in such events – either because he may be asked (as part of a police investigation) to hand over the content of his journalistic output or deliver a photograph that he took – or because he could be required to testify in court (see Maoz Committee Report, solo opinion of Mr. Moshe Ronen, at pp. 46-50).

77. Another possible situation in which a privilege for sources is insufficient is when the matter being investigated is the exposure of corruption. Occasionally, the “minor partner” in a corruption scheme will be willing to provide details regarding the corruption, on condition that his identity is not disclosed, since the disclosure of his participation can very well incriminate him. The journalist, for his part, wants information on the “senior partner” in the corruption scheme. Nevertheless, the journalist must still examine the part played by the source (the minor partner) in order to understand the overall picture and to assess the reliability of that source – even though this is not the main point of the information that the source has provided. In order to obtain the information, the journalist must give assurances that these minor details which could incriminate the source will not be provided to the authorities (see also, Maoz Committee Report, sole opinion of Mr. Moshe Ronen, at pp. 46-50). The question is – what approach should be taken in such a situation?

The difficulties presented when a privilege for information is recognized

78. Of course, the recognition of a full privilege for information involves substantial disadvantages as well. First, the rules of evidence are directed at serving the purpose of uncovering the truth, and the recognition of a privilege is an exception to that rule (LCA 6546/94 Bank Igud Le’Israel Ltd. v. Azulai [15], at p. 61; LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency [16], at p., 664; LCA 2235/04 Israel Discount Bank Ltd. v. Shiri [17] per Justice Procaccia, at para. 10; CrimApp 4857/05 Fahima v. State of Israel [18] per Justice Procaccia, at para. 5). The principle of uncovering the truth presumes that justice will best be accomplished through a comprehensive presentation of the evidence. Only in special and exceptional circumstances should recognition of a privilege be considered, in principle, when the privilege promotes values that are of greater weight than the harm done to the principle of disclosure. (See LCA 1412/94 Hadassah Medical Federation Ein Kerem v. Gilad [19] , 522 and the references cited there; Shoshanna Netanyahu “Developments Regarding the Issue of Professional Privileges”, Zusman Volume 297, 298 (1984); see Emily Ann Berman, “In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals”, 80 N.Y.U.L. Rev. 241, 255-256: “Most evidentiary rules are created to improve the accuracy of fact-finding. The common understanding is that justice is best served when all relevant evidence is placed before the fact-finder in any particular case. Privileges, on the other hand, have the opposite effect. They reduce the amount of relevant evidence that may be placed before the fact-finder in light of policy considerations that outweigh the interest in optimal fact-finding. Because evidentiary privileges have the effect of potentially leading to less-than-perfect results, they generally are disfavored and construed narrowly. The utilitarian theory of privilege posits that privileges should be recognized in circumstances where such recognition will advance policies that outweigh the resulting risk of injustice.”) The protection of a journalist’s sources and informations restricts the ability to carry out a thorough investigation, and the recognition of such protection is an exception to the rule that a witness is generally obligated to testify. The journalist’s privilege can therefore constitute an impairment of the processes of law and order and of judicial proceedings, in which the public has a strong interest. President Shamgar noted this point in Citrin [1], when he wrote that “the right to have a person’s testimony be heard, as stated, does not belong only to the litigant – but to the entire public; the propriety of the actions carried out by the entire social system is dependent on, inter alia, the existence of legal proceedings that carry out and achieve their purposes. And if testifying is an essential part of the proceedings without which the proceedings cannot be established or conducted properly, then such testimony should be seen as something in which the public has an interest, that goes beyond the narrow interest of the litigants” (Citrin [1], at p. 358).

79. Second, a privilege that protects information can open the door to improper abuse of the use of information by the source or by the journalist, and the selective and tendentious flow of that information. Thus, for example, a source could invite a journalist to an event such as a demonstration, and demand a tendentious form of disclosure for pictures that were taken at the demonstration – such that reality is distorted and the reliability of the information as well as its objectivity is affected. Third, at a fundamental level, as distinguished from the relationships underlying the attorney-client privilege (s. 48 of the Evidence Ordinance), the doctor-patient privilege (s. 49), or the psychologist-patient privilege (s. 50), the main purpose of the relationship between the journalist and his sources – a relationship for which the privilege is sought – is the publication of information, and not its concealment. Fourth, as distinguished from the examples of above-mentioned professionals, the Journalism Ordinance does not define who is a journalist and what the conditions are for entry into the profession. The absence of obstacles to entry and the absence of express statutory supervision (as distinguished from the profession’s own Rules of Ethics) create a difficulty with respect to recognition of a privilege. Fifth, a privilege will be recognized, as stated, when the public interest in concealing the information is greater than the interest in its disclosure. Because the basis of the journalist’s privilege is the encouragement of freedom of expression, the exchange of views and the exposure of the truth – the greater the scope of the privilege, the greater the harm to its main objective. The core of the journalist’s privilege is the need to prevent the sources from being concerned about providing information to journalists. When the demand is for the disclosure of information that does not lead to the desired identification of the source, the public interest in its protection is lessened. The question of the identity and scope of the public interest is not easily answered, of course, but we must remember – this is a matter of balancing, and the same public that rightfully desires that the authorities take care not to sweep under the rug those matters that should be publicly known (it would appear that currently, the chance of such matters being concealed is less than it was in the past, because of increased transparency and virtual media) – is the same public that desires that criminals be prosecuted. In theory, these two interests do not contradict each other, but as a practical matter, it is possible that they will, and the function of the court begins at that point.

The proper scope of the privilege

80. Until now, we have discussed the important reasons protecting journalists’ information, on the one hand, and – on the other hand – for requiring its disclosure for the purpose of achieving justice when conducting investigative and legal proceedings. As stated, because the journalist’s privilege, like all privileges, is an exception to the rule concerning the need to pursue and disclose the truth, its scope will change when the area in which it is being applied justifies the withdrawal of the principle supporting disclosure. We do not examine the importance of the relationship between a journalist and his sources with respect to its absolute value, but rather as a value to be balanced against the public’s interest in the disclosure of the material. In order for a determination to be made that a certain evidentiary component, which is a product of this relationship, is worthy of protection, it is necessary that its unique value – as a product of the weighing of various public interests – supersedes the need for its disclosure.

If, as the courts have sometimes understood the Citrin rule to mean, the journalist’s privilege is limited to situations in which a journalist is asked a direct question about his source, the effect may be that the original purpose for the establishment of the privilege will be frustrated. It appears that the privilege should apply when the disclosure of the information can lead to the disclosure of a source’s identity. It is hard to find a real reason for making a distinction between information that was received directly from a source and pictures that were photographed as a consequence of the photographer having been invited by the source – photographs which can potentially identify the source. The journalist’s privilege should apply to both kinds of information. From a common sense perspective as well, the basis for the protection in which the public has an interest is the relationship between the source and the journalist; its basis is not a closed list of situations, such as those in which direct questions are asked of a journalist during an investigation; this principle would still be subject to the Citrin rules relating to the removal of the privilege.

81. This is the situation with respect to information that may lead to the identification of the source. Nevertheless, I do not believe that the journalist’s privilege should be expanded to reach all information held by a journalist, as was suggested in the Maoz Committee’s proposal. Prior to the decision in Citrin [1] and afterward, a number of attempts were made to regulate the journalist’s privilege – none of which were enacted as law. Additional issues concerning the privilege – other than its scope – are also the subject of dispute, such as the question of whether it should be a qualified or an absolute privilege, and the definitional matter of which individuals will be considered to be journalists (Maoz Committee Report, at p. 24). The question of the scope of the privilege is one with potentially far-reaching consequences, and its expansion through judicial legislation beyond what is required under the circumstances of a particular case is not a desired result (compare Aharon Barak “Judicial Legislation”, 13 Mishpatim 25 (1983) at p. 47; State of Israel v. Shemesh [4], per Justice Danziger, at para. 3, and the references cited there). In light of the consequences of the journalist’s privilege, its scope and its other significant aspects, should be developed one step at a time, in accordance with the concrete needs presented by the ruling (see ibid. [4], per President Beinisch, at para. 9); CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [20] , at p. 540; CA 2967/95 Magen veKeshet Ltd. v. Tempo Beer Industries Ltd. [21] , at p. 322). I believe that for our purposes, the application of the journalist’s privilege to information that is likely to lead to the identification of a source is the proper development of the Citrin rule, but it should not be applied as an expansion that reaches all information, as appears to be suggested by the judgments in Hachsharat Hayishuv [31] and Channel 10 News [33]. The late Professor Ze’ev Segal wrote of the need for legislation “that expressly recognizes a broad or almost absolute journalist’s privilege, that protects the identification of a journalist’s sources and the disclosure of details that contain such information” (in The Public’s Right to Know: Freedom of Information (2000), at p. 196). In my view, his remarks go further than is necessary, and what should be privileged, as stated, are the details that include the information that is likely to expose the source. After I wrote this remark, I was made aware of the comprehensive doctoral dissertation written by Yisgav Nakdimon, Blocking Expression in Order to Enable Expression – A Proposal for the Design of the Outline of the Scope and Degree of the Understanding of a Journalist’s Privilege in the Constitutional Age (2012) (Hebrew), and see pp. 152-158, regarding his support for the protection of a source’s identity, whether or not the source has asked for an assurance that his identity will not be disclosed, unless it was clarified that the source’s identity as the source might be disclosed (see also his introduction at p. 1X). The author does propose a privilege for information itself, under certain conditions (at pp. 160-165).

Consequences of a privilege for information

82. The above completes the discussion of the scope of the privilege. But we cannot ignore the issue of its consequences. A privilege for information that leads to the identification of the source is the equivalent, for better and for worse, of a privilege for information, including all the advantages and disadvantages of such a privilege. I will briefly discuss the primary consequences of such a privilege.

Burden of proof

As was explained above, there is a concern that a privilege for information will be exploited in a cynical manner. However, in any event, an assertion of a privilege requires proof, the burden of which is imposed on the party asserting the privilege (Sharon v. State of Israel [3], at p. 524; CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corp. [22], at p. 797; HCJ 337/66 Estate of Kalman Fital v. Holon Municipality Assessment Commission [23], at p., 71; see also Kedmi, On Evidence, Part 3, at p. 1014). When there is a dispute regarding whether a document is subject to the privilege, it is clear, as noted above, that the court must review the material for the purpose of deciding whether the assertion of the privilege is warranted (LCA 2498/07 Mekorot Water Company Ltd. v. Bar [24], at para. 10). When the assertion of a privilege relates to information which could lead to the identification of a source, the party asserting the privilege bears the burden of persuasion. In this way, the concern regarding an ungrounded assertion of privilege can be mitigated.

Search warrant

83. As stated, it appears that a source can be identified even without asking the journalist any direct questions regarding the source’s identity. For example, using a warrant for the search of the home of a journalist, it would be possible to seize his date-book or address book, and thus discover the identity of the source. How should we treat an assertion of privilege by a journalist in the course of such a search? If the seizure of the information regarding which the privilege is asserted is allowed without any judicial review, the privilege may be emptied of all content. This is distinguishable from a situation involving an order pursuant to s. 43 of the Criminal Procedure Ordinance – when the police conduct a search, the privilege is asserted only after the warrant is issued, and because of the nature of the proceedings, the asserted privilege is not discussed prior to the issuance of the warrant. In this situation, the privilege claim must be examined before any use is made of the information (compare Y. Kedmi, On Evidence, at p. 1010). Similarly, s. 51b(a) of the Maoz Committee’s proposed legislation, provided that “if a person refuses [ . . .] to hand over information to the party that is authorized to investigate in accordance with the provisions of any relevant law – the court may issue an order to hand over documents [ . . . ]. And in sub-section (b): “No search of a person’s home or place of work may be searched [ . . . ] for the purpose of disclosing information except with a court order, and unless the conditions stated in s. 51a(b) are satisfied.”

The criminal proceeding stage

84. The Citrin [1] decision dealt with a privilege asserted in order to prevent journalists from being forced to testify during a legal proceeding before the Israel Bar Association’s disciplinary court. However, this does not limit the application of a privilege only to situations in which it is asserted in proceedings before a court (or tribunal). A privilege is a concrete exemption – with respect to this matter – from the duty to deliver information, either in the framework of an investigation conducted by a competent authority, or in proceedings before a court, tribunal, or any entity or agency that is authorized to hear testimony (see supra, Kedmi, at p. 1007). Section 52 of the Evidence Ordinance provides that the provisions of Chapter C of the Ordinance (which deals with privileged testimony) will apply both to testimony in a court or tribunal and to testimony before an agency, entity or person who is authorized to gather testimony. This provision also applies with respect to the journalist’s privilege concerning the disclosure of sources (see Kedmi, at p. 1015; compare to Sharon v. State of Israel [3], at p. 14). The privilege therefore also applies to the police investigation stage, and is not limited to the trial stage, and it is of course subject to the relevant restrictions.

The nature of the blocked information.

85. Because we have determined that journalists’ information should be somewhat privileged in order to prevent the exposure of the sources, we must also determine the nature of this information that is entitled to the protection. Not all information that leads to the exposure of a source is necessarily entitled to protection. For example, there may be a situation in which a journalist is invited by a particular source to a particular event, but the occurrence of the event is known to all, and many other journalists also arrive at the event. The journalist will take various photographs of the event, including pictures of the source. Can the one journalist – the one who was apparently invited by the source – enjoy protection that is not made available to any other journalist? It would seem that this is an issue of which the drafters of the various legislative proposals from 2006 through 2011 were aware, and their proposals therefore stipulated that the protection would apply only to information provided by the source, and which “by its nature was provided in the belief that confidentiality would be maintained.” This language indicates a need for an objective review of the nature of the information. As noted, the proposal offered by the majority of the Maoz Committee was that information (“items and documents”) will enjoy protection if given to a journalist “on the condition that they would not be disclosed”. This language also suggests that the nature of the information should also be examined objectively; it reflects the Committee’s intention to provide very comprehensive protection for the relationship between the journalist and his sources. Such protection, as has been discussed above, is broader than the scope of the proposed journalist’s privilege – which is for information that leads to the identification of the source. Of course, the source’s demand for protection means that it is the source who has the right to assert the privilege; when the source has no interest in the protection, there is no reason for the protection to apply. It would appear that a determination of the nature of the protected information in accordance with an objective foundation will reduce the concern regarding the selective disclosure of the information. Furthermore, the undesirable situation in which the source controls the privilege may do a disservice to the rationale for the existence of that privilege. The privilege protects the source, because of the public interest in that protection. I therefore believe that an assertion of the privilege should be conditioned on the information regarding which the privilege is claimed being of the kind which, by its nature, was provided under the belief that it would be kept secret. For a broader view of the matter, see Nakdimon, Blocking Expression, at pp. 156-157.

Discussion of the district court’s holdings in this matter

86. If my view – that protection should be extended to information that leads to the identification of the source, which, by its nature was provided in the belief that it will be kept secret – is accepted, an acceptance that would place Israel at least in a “good place, in the center,” in comparison with other countries – the district court’s holding, according to which a contractual relationship between a journalist and a source is itself justification for the application of the privilege (a view which is supported by the Press Council’s position), cannot stand in full. This argument regarding the scope of the privilege is based on the assumption that the existence of a promise establishes a journalist’s privilege; and this would mean, inter alia, that the privilege can also apply to information that does not lead to the identification of the source. This should not be allowed, except in situations in which the court is persuaded that a promise was given as a precautionary measure vis-à-vis the source, to ensure that he will not be exposed, but in such a situation the privilege will apply in any event. As a rule, the privilege is recognized on the assumption that the harm done to the objective of uncovering the truth is allowed for the sake of a clear interest – an interest which should be preferred to that objective. When the privilege protects the source from identification, such an interest does support the privilege, and we can clearly point to the party enjoying the protection; but when the privilege protects a relationship that is contractual in nature only because it is a contractual relationship, the ground for allowing the privilege is diminished. First, it is diminished because it is not clear to all what is the subject of the protection – this will only be clear to those who are parties to the agreement. Second, if the only reason for the protection is a promise, the result will be that the parties’ wishes are preferred over the public interest in discovering the truth. The desirability of such a preference is not obvious; it is, in my view, a position that is different than the position that I took in State of Israel v. Shemesh [4] (at para. 14), where I wrote that a promise made by a governmental entity must be honored; but this is not the situation in our case. Moreover, the emphasis given to the contractual issue can open the door to manipulation (even after the fact), which is not a desirable situation. Thus, the issue of whether or not a promise has been made will be considered as one of the relevant factors, but it will not have determinative weight.

87. Another issue is the district court’s holding that the journalist is subject to an obligation, by virtue of the journalists’ Rules of Ethics, including Rule 22, which states that the privilege also applies to information provided to a journalist “on condition that it remains confidential”. With regard to this point, I find that the Rules of Ethics constitute criteria that can be considered in order to examine the reasonableness of a journalists’ behavior, but they themselves do not bind the court (CA 5653/98 Peles v. Halutz [25],, at pp. 896-897 and the references cited there). Furthermore, the Rules of Ethics need to be viewed in their entirety, and the question that needs to be asked is whether they are being observed in their entirety – including all that is imposed on the journalist, with respect to the matter of responsibility.

88. Regarding the distinction that the district court made between a public event and one that is not public – I do not believe that this binary rule is essential for the purpose of determining the application of the privilege. I believe that it can be useful for the court when it examines the relationship between the journalist and the source. The more public the event, the less the reason for the privilege to apply. This is expressed in the examination of the nature of the information in this type of case – which is in any event open to the public, and as a rule, it will not have been provided in the belief that it would be kept confidential.

89. Regarding the concern that journalists will not be invited to certain events and that they will thus be harmed – I have not found that this is a concern that can justify a change in the scope of the privilege. It appears that this is a general and theoretical concern, and it has not been proven that the problem will, in reality, actually arise.

90. Finally, the above discussion should be understood as establishing a set of flexible tools, to be used while examining each event in light of its own circumstances and with common sense, as a constant source of good counsel.

Conclusion

91. The conclusions described above concerning the scope of the privilege relate, on the one hand, to the rationales for its existence, and, on the other hand, to the circumstances of each particular case. The question of the proper scope of a privilege for information arises in our case in the narrow context of information that leads to the identification of the source, and in that context, the conclusions reached are those which lean in favor of applying the privilege to any information that is likely to expose the identity of sources. Some of the parties’ arguments (and those of the Press Council as an amicus curiae) went beyond the issue presented in the current case and argued either for or against the holdings of various judicial decisions rendered in district courts – such as the decision in Hachsarat Hayishuv [31]; some of the conclusions reached by the district court in this case did so as well. The current proceeding is not an appeal of the decisions rendered in Hachsharat Hayishuv [31], Channel 10 News [33], or Glatt-Berkowitz [34]. However, I do believe that questions regarding the scope of the journalist’s privilege require an orderly, comprehensive and careful examination by the legislature. It is fitting that the process that began with the Maoz Committee and continued with the various legislative proposals that were made should eventually develop into concrete legislation, in which the legislature can state its position regarding all the consequences of this type of privilege. It goes without saying that our discussion does not relate to additional issues, which were deliberated by, inter alia, the Maoz Committee and which have not yet been resolved – such as the definition of the term “journalist” and the question of whether such a definition is needed; the relationship between the privilege and s. 117 of the Penal Code, 5737-1977 relating to the disclosure of information by a public servant – which is not a simple issue; the difficulty presented by the difference between the scope of the journalist’s privilege as defined by case law and the scope of that privilege in the Journalists’ Rules of Ethics, and various other issues. In the absence of an orderly legislative process, it may be that the courts will have no choice but to deal with issues that may arise in the future regarding the scope of the privilege – but which did not arise in full form in the instant case.

Removal of the privilege under the circumstances

92. Regarding the application of the privilege under the circumstances of the instant case: after the district court viewed the pictures and heard the parties’ arguments, it found that their delivery to the police could lead to the identification of the source. The court noted that “after the hearing on 22 December 2011, I decided to review the material in the sealed envelope. I did this because I believe that when a journalist’s privilege is asserted in court in the context of a petition pursuant to s. 43 of the Criminal Procedure Ordinance, it is the role of the court to conduct an examination for the purpose of determining whether the material is indeed such as can lead to the exposure of the sources of information. This is also the case, a fortiori, when there is a factual dispute regarding the content of the material regarding which the privilege is being asserted” (para. 7 of the decision dated 3 January 2012; emphases added – E.R.). Later on in the decision, it is noted that “the disc contains, inter alia, photographs which do not appear to be relevant to the subject of P/1, comprising a different series of photographs (photographs nos. 001-041 on the disc), which appear to document an event that may have involved a serious crime, and it appears that this event did not take place close to the army base, near it or in the presence of military personnel. It was also noted that a number of individuals appear at that event, some of whom can be identified” (para. 8; emphases added). The court did not find that the source appears in the photographs, but it did assume that the delivery of the photographs could lead to the identification of the source: “The question is, whether the short period of time that has passed between the events in which the offenses were committed and the time at which the request for the seizure of the photographs was submitted – before an exhaustive investigation, the purpose of which would have been to identify the participants at the event, could have been carried out – justified the appeal for the order to seize of the photographs, so that they could be used for the purpose of identification of the participants, on the assumption that their identities appear in the photographs” (at para. 11; emphases added). Further – “beyond this, I do not accept the determination that the creation or the obtaining of the information with which we are dealing did not require any cooperation whatsoever with the source. The photographer repeated that her sources invited her to the events that she photographed and that the pictures can identify the sources. Furthermore, I believe that the ‘chilling effect’ relating to the harm done to the trust between the journalist and his sources will also apply in situations in which a journalist is invited to document events that occur in a public area, if the journalist would not have arrived at the event but for the invitation” (para. 16). This presumption reappears throughout the decision: “Indeed, as I noted, some of the pictures appear to document a different event that was commemorated by the photographer, which could, in part, be interpreted as being an event of a criminal nature. It may be that the investigative authorities, with the tools that are available to them, could have reached some of those who participated in the event by making use of the photographs” (para. 24). In light of this assumption, the court concluded that the attorney’s privilege did apply to this case (para. 20), and it therefore turned to the tests required by the Citrin rule in order to determine whether the privilege should be removed. The court also found that petitioner 2 was the only party to have documented the events, and thus that the information had been given to her in the belief that it would be kept confidential.

93. I believe that under these circumstances there is a journalist’s privilege that applies to the photographs, to the extent that their disclosure could lead to the exposure of the source’s identity. I am aware of the difficulty arising from the court’s assumption that the photographs could lead to the identification of the source, without establishing it as a factual finding. This is a difficulty that is inherent in the framework of a recognition of a privilege for information (even if it covers “only” information that leads to the identification of the source), in the context of which the party benefiting from the privilege – meaning the journalist – can make a false claim regarding the danger that the source will be identified, even in situations in which there is no such danger. This difficulty does not arise when a “narrow” privilege has been applied (such as the privilege that is understood to have been established in Citrin [1]) – a privilege that applies when the beneficiary is asked to disclose the identity of the source. While it is clear that in such a situation the disclosure of the source’s identifying details will necessarily lead to his identification, this is not clear in the situation presented in the instant case, and this is what creates the possibility that false claims will be raised. The district court was also aware of the difficulty, noting that “we cannot ignore the concern that a journalist who has photographed an event that took place in a public space, and which could have significance as establishing the occurrence of a criminal act – will falsely argue that he was invited to the event by a source who conditioned the invitation on the journalist’s promise to maintain confidentiality. It is therefore proper that in such cases, during its hearing about the request, the court should question the journalist who objects to being ordered to disclose information, and receive an impression of whether he is telling the truth.” I accept these remarks in full, and I will therefore now move on to the issue of whether the privilege should be removed in this case.

94. The state argues that the district court erred when it distinguished between the two series of photographs and held that only some of them conform to what was requested in the order. According to the state, the court should not have limited the scope of the order to the “narrow form” of matters relating to the Deputy Regional Commander’s statement, since the investigation related to all the events that occurred within the brigade’s sector on the dates specified in the request. Alternatively, the state argues that the court should have accepted the supplementary pleading, in which the scope of the investigation was clarified.

95. As may be recalled, the state, in its request for the order, asked for the raw material, including the videos and still photographs “which document the events from 12 December 2011 to 13 December 2011, close to the Ephraim District Brigade Headquarters base”. Based on the relevancy test, which is carried out in the context of the three-part Citrin rule, the court, as stated, distinguished between the two series of photographs: those that conform to what was stated in the Deputy Regional Commander’s statement (P/1), and those that do not. Note that the photographs in the second series document an event with a seemingly criminal character, but the event does not appear to have occurred adjacent to the army base. The nature of this other event is not clarified; however it was held that these pictures were less relevant for the purpose of the investigation and the privilege relating to them should not be removed. I note that I have viewed the pictures, and I believe that an exact “reading” of them, without knowing the entirety of the circumstances, would be difficult.

The tests for removing the privilege

96. The tests for removing the privilege were established by this Court in Citrin [1]. I will begin with an examination of the relevancy test. I believe that the fact that, as stated, the events are described in general language in the request does not indicate that there is no relevance to the investigation. Instead what is indicated is that the order was not sufficiently specific. There may be several reasons for this. One possible reason is that the investigative authority could not, with any measure of exactness, point to material that it had not yet seen. The Court wrote the following regarding this matter, in Sharon v. State of Israel [3]:

‘Occasionally, the prosecution has only general knowledge about which documents it requires for the purpose of the investigation, and cannot identify or describe each of them in advance. There may be instances in which it will be interested, for the purpose of the investigation, in a certain type of document relating to a certain matter, without knowing any additional details [ . . . ] In such circumstances, it should not be required, in a request for an order pursuant to s. 43, to indicate specific documents, as the appellant’s attorney wishes.

In summation, the degree to which the documents that are to be presented or delivered in accordance with a s. 43 order need to be identified or specified is a matter which is left to the discretion of the court that issues the order. The court must make that decision in accordance with the circumstances. Of course, the order must be clear, so that the party being required to provide the item can know what is being asked of it. Nevertheless, it is not essential that the requested documents be identified and described in detail’ (ibid. [3], at para. 14, pp. 21-22).

97. An additional reason that a request for an order may lack specificity – and it appears that this is the reason in this case – is that the investigation has not yet advanced far enough at the time the order is requested. The request for an order was submitted less than 24 hours after the events took place. In the two lower courts, the state argued that since the police knew of the existence of the pictures, they saw no reason to wait. This does not reduce the level of the relevancy of the photographs for the investigation. It should be recalled that once the order was issued, all the photographs were delivered to the court’s safe, and the respondents did not argue that there was a distinction to be made between the two series of photographs. To the extent that the court believed that the other incident does not fall within the matters described in the Deputy Brigade Commander’s statement, but does fall within the definition of the said events that occurred at the Ephraim District Brigade Headquarters, it is difficult to find, unequivocally, that the pictures do not satisfy the relevancy test. There was a single general set of events, during the course of which the pictures were taken – the pictures that were all sent together to the court without any claim being made that only some of them relate to the events in the Ephraim District Brigade Headquarters base. All that was claimed was that they were subject to the privilege. I therefore believe that the requested information was apparently relevant to the investigation, and the first test of the Citrin rule has thus been satisfied. Additionally, regarding the second test – the substantial nature of the material – there is no dispute that this is a substantial matter. Nevertheless, I do not find that the third test, which requires that the authorities show that there is no alternative way to obtain the evidence, has been met – as I have explained above. Thus, to the extent that the state is interested in the requested material, it must submit a s. 43 request to the court in which the investigative steps that have been taken to obtain the evidence are specified. The court will then act in accordance with what has been stated in this judgment.

Conclusion

98. If my view is accepted, we will hold that the journalist’s privilege preventing the exposure of a source’s identity, as established in Citrin [1], will also apply to information that is likely to identify the source, subject to the tests established in Citrin [1] for the removal of that privilege.

99. Under the circumstances of this case, the request for the removal of the privilege qualifies under the tests for relevancy and substantiality. The state can address the magistrate’s court regarding the issue of the effort being made to obtain the evidence in some other way, the third test established in Citrin [1]. I propose to my colleagues that they grant the appeal in part, in accordance with what I have stated.

Justice I. Amit

I concur with the judgment of my colleague, Justice Rubinstein, and I will add some brief remarks.

The acknowledgement of an evidentiary privilege signifies the recognition of an interest which is so valued by the legal system that the important and central value of the pursuit of the truth will be superseded by it. Thus, for example, we seek to protect the relationship of trust between a doctor and a patient, between a psychologist and a patient or between a social worker and a patient – in order to encourage the patient to utilize the services of these professions. Yet the interest in encouraging this is limited, and so the privilege that covers these relationships is a qualified one (ss. 49, 50 and 50a of the Evidence Ordinance [New Version] 5731-1971 (hereinafter, “the Evidence Ordinance”)). The trust relationships between a client and an attorney and between a penitent and a priest are given greater protection in the form of an absolute privilege, because of the strength of the interest in protecting the trust involved in these relationships (ss. 48 and 51 of the Evidence Ordinance).

Even before the decision in Citrin [1], jurists had expressed the view that the trust relationship between a journalist and his source should be recognized, and that this trust relationship should be encouraged and protected (Eliahu Harnon, “Protection of Trust Relationships: Should a Journalist’s Privilege be Recognized?”, 3 Iyunei Mishpat 542, 552 (1974); Shmuel Hershkowitz “A Journalist’s Privilege Regarding the Disclosure of the Sources of his Information”, 1 Mehkarei Mishpat 251 (1980); Yehoshua Rottenstreich, “Open Source or a Closed-Up Spring? The Issue of a Journalist’s Obligation to Disclose the Sources of His Information”, 8 Iyunei Mishpat 245 (1981)). In Citrin [1], this court gave a stamp of judicial approval to the journalist-source privilege, and as a judicially-created privilege, it is undisputed that it is a qualified privilege rather than an absolute one, as was expressly held in Citrin [1]. This means that the privilege may be withdrawn in the face of an important public interest such as an investigation directed at discovering the identities of those who have committed a serious crime (compare Time, Inc. v. Minister of Defense [14]).

2. The decision in Citrin [1] applied the privilege with respect to the identity of the source. I agree with my colleague Justice Rubenstein that the time has come to expand the rule of that case, so that the privilege will also apply to the content of a journalist’s information, if the disclosure of the content is likely to lead to the identification of the source. The question presented to us by the parties is whether we should go one step further and expand the privilege so that it also covers the content of journalists’ information, regardless of whether or not it will lead to the identification of the source.

As we deliberate this question, we must keep in mind a number of rules that have developed in the case law regarding the privileges. These can be summarized in a few sentences, as follows:

(-) A privilege is an exception to the rule, and the rule is disclosure.

(-) Privileges are to be approached cautiously.

(-) The scope of a privilege should be construed narrowly.

(-) The burden of proof regarding the existence of a privilege is borne by the party asserting the privilege.

(For a discussion of these rules, see, for example, HCJ 844/06 University of Haifa v. Oz [26] ; LCA 8943/06 Yochanan v. Cellcom Israel Ltd. [27] , at paras. 18-19).

Against the background of these rules of thumb, we find that the case law has refused to create privileges that are based on a contractual undertaking given to a source of information regarding confidentiality, even though this may cause harm to the informant and despite the concern of a, possible “chilling effect”. (See, for example, the Oz decision – in that case, a voluntary investigative commission created by the university had given an undertaking of confidentiality.) This rule intensifies the question of whether a journalist is more important than other bodies, such that a private-contractual undertaking given by a journalist to an informant – either expressly or implicitly – will have the power to create a privilege that extends to the content of the information as well.

3. It appears that a privilege for information – as distinct from a privilege for sources of information – was not the focus of the Maoz Committee’s deliberations. The majority opinion, which proposed that the privilege should apply to information given to a journalist in the belief that it would not be disclosed, put the primary emphasis on the concern that the disclosure of the information would lead to the identification of the sources of the information (see pp. 15 and 24 of the report). The concern regarding the exposure of the information itself that was given to the journalist on a not-for-publication basis is mentioned by the majority opinion only once (at p. 26). Nevertheless, I note that Committee member Moshe Ronen placed the issue of a privilege for information itself at the center of his opinion (ibid., at p. 46).

My colleague Justice Rubinstein surveyed the law of other countries and demonstrated that despite the fact that the press is perceived to be one of the most important tools for expression and for the exercise of the freedom of expression, many established democracies have chosen not to expand the application of the privilege to journalists’ information, when such information is not likely to lead to the exposure of the source.

It may be argued that the delivery of information to a journalist while asking that it not be publicized does not serve the public’s interest in the publication of information concerning a matter of public interest. Usually, information is given to journalist for the purpose of it being published, and the use of the journalist’s privilege as a tool for blocking information or for the purpose of creating a selective flow of information would appear to be in conflict with the objective of the journalist’s privilege. On the other hand, some types of information are given to a journalist on a not-for-publication basis, but are nevertheless essential to the journalist’s work – and if the journalist loses the ability to obtain information which is “not for quotation or for attribution”, the basis of his ability to gather information in general is also lost. From this perspective, despite the fact that the protected information itself is not published, it contributes to the publication of other information, and it thus furthers the purpose of freedom of expression and of the press, and the right of the public to know (see Nakdimon, Blocking Expression, at pp. 156-157).

Like my colleague Justice Rubinstein, I also believe that we do not need to make a final determination in this case with respect to the question of the scope of the journalist’s privilege, and we will leave that task for others, who will make that determination on the basis of concrete issues that may arise in the future (paras. 81 and 91 of my colleague’s opinion). I doubt that we need to recognize, in advance, a privilege for information given to a journalist in light of a trust relationship. In any event, the law recognizes the need to protect substantial interests, even if these do not benefit from the label of a “privilege”. A clear example of this is the right to privacy, which is not protected as a privilege, but which is anyway recognized as a powerful interest. It is common practice for a court to balance the right to privacy against the interest in uncovering the truth, in both civil and criminal proceedings (such as the issue of exposing the personal diary of a complainant in a sex crime case). The court balances these interests on an ad-hoc basis, in accordance with the circumstances of the case before it, and this is what should be done with respect to the privilege for journalists’ information as well.

Having mentioned the interest in privacy, I will further clarify that it may be that the journalist's information privilege is not asserted for the sake of the privilege of the information itself, but because the journalist is concerned that the source’s privacy will be harmed, and in such a case, the court will examine the question while balancing the interests as discussed above.

4. Before I conclude, I note that we find that various considerations are presented in connection with the question of a privilege for journalists’ information obtained and received during the course of a mass public event – and these considerations pull in opposite directions.

A person who participates in a mass event such as a disturbance, a mob, a demonstration or a confrontation between police and soldiers and citizens, etc., has no reasonable expectation that information about an event that took place in the public arena will be privileged, nor is there any trust relationship with a journalist who arrives at the event to cover it. Moreover, it would appear that a party who invites a journalist to be present at a multi-participant event does so in order to have the journalist report on and publicize the event, and it can be argued that this could be understood to constitute a waiver of a privilege for information (compare CrimA 8947/07 Honchian v. State of Israel [28] , where my colleague, Justice Rubinstein, concluded that a party who has consented to a psychiatric examination has waived the psychiatrist-patient privilege). And with regard to waivers – the partial disclosure of information with the source’s consent would appear to constitute a waiver of the right to assert a privilege regarding the entirety of the information. Thus, the risk that the recognition of a privilege will lead to a selective and tendentious flow of information – often accomplished through falsification or manipulation of the information – has been reduced. Indeed, even with regard to an absolute privilege such as the attorney-client privilege, it is possible to conclude that the client has waived the privilege. Thus, for example, when a client meets his attorney in the presence of a third party, who is not obligated to maintain confidentiality, the assumption is that the attorney-client privilege does not apply to the matters discussed (E. Harnon, Law of Evidence, Part II, (1977), at pp. 101-102; CA 44/61 Rubinstein v. Nazareth Textile Industries Ltd. [29] [29] , at p. 1602). In addition, in certain cases, when a client discloses some of what has been stated in the framework of the attorney-client relationship, he will not be allowed to assert an attorney-client privilege. Thus, the client has the choice whether to maintain the privilege or waive it, but he may not waive the privilege only partially. (For example, if a client submits a complaint or a claim against his attorney, this will be viewed as the client’s waiver of the privilege – Limor Zer Gutman, “Ensuring Free Communication Between an Attorney and a Client Through the Attorney-Client Privilege and the Ethical Duty to Maintain Confidentiality – A Call for Reform”, Hapraklit – the David Weiner Volume 79 (2009), at p. 111; BAA 5160/04 Ashed v. Jerusalem Regional Committee of the Israel Bar Association [30], at pp.234-237.) The claim that there has been a waiver of the privilege in light of the public disclosure of the information, or in light of a partial disclosure of the information, done with the source’s consent – can be made even more strongly with respect to the journalist’s privilege, which is a qualified privilege.

In contrast, there are those who argue that the delivery to law enforcement authorities of documentation of an event that took place in the public arena can transform the journalist who has documented the event into a “sub-contractor” who gathers material for the authorities, which can lead to a number of negative consequences: the journalist’s credibility may be adversely affected and the boundaries between the authorities and the media will be blurred; access for journalists to various events will be blocked; and journalists may be subjected to violence and physical harm as well as their professional equipment, such as cameras, recording equipment, etc. (Nakdimon, Blocking Expression, at p. 164).

The Maoz Committee wavered between various considerations and noted, on the one hand, that a privilege should not be recognized for the coverage of a mass event. On the other hand, a journalist should not generally be required to provide information to law enforcement authorities.

‘We should not confer a privilege for the activity of a journalist who is covering an open media event, such as a demonstration, disturbance, etc. Regarding these, the journalist is to be treated, in principle, like any other person. Nevertheless, because of the sensitivity of the issue, the intensive involvement of journalists in the coverage of such events, and the need to ensure that they are not transformed, against their will, into police informants [ . . . ] The Committee believes a demand addressed to a journalist that he expose material that he collected while doing his job as a journalist will only be justified in unique circumstances.’

It appears that a distinction should be made between a journalist who was invited to the scene of an event by one of his sources and a journalist who arrived at an event without relying on one of his sources. A helpful test would be to distinguish between a situation in which only a single journalist is present, and one in which a number of members of the press are in attendance. At the same time, we do not, at this stage, need to make a final determination regarding this matter, and these questions and distinctions can be left for further review.

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.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/12/610/007/t05/12007610.t05.pdf

Bremer v. Tel Aviv-Jaffa Municipality

Case/docket number:

AAA 2469/12

Date Decided:

Tuesday, June 25, 2013

Decision Type:

Appellate

Topics:

Abstract:

An appeal against the judgment of the Tel Aviv Administrative Court, in which the Court rejected a petition by the Appellants, owners of grocery stores in Tel Aviv, to order the Tel Aviv Municipality to close the businesses operated by Respondents 2-6 (the A.M.P.M and Tiv Taam supermarket chains, hereinafter: the “Respondents”), which are open on the Sabbath, in violation of Section 2 of the Tel Aviv-Jaffa (Opening and Closing of Stores) Ordinance, 5740-1980 (hereinafter: “the Ordinance”), which prohibits opening stores on the day of rest. It shall be noted that each Sabbath the Municipality issues fines in the amount of NIS 660 to businesses that operate on the day of rest, under Section 265 of the Municipalities Ordinance. Given that the Municipality has additional authorities to enforce the Ordinance beyond imposing fines, including filing a motion for an order to close a business that violated the provisions of an ordinance passed according to Section 249(21) of the Municipalities Ordinance (Section 264A of the Municipalities Ordinance) – the issue at hand is whether the Municipality was obligated to exercise them?

The Supreme Court (opinion by Deputy President M. Naor, with President A. Grunis and Justice E. Rubinstein, concurring) upheld the Appeal on the following grounds:

Regarding judicial review of an administrative agency’s enforcement policy, the Court ruled that: “indeed, in order for the Court to intervene in the scope of enforcement of one law or another, the competent agencies must completely absolve themselves of their duty to enforce the law […] or unreasonably refrain from fulfilling their duty”. However, when dealing with enforcement policy, the agency’s discretion exists within the law and the need to enforce it. The agency has a duty to uphold the law and insist upon others upholding it as well. To the extent that the administrative agency’s position is that it is no longer appropriate to enforce the law, it cannot absolve itself of the duty to enforce it, but rather may act to change the law – and a fortiori when an ordinance is at stake, as in the case before us. However, as long as the law has not been changed, the agency must act according to the existing state of the law.

There are possible exceptions to the agency’s duty to enforce the law, such as when the law is anachronistic and conflicts with existing social positions. Such an exception does not exist here. The Municipality does not maintain it is inappropriate to enforce the Ordinance due to the nature and culture of Tel Aviv-Jaffa. It instead argues that it is in fact enforcing the Ordinance through imposing fines on anyone who opens their business in violation of the Ordinance. The Respondents are those arguing that due to the nature and culture of the city, the Municipality should not be forced to enforce.

The agency’s duty to enforce the law means that the range of reasonable discretion at the enforcement stage – as broad as this range may be – is more limited than the range of discretion it had when passing the Ordinance. After passing the ordinance, the agency must exercise its discretion under the ordinance and its objectives. As a rule, the administrative authority must enforce the ordinance it passed and it no longer has broad discretion on whether to enforce it.

The purpose of exercising an enforcement policy is, naturally, to bring about the actual enforcement of the law. Exercising ineffective means of enforcement does not realize this purpose. Lack of effective enforcement deals a severe blow to the rule of law.

When the means employed by the administrative agency bear no fruit, refraining from employing additional means could, in certain circumstances, lead to conclude that in fact the agency is refraining from fulfilling its duty to exercise discretion or that its discretion is unreasonable. In any event, when the existing enforcement policy does not lead to the desired result, the administrative agency must, at the very least, consider exercising additional means of enforcement within its authority. Refraining from considering additional means of enforcement in such circumstances could constitute a flaw in the agency’s conduct – a flaw which merits the Court’s intervention.

In this case, there is no doubt that the Respondents are violating the Ordinance. As such, in principle, the Municipality must act to close these businesses on the day of rest. This does not stem from a “religious” or “secular” perspective. It stems from the perspective that the law, including the Ordinance, must be followed.

Enforcing only by imposing fines is not, to the proper extent, realizing the objective of the Ordinance. The objective of the Ordinance, in light of the social and religious values regarding the day of rest, means that businesses should indeed be closed on the day of rest – not that businesses who wish to open their doors on the Sabbath can do so provided they are willing to pay a fine.

Enforcing only by imposing fines effectively enables continuous violation of the Ordinance by businesses that are part of large retails chains, who are economically resilient and who remain sufficiently profitable each Sabbath. It is therefore still in their benefit to continue to open their doors on the day of rest, despite the fine.

The outcome of this enforcement is that the Respondents gain profits from an additional business day on the weekend. The Municipality’s treasury benefits from the significant fines it imposes upon the Respondents each week. But the rule of law – which requires obeying the orders of the law – is compromised. This difficulty grows when it becomes impossible to ignore the concern that it is convenient for the Municipality – in light of the economic benefits of imposing fines – not to insist upon following the Ordinance.

If the nature and culture of Tel Aviv-Jaffa requires, in the opinion of its elected leaders, not to close businesses such as the Respondents’, on the Sabbath, the Ordinance may be changed in the manner prescribed by law. However, as long as the Ordinance has not been changed, the operating assumption is that it is to be followed.

Indeed, the Municipality’s authority to request a Prohibition to Open Order, under Section 264A of the Municipalities Ordinance, is discretionary. The Municipality is not required to exercise this authority each and every time the Ordinance has been violated. However it must consider whether and how to exercise the various means of enforcement it has in its toolbox.

The submissions demonstrate that the Municipality chose to impose fines on Respondents 2-6. They do not demonstrate that the Municipality so much as considered approaching the Local Affairs Court to move for a Prohibition to Open Order. Neither considering the possibility of filing a petition for such an Order, nor examining any other option for achieving – to a reasonable and proportional degree in light of all considerations – the Ordinance’s proper enforcement, constitutes a violation of the Municipality’s duty to act and to exercise discretion.

In these circumstances, the Municipality violated its duty to exercise discretion from time to time, and in doing so, its conduct was flawed as to merit the Court’s intervention.

The Appeal is upheld and the matter shall be remanded to the Municipality so that it exercises its discretion and adopt a meaningful decision on how to exercise its authorities under Section 264A of the Municipalities Ordinance or any other power in addition to its power to impose fines. The Municipality shall examine its position regarding the Ordinance’s enforcement within 60 days from the date of this decision. The Municipality’s decision in this matter shall be delivered to the Appellants’ attorney and, of course, is subject to additional judicial review.

Justice Rubinstein joins and refers to two additional issues: the Municipality’s conduct as a public entity, and the insult to the Sabbath as a national and religious day of rest for the Jewish people. Justice Rubinstein ends his ruling with the hope that city leaders will succeed in identifying an enforcement mechanism, which would honor the law and the Sabbath, as well as be reasonably satisfactory to the fair residents of Tel Aviv who wish to rest.

Voting Justices:

Naor, Miriam

Primary Author

majority opinion

Grunis, Asher

majority opinion

Rubinstein, Elyakim

Author

concurrence

Full text of the opinion:

The Supreme Court sitting as a Court of Appeals for Administrative Affairs

AAA 2469/12

Before: The Honorable President A. Grunis

The Honorable Deputy President M. Naor

The Honorable Justice E. Rubinstein

The Appellants: 1. Morris Bremer

2. Eddie Weisbaum

3. Motty Maoz

4. David Haimov

5. Eliyahu Miller

6. Yitzchak Elkoser

7. Pinchas Tzelik

8. The General Association of the Merchants and the Self-Employed

The Respondents: 1. The Tel Aviv-Jaffa Municipality

2. A.M.P.M.

3. Tiv Taam Daily Ltd.

4. Tiv Taam Reshatot Ltd.

5. Tiv Taam Hacarmel Holdings Ltd

6. Tiv Taam Hodnigs (sic.) 1 Ltd.

Appeal of the judgment of the Tel Aviv-Jaffa Administrative Affairs Court dated February 22, 2012, in AP 2500/07, given by the Honorable Justice E. Covo.

Date of Session: 23^rd of Nissan, 5773 (April 3, 2013)

On behalf of Appellants 1-7: Adv. Ivri Feingold

On behalf of Appellant 8: Adv. David Shub

On behalf of Respondent 1: Adv. Rachel Avid

On behalf of Respondent 2: Adv. Meir Porges;Adv. Shlomi Bracha

On behalf of Respondents 3-6: Adv. Ronen Buch; Adv. Eli Shimelevich

Judgment

Deputy President M. Naor:

Before us is an appeal against the judgment of the Tel Aviv-Jaffa District Court, sitting as an Administrative Affairs Court (Deputy President E. Covo) in AP 2500/07 dated February 22, 2012. In the judgment, the Court rejected the Appellants' petition to instruct the Tel Aviv-Jaffa Municipality to close various businesses that are open on the Sabbath.

Background

Appellants 1-7 are owners of retail businesses selling food (grocery stores), which operate in the city of Tel Aviv-Jaffa (hereinafter: the "Appellants"). Appellant 8 serves as the representative of merchants in Israel on various matters. Respondent 1 is the Tel Aviv-Jaffa Municipality (hereinafter: the "Municipality"), while Respondents 2-6 (hereinafter: the "Respondents") operate "supermarket" stores across the city of Tel Aviv-Jaffa. The Respondents operate their businesses during all days of the week, including the Sabbath. This, in violation of the Tel Aviv-Jaffa (Opening and Closing of Stores) By-Law, 5740-1980 (hereinafter: the "By-Law"), which prohibits opening stores on the day of rest.

Prior to filing the petition to the Administrative Affairs Court, the Appellants approached the Municipality a number of times so that it would exercise its authority and close the Respondents' businesses. On July 26, 2007, the Appellants received a response from the Municipality's Inspection Department, that each Sabbath, businesses operating on the day of rest are fined in the amount of NIS 660. On July 15, 2007, the Appellants sent an additional letter in which they requested that the Municipality take action to close the businesses, pursuant to its authority by virtue of the Business Licensing Law, 5728-1968 (hereinafter: the "Business Licensing Law" or the "Law"). Until the submission of the petition which is the subject of the Appeal, the Appellants did not receive any response on the merits of the issue.

The Proceedings in the Administrative Affairs Court

The Appellants' complaint in their petition was that the Municipality is refraining from enforcing the laws related to observance of the weekly day of rest, as it is not taking action to close the businesses that are open on such day. They argue that the Municipality must close the businesses that are open on the Sabbath, pursuant to its authorities by virtue of the Business Licensing Law, the Municipalities Ordinance [New Version] (hereinafter: the "Municipalities Ordinance") and the By-Law. The Appellants argued that the Respondents gain a competitive advantage over the Appellants due to their openly violation of the Law, since the Respondents attract consumers who prefer to do their shopping on the Sabbath. Had the Respondents refrained from violating the Law, so it is argued, such consumers would do their shopping during the week, and at least some of them would do so at the Appellants' businesses. According to the Appellants, the Respondents' conduct amounts to "unfair competition" which compromises the Appellants' right to freedom of occupation. As such, the Municipality has a duty to take action against the Respondents, in accordance with the Business Licensing Law. The Appellants further argued that closing the Respondents' businesses is necessary in light of the social and religious objectives of the day of rest, and since the operation of the Respondents' businesses on the Sabbath constitutes a nuisance and adversely affects the residents' quality of life.

The Municipality, on its part, argued that it enforces the observance of the day of rest in accordance with what is determined in the Law and in accordance with its administrative discretion. According to it, it is not permitted to exercise the sanctions prescribed in the Business Licensing Law in order to prevent competition or to preserve the sanctity of the Sabbath, since these are not among the purposes of the Law. As for the By-Law: the Municipality argued that it is indeed acting by virtue thereof, since the By-Law, which prohibits the operation of businesses on the Sabbath, only permits imposition of monetary fines, and such fines were indeed imposed upon the Respondents. According to the Municipality, by virtue of the Municipalities Ordinance, it is vested with authority to approach the Municipal Court and to request to close a business transgressing the provisions of the By-Law, however, it argues, the exercise of such authority is subject to discretion. In the judgment it was even noted that in the case at hand, the Municipality decided not to exercise its authority in accordance with a general policy, which, according thereto, derives from the population's needs and desires. The Respondents, in general, joined the Municipality's arguments.

During the hearing of the petition, the Administrative Affairs Court instructed the Attorney General to submit its position on the matter at hand. The Attorney General did not appear at the petition hearing however submitted his position in writing. According to that stated in his position, the Municipalities Ordinance authorizes the local authority to arrange the opening and closing of businesses, inter alia, on days of rest, and taking religious tradition reasons into consideration, and grants it the enforcement and inspection authorities in the matter. The authority of local authority to arrange this matter is grounded in the perception that the authority, which represents the local residents, must strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest, which has both national and social characteristics, and making certain economic activity possible." Having said that, the Attorney General emphasized that he attaches importance to the enforcement of the by-laws promulgated by the local authorities "for obvious reasons of maintaining the rule of law, and in light of the public interests of protecting the nature of the Sabbath as a day of rest, in accordance with the characteristics of each area, and taking the composition of the local population into consideration, as prescribed in the By-Law."

Finally, the Attorney General stated that the Business Licensing Law is not relevant to the matter, since this law was not intended to be a means of enforcing the By-Law regarding the operation of businesses on the Sabbath and on days of rest.

In its judgment, the Court addressed two main questions: Are preventing unfair competition and preserving the sanctity of the Sabbath among the objectives of the Business Licensing Law and is the Municipality permitted to close businesses that operate on the Sabbath by virtue of this law; and are there other laws that authorize the Municipality to enforce the closing of the Respondents' businesses on the Sabbath, and if so, does the Municipality's decision not to exercise its authority to request to close the businesses justify the Court's intervention.

As for the first question, the Court ruled that preventing unfair competition is not included among the purposes of the Business Licensing Law, which are listed in Section 1 thereof, based both on the language of the Law, and in accordance with case law. The Court explained that while freedom of occupation must be taken into consideration in the framework of the Law, only the freedom of occupation of the license applicant should be examined, "and the Municipality does not have the authority to consider the impact of giving a certain person the possibility of opening his business, on the level of competition in the market, or how it shall impact another person's income" (paragraph 16 of the judgment). According to the Court, such considerations could empty of content the Business Licensing Law, which was meant to ensure that businesses that comply with the purposes of the Law shall be entitled to a business license. The Court further ruled that the "inconvenience" caused to the Appellants' businesses does not constitute an infringement of their freedom of occupation, since they are all subject to the same Municipality policy. Therefore, the Court ruled that the Appellants were not discriminated against and their freedom of occupation was not infringed. As for preserving the sanctity of the Sabbath, the Court ruled that this is a clear religious purpose, which is a matter of public controversy, and in any event is not listed among the purposes of the Business Licensing Law. As such, it is not possible to take steps against businesses that are open on the Sabbath due to them "violating the sanctity of the Sabbath" and offending religious values. The Court clarified that the sanctions prescribed in the Law cannot be used other than for the purposes which the Law was meant to realize, and therefore, the Municipality should not be forced to take steps against the Respondents under the Business Licensing Law.

The Court also further rejected the Appellants' argument that the activity of Respondents' businesses on the Sabbath constitutes a nuisance. Firstly, it was determined that it is problematic that the Appellants, who are grocery stores owners, and whose first priority is their personal economic interest, present themselves as those who are also representing the interests of the city's residents. The Court further ruled that the Appellants adduced no evidence that the opening of the Respondents' businesses constitutes a nuisance. As such, it ruled, the presumption of proper administration applies to the Municipality.

As stated, the second question the Court dealt with was whether it is appropriate to force the Municipality to take steps against the Respondents by virtue of provisions of other laws. The Court stated that the only and direct sanction that is possible due to the violation of the By-Law is the imposition of a monetary fine, by virtue of Section 265 of the Municipalities Ordinance. As the Municipality clarified, it indeed exercises this sanction. The Court stated that notwithstanding that according to the Appellants, the fines do not deter and are "mocking the poor", the Municipality is not entitled to take other enforcement actions when the monetary fine was prescribed as the means of enforcement in the case of violation of the By-Law. As such "There is no relevance to the question whether or not the sanction that was taken in the framework of the law is effective" (paragraph 27 of the judgment).

The other source of authority which the Court discussed is Section 264A of the Municipalities Ordinance. This Section grants the Municipality authority to request that the Municipal Court order owners, managers or operators of a business operating on the Sabbath to refrain from opening it contrary to the By-Law. The Court emphasized that when considering which means of enforcement to apply, the Municipality must strike a balance between the conflicting interests, including: freedom from religion, freedom of conscience, freedom of occupation and the public's needs, on the one hand, and on the other hand the desire to preserve the values of tradition and avoid offending religious feelings. The Court addressed the fact that the Municipality did not file motions to close the Respondents' businesses pursuant to Section 264A, but ruled that even if the authority refrains from using all of the means it has at its disposal for enforcement purposes, this does not suggest that there was a flaw that justifies the Court's intervention, since "as long as the Court is under the impression that the authority is not completely refraining from enforcing the law, and that it is not applying selective enforcement, as a rule, there is no place for judicial intervention" (paragraph 35 of the judgment). The Court ruled that it must take caution not to replace the authority's discretion with its own discretion, also since at hand are matters that are at the heart of public and political controversy. According to the Court, to the extent that the Appellants wish to convince that the balance struck by the Municipality between the State's Jewish character and the fundamental values that anchor individual liberties, should be altered, they should act in the public arena, and convince that their position is superior using democratic means.

In summary, the Court ruled that it must apply great judicial restraint when it comes to an enforcement policy in a matter which is at the heart of political and public controversy. The Court determined that the Appellants did not meet the burden lies with them to demonstrate that the Municipality's policy in enforcing the By-Law is so extremely unreasonable that it justifies judicial intervention. The Court ruled that "in these circumstances, it is presumed that the authority acted lawfully, in light of all of the facts, and its decision not to exercise the authority to file motions to close the businesses – is reasonable and proportional" (paragraph 39 of the judgment; emphasis added – M.N.). Therefore, the Court rejected the Appellants' petition and obligated them to pay the Municipality's expenses in the amount of NIS 75,000.

Hence the Appeal before us.

The Appellants' Arguments

The Appellants are claiming against the judgment of the Administrative Affairs Court. According to the Appellants, the Court erred in ruling that it is inappropriate to intervene in the By-Law enforcement policy which the Municipality is applying. They argue that as long as the By-Law remains in effect, the principle of the rule of law precludes the possibility of accepting a situation in which the Municipality does not enforce the closure of businesses that knowingly and publicly violate the By-Law. The Appellants argue that the Municipality, by contenting itself with imposing fines of only NIS 660 (the amount of the fine was raised after the petition was filed and is currently NIS 730) each and every Sabbath, and particularly when it comes to only one fine each Sabbath for each business, is making a mockery of the Law and encouraging its violation. They further argue that the Municipality's enforcement failures cause them heavy financial damage; compromise the fundamental principle of the rule of law and the principle of equality in enforcement; and prejudice constitutional basic rights, including the right to property, the freedom of occupation and equality. Since large businesses, whose daily profits exceed the amount of the fine, can allow themselves to open their doors on the day of rest despite the fine and in doing so, increase their profits, while small businesses, such as the Respondents (sic.), cannot do so, and therefore are injured.

According to the Appellants, the lower court erred when it primarily dealt with the Business Licensing Law, since, according to them, the main issue is the Municipality's duty to exercise all of the legal means at its disposal. Additionally, according to them, the Court also erred when it ruled that the Business Licensing Law does not authorize the Municipality to take action in the case at hand. The Appellants believe that in the business licenses that were issued to the Respondents by virtue of the Business Licensing Law (hereinafter: the "Business Licenses"), it is explicitly prescribed that they are not valid during the Sabbath and Israel holidays. Therefore, they argue, the activity of the Respondents' businesses is carried out on the Sabbaths without them possessing a valid business license, and therefore the sanctions prescribed in the Business Licensing Law regarding unlicensed businesses should be imposed thereupon. The Appellants further argue against the Court's ruling that the Municipality is not authorized to enforce the observance of the day of rest by means of the Business Licensing Law since such enforcement is not part of the Law's purposes. According to them, in this matter, it is necessary to distinguish between refusal to issue a license by virtue of the Business Licensing Law and enforcing such Law. While the first can be done only on grounds related to the purposes of the Law, the principle of the rule of law warrants that there be no similar distinction with respect to the enforcement of the Law – any violation of the Law, regardless of the purpose of the violation or the motivations of those requesting to enforce, must be enforced.

The Appellants also claim against the lower court's ruling that their freedom of occupation was not infringed. According to them, the meaning of the Court's ruling that "[the Appellants] and the Respondents are subject to the same Municipality policy and therefore [the Appellants] are not discriminated against, and their freedom of occupation is not infringed" (paragraph 17 of the judgment), is that the Appellants are not discriminated against and that their freedom of occupation was not infringed because they, too, could choose to violate the Law and be fined. According to them, the harm caused to the business owners who obey the rest laws due to the violation thereof by the Respondents, is in and of itself the infringement of their freedom of occupation. The Appellants further argue that as a result of the enforcement actions – i.e. imposition of fines – which the Municipality initiated, there is discrimination between the strong and the weak. The Appellants also argue against the Court's ruling that the Business Licensing Law should not be exercised because "preservation of the sanctity of the Sabbath" is an unambiguous religious purpose, and emphasize that they did not argue a religious purpose at all.

According to the Appellants, the essence of the judgment lies in the lower court's ruling that it is inappropriate to intervene in matters which are at the heart of public and political controversy. However, according to them, the controversy itself is not at all relevant to the determination in the matter at hand. The Appellants argue that the principle of obeying the law is not a matter of public controversy. The Municipality cannot absolve itself from enforcing a law only because the matter the law governs is a matter of public controversy. To the extent that the Municipality is not interested in enforcing the By-Law, so the Appellants say, it must act to change it. The Appellants address the great importance of the day of rest, as is expressed also in the rulings of this Court, not only in accordance with the values of the State of Israel as a Jewish state, but also in light of universal and social values.

In light of that stated, the Respondents (sic.) argue that the lower court erred in its decision not to intervene in the Municipality's conduct. They emphasize that there is no dispute that the Respondents' activity constitutes a violation of law. As such, according to them, the Court's ruling that it is inappropriate to intervene in the Municipality's conduct as long as it doesn't completely refrain from enforcing the law, without considering whether the enforcement actions indeed achieve the purpose for which they were intended, is unreasonable and – so they argue – contradicts case law which provides that the Court must examine the enforcement actions.

Finally, the Appellants are claiming against the NIS 75,000 expenses the Court imposed upon them. They argue that these are exceptionally high expenses which have no justification when the Appellants pointed to an undisputed violation of a law, which is related to important public matters. The Appellants further argue that the Court ignored the fact that the Appellants are people with limited means, and that they waited more than 4 years for a judgment in their petition.

The Respondents' Arguments

The Municipality agrees with the lower court's judgment. It argues that the dispute lies in the question what law should be enforced and consequently, what are the means of enforcement the Municipality can apply. It argues that the law which is to be enforced is the By-Law, and according to it, it indeed enforces this law. In this context, the Municipality argues that "there is no dispute that the [Appellants'] petition was meant to lead to a change in the balance the Respondent strikes, by means of the By-Law and the enforcement thereof, between all the relevant interests to permit the opening of stores on days of rest, the social aspects of a uniform weekly day of rest, as well as those that reflect the Jewish and democratic nature of the State, and as well as those that reflect the right of an individual to freedom of occupation" (paragraph 12A of the Municipality's summations).

The Municipality is further of the opinion that contrary to the Appellants' claim, the Court did not determine that it is prevented from applying judicial review, but rather examined the Municipality's actions in accordance with the criteria of administrative law, and found it to be inappropriate to intervene in the enforcement policy the Municipality applies. With respect to the Business Licensing Law, the Municipality argues that there is no basis to the Appellants' argument that the Respondents' business licenses are invalid on the day of rest, and therefore, the Court justly ruled that it is inappropriate to apply the means of enforcement prescribed in that law. The Municipality emphasizes that it is not possible to apply the means of enforcement prescribed in one law due to the violation of another statute, which does not grant the authority to apply such means of enforcement. As for the expenses imposed upon the Appellants, the Municipality argues that the expenses amount was ruled following an extended proceeding and that the Appellants did not point to a public interest which justifies exempting them from their obligation to pay expenses.

Respondent 2 adds that the Appellants are ignoring the nature of the city of Tel Aviv-Jaffa and its residents' needs. It argues that the proper nature of the day of rest is a matter of controversy and there is no justification for accepting the Appellants' position rather than the position that there should be businesses open on the Sabbath. This is particularly so in the city of Tel Aviv-Jaffa, on whose diverse nature, Respondent 2 had discussed at length. According to Respondent 2, "the burden of 'shutting down' the city of Tel Aviv on week-ends is a very heavy burden, which should certainly not be made compulsory for unfounded commercial reasons which have not at all been proven" (paragraph 10 of Respondent 2's summations). Respondent 2 also argues that the Appellants wish to compromise the basic right of each and every resident in the city to shape the content of his or her day of rest in accordance with his or her desire and taste. The Respondent argues that the legislator wished to grant the local authorities complete authorities and full discretion to determine the nature of the day of rest. Therefore, according to Respondent 2, "intervening in the broad discretion given to the Municipality and the public considerations which the Municipality considers when striking such a balance, is not within the scope of the judicial review of the 'administrative action', a fortiori when at hand […] is a matter which was defined by the initiators of the law as 'the serious problem of the dispute between secular and religious" (paragraph 17 of Respondent 2's summations).

Respondents 3-6 argue that it is inappropriate to grant, as a relief, a general declaration pursuant to which the Municipality must enforce the law. To the point of the matter, in addition to the arguments that the other Respondents claimed, Respondents 3-6 emphasize that the Municipality's enforcement policy is to exercise administrative authority, and that there is no justification to intervene in the discretion exercised as long as the Municipality did not completely absolve itself from the responsibility of the enforcement of the law. In this context, Respondents 3-6 argue that the uniqueness of the local authority – as an entity that is closely familiar with the residents' needs and preferences and as a representative democratic entity which is meant to reflect the desires of the city's residents – justifies the broad discretion vested in the local authorities. Respondents 3-6 also claim against the Municipality's policy to impose fines on businesses that are open on the Sabbath, which they argue causes them financial damage, and they argue that "the Municipality should be more attentive to various needs and preferences in the city in which a population that wishes to shop on the Sabbath resides" (paragraph 13 of Respondents 3-6's summations).

According to Respondents 3-6, the Municipality is not authorized to ask the Municipal Court for an order to close a business by virtue of Section 264A of the Municipalities Ordinance, since this section authorizes the Municipality to request a closing order when at hand is a business that violates a by-law that was promulgated pursuant to Section 249(21) of the Ordinance – which provides that the Municipality is permitted to consider "religious tradition reasons". According to the Respondents, it does not appear that the Municipality promulgated the By-Law pursuant to this section, but rather due to the social reasons prescribed in Section 249(20) of the Ordinance. This conclusion is reinforced, so they argue, by the fact that the By-Law was legislated many years before Section 249(21) was added to the Municipalities Ordinance. Respondents 3-6 also object to the Appellants' argument regarding the Business Licensing Law, pursuant to which the purposes of the Law relate only to the issuing of licenses and not to means of enforcement, and also argue that the By-Law was not intended to protect fair competition but rather to realize a social and religious purpose.

The Attorney General also did not appear at the hearing in the Appeal before this Court and resubmitted his position in writing, as was submitted to the lower court, and as specified above.

The Normative Framework

The main question which needs to be ruled upon in the Appeal before us, is whether the Municipality is to be forced to exercise means of enforcement which it has the authority to exercise, and which until now it refrained from exercising. Before I turn to address this question, I shall briefly explain the various statutory provisions which were raised in the framework of this proceeding and the enforcement authorities which the Municipality possesses to enforce them.

(a)Business Licensing Law

The first source of authority upon which the Appellants wish to rely, is, as mentioned, the Business Licensing Law. The purposes of this Law are prescribed in Section 1 of the Law, which reads:

1. (a) The Minister of Interior may, by orders, prescribe and define businesses that require licensing, in order to ensure all or some of the following purposes therein:

(1) Proper environmental quality and prevention of hazards and nuisances;

(2) Prevention of danger to public safety and protection against robbery and breaking in;

(3) Safety of persons at or in the vicinity of the place of business;

(4) Prevention of danger of livestock diseases and prevention of pollution of water sources with pesticides, fertilizers or pharmaceuticals;

(5) Public health, including proper sanitary conditions;

(6) Upholding the enactments related to planning and building;

(7) Upholding the enactments related to firefighting."

Section 14 of the Business Licensing Law deals with businesses that are operated not in accordance with a license and it prescribes the penalties for such actions. Section 20 of the Law authorizes position holders to order a temporary break of business due to infractions of Section 14.

(b)The Municipalities Ordinance and the By-Law

Section 249 of the Municipalities Ordinance deals with a municipality's authorities. Sub-Section (20) therein provides:

"249. A municipality's authorities are:

[…]

(20) To arrange the opening and closing of stores and workshops, restaurants, coffee shops, teashops, beverage shops, cafeterias, canteens and other such institutions […] and to supervise the opening and closing thereof, and to determine – without derogating from the generality of the authority – opening and closing hours on a certain day; provided that the validity of this paragraph shall be subject to any exemption instructed in an order by the Minister (emphases added – M.N.)

Section 265 of the Ordinance provides:

"265. (a) The Minister, with the Minister of Justice's consent, may, by an order published in the official gazette (Reshumot), notify that an offence of a certain provision of a municipal by-law is an offence punishable by a fine, in general, or at prescribed terms or restrictions.

The Minister shall prescribe in an order published in the official gazette (Reshumot) –

The rate of the fine for each offence punishable by a fine, provided it shall not exceed NIS 730, and he may prescribe different rates for the offence, considering the circumstances in which it was committed.

[…]" (emphases added – M.N.).

In 1990, following a doubt that was raised regarding the authority of local authorities to promulgate provisions in by-laws regarding prohibiting opening businesses on the Sabbath and on Israel holidays, the Amendment of the Municipalities Ordinance (Number 40) Law, 5751-1990 (hereinafter: the "Authorization Law") was legislated. This law was meant to vest the local authorities with the said authority and to ensure the validity of the existing by-laws (see: Explanatory Notes to the Municipalities(Prohibition to Open Businesses and the Closure thereof on Days of Rest) Bill, 5748-1988, Bills 134 (hereinafter: the "Explanatory Notes to the Authorization Bill") (this is the original name of the Authorization Bill, see Divrei Haknesset (Knesset Proceedings) 12(3), 1191 (5751)); HCJ 5073/91 Israeli Theatres Ltd. v. The Netanya Municipality, IsrSC 47(3) 193, 197-199 (1993) (hereinafter: the "Israel Theatres Case")). To this end, the Authorization Law added sub-section (21) to Section 249 of the Municipalities Ordinance:

"(21) A municipality may exercise its authority pursuant to paragraph (20) in the area of its jurisdiction or in any part thereof with respect to the Day of Rest, considering religious tradition reasons, and with respect to the 9^th of Av; "Days of Rest" – as specified in Section 18A of the Law and Administration Ordinance, 5708-1948. For this purpose, the Sabbath and Israel holidays – from the entrance of the Sabbath or the holiday until the end thereof; the "9^th of Av" – as defined in the Prohibition to Open Entertainment Places on the 9^th of Av (Special Authorization) Law, 5758-1997" (emphases added – M.N.)

The Authorization Law also added to the Municipalities Ordinance Section 264A, which prescribes that the Municipality may approach the Municipal Court in order to enforce a by-law that was promulgated pursuant to Section 249(21) (see also: the Israel Theatres Case, on pages 199-200):

"264A. (a) If a municipality promulgated a by-law pursuant to Section 249(21) and a business opened contrary to the provisions of the by-law, the court which is authorized to address the offence under such by-law may order the owners, managers or operators of the said business, to refrain from opening the business on the days of rest contrary to the provisions of the by-law (hereinafter: a Prohibition to Open Order), if it was convinced that the business opened contrary to the provisions of the by-law; a motion to grant such an order shall be filed by whomever is authorized to file claims due to an offence under the said by-law, along with an affidavit to verify the facts upon which the motion is based, and the Court may issue the order ex parte, with only the petitioner, if it found that there is justification to do so in the circumstances at hand.

[…]" (emphases added – M.N.)

The Tel Aviv-Jaffa municipality promulgated the By-Law regarding the opening and closing of stores, pursuant to its authorities under the Municipalities Ordinance, in as far back as 1980. Section 2 of the By-Law provides that businesses shall not be opened on the day of rest:

"2. (a) Subject to that stated in sub-Sections (c), (d) and (e), the owner of a store or coffee shop shall not open his business and shall not keep it open on the Sabbath and Israel holidays, except with a special council permit as stated in sub-section (b).

The council may grant a special permit, if the owner proved that he is not Jewish and that he closes his business on all weekly days of rest of his confessional group; such a permit can be given at such terms as the council shall deem fit.

(1) The owner of a coffee shop, other than a bar and a business that sells ice cream, may open it on the Sabbath and Israel holidays, except for the Day of Atonement (Yom Kippur) and serve meals to his customers, within the building in which the business is located, during the following hours:

On the eves of Sabbaths and Israel holidays - until 10:00 pm.

On the Sabbath and Israel holidays – between 10:00 am and 3:00 pm and from April 1 until October 31 also from 6:00 pm until sunset.

A pharmacy shall be open to sell medication on the Sabbath and Israel holidays but only in accordance with a roster which shall be duly prescribed.

On the Sabbath and Israel holidays, except the Day of Atonement (Yom Kippur), a person shall not open and shall not allow anyone acting on its behalf to open a place of public entertainment, other than for cultural and educational activities.

On the Day of Atonement (Yom Kippur) a person shall not open, and shall not allow anyone on its behalf to open, a store or a coffee shop" (emphases added - M.N.)

Additionally, pursuant to that stated in Section 265 of the Municipalities Ordinance, the Municipalities (Offences Punishable by a Fine) Order, 5731-1971 (hereinafter: the "Municipalities Order") had been issued in the past, from which it emerges that opening a business on the Sabbath in the city of Tel Aviv-Jaffa, is an offence punishable by a fine:

"1. Any infraction of a provision in any of the sections specified in Column B of the by-laws specified in Column A of the First Schedule is an offence punishable by a fine.

2. (a) The rate of the fine for each offence as stated in Section 1 shall be as per the level of the fine that was prescribed alongside it in the First Schedule in Column C.

(b) In this Order -

Level of Fine	In New Israeli Shekels
A	730
B	475
C	320
D	245
E	165
F	105
G	85

[…]

First Schedule

[…]

Part B – Tel Aviv – Jaffa

Column A By-Laws	Column B Sections	Column C Level of Fine
[…]

10. Tel Aviv–Jaffa (Opening and Closing of Stores) By-Law, 5740-1980	2(a), (d), (e), 7(a)-(c)	A
	3	B
	7(d)	C

An offence under Section 2(a) of the By-Law, which prohibits opening businesses on the Sabbath, is ranked as a Level A offence punishable by a fine, the rate of which is currently NIS 730. This rate was prescribed in the Municipalities (Offences Punishable by Fine) (Amendment no. 6) Order, 5771-2011. The rate of the fine at this level, as was before this amendment and at the time of the filing of the petition which is the subject of this Appeal, was NIS 660, in accordance with what was prescribed in the Municipalities (Offences Punishable by Fine) (Amendment no. 2) Order, 5764-2004.

Discussion and Ruling

A.The Business Licensing Law

In the Administrative Affairs Court the Municipality was not requested to file a Statement of Response and the petition was denied. During the hearing we held in the Appeal, on March 4, 2013, the Municipality's attorney agreed to view the proceeding as though a statement of response had been filed in the first instance court. I will explain the importance of this matter further on.

With regard to the Business Licensing Law, my opinion is as the opinion of the lower court and the Attorney General, that it is inappropriate, in this matter, to discuss the exercise of authorities by virtue of this Law, even without addressing the question of which values the Business Licensing Law protects and without discussing the question of the required linkage – if any – between the purposes of the Law and the motivations of those demanding that the Law be enforced. The Appellants' position that the Respondents are violating the Business Licensing Law relies on their argument that "in all of the business licenses that the Municipality grants, it is explicitly and clearly written" that the license is not valid on days of rest. However, the Appellants have not proven this argument of theirs. The "business license" which the Appellants attached (as Annex IX of the petition which they filed to the Administrative Affairs Court) in support of their said argument, is not – as they imply – a license by virtue of the Business License Law, but rather a "permit to open a business" which was issued under the By-Law. The Appellants did not attach any business license of Respondents 2-6 by virtue of the Business Licensing Law and did not request that such license be furnished.

In the hearing held before us, the Appellants' attorney referred to the permit to open a business which the Appellants filed to the Court and argued that "The Municipality stipulated and obligated the permit-holder to act in accordance with the terms of the license. Meaning, this is very strong evidence that the stipulation also appears in the license. I shall mention that no one denied that. We are assuming that such stipulation exists". Additionally, when the Appellants' attorney was asked if there is a stipulation requiring the holder of the license to act in accordance with the By-Law in the Respondents' business licenses, he responded that "None of the Respondents denied this. None denied the fact that their business licenses are inherently subject to the By-Law, since otherwise this would also be an omission on the part of the Municipality […] if there is no such stipulation, the Respondents should present a business license and we shall check." However, when the Municipality's attorney was explicitly asked if there is a stipulation regarding compliance with the By-Laws in the business licenses under the Business Licensing Law, her unequivocal answer was that such a stipulation is not included in the license. Therefore, I accept the conclusion that the Appellants did not succeed in proving that the Business Licensing Law is related to the matter before us, and no infraction of the provisions of such law was proven. As such, I do not see any need to further address these matters.

B.The By-Law

At the outset, I request to clarify how and at what stage Section 264A of the Municipalities Ordinance was mentioned, which in my opinion is the crux of the discussion before us.

First I shall state that the section was not explicitly mentioned in the Appellants' early applications to the Municipality before filing the administrative petition. The section was also not explicitly mentioned in the administrative petition that the Appellants filed. However, following an oral motion raised by the attorney of one of the petitioners in the hearing before the lower court on October 21, 2009, to amend the petition by way of adding Section 264A of the Municipalities Ordinance, on October 28, 2009 – after the parties' summations regarding in limine arguments were filed, but before the petition was discussed on its merits – the Appellants filed a "Motion to Amend and/or Clarify an Administrative Petition". In the motion, the Appellants requested to add to the petition that the Respondents' activity is illegal also "under the Municipalities Ordinance, including Sections 249(20), (21); 264, 265", and, to list, among the means which the legislator granted the enforcement officials: "a motion to the court pursuant to Section 264A of the Municipalities Ordinance and in accordance with the Tel Aviv-Jaffa (Opening and Closing of Stores) By-Law, 5740-1980, to exercise the authorities granted thereto". The Appellants emphasized that "such a motion is filed solely for the sake of caution and is intended to clarify the legal sources upon which the petitions are based, particularly in light of the Court's remark during the hearing regarding referencing the relevant legislation."

In its response to the Appellants' motion to amend, the Municipality's attorney notified that she objects to the amendment of the petition if and to the extent that the purpose of the amendment is to respond to her argument regarding the purposes of the Business Licensing Law and the objectives thereof. Having said that, the Municipality's attorney added:

"If and to the extent that the requested amendment does not intend to materially change the petition, but only to specify additional means of enforcement which the Respondent is required by [the Appellants] to apply, within its authorities to determine the arrangements for the opening and closing of businesses on the Sabbath and holidays and to enforce them, then it is unnecessary, also according to [the Appellants], since the [Appellants'] allegations regarding how the Respondent exercises its enforcement authority and their attempt to take the Respondent's given discretion in exercising its enforcement authority away, received a response in Sections 21-22 of the Respondent's response to the petition, and in this matter, it makes no difference which means of enforcement [the Appellants] demand that the Respondent apply" (original emphases – M.N.)

The other Respondents also objected to the motion to amend. Respondent 3 (which is Respondent 2 in the case at hand) argued that at hand was an addition of a cause of action, since the petition in its existing format requested a remedy of exercising specific enforcement authorities, while respondents 4-5 (which are Respondents 3-4 in the case at hand) argued, similarly to the Municipality, that in any event the amendment shall not make any real difference since the sections of the Law that are mentioned in the petition are presented by way of illustration.

The Appellants' attorney notified during the hearing that was held on September 21, 2010, that "in light of the responses filed to the motion to amend the petition, from which it emerges that there is no need therefor, I withdraw the motion." Meaning, there was no decision not to relate to Section 264A of the Municipalities Ordinance in the framework of the proceeding before the lower court. Furthermore, all of the parties in fact related to Section 264A in the summations they filed, and thus, the lower court related to this section in its judgment.

From the material before us, it does not emerge that any discussion whatsoever had been held in the Municipality, until the examination of the petition, regarding the question whether exercising the authority pursuant to Section 264A of the Municipalities Ordinance should be considered. As stated, the Municipality agreed that the hearing shall be deemed as through a statement of response had been submitted in the first instance court, and it did not request a possibility to present additional material to us (or to the first instance court). Therefore, my assumption is that we possess all of the facts necessary to rule.

(1)The Enforcement Authorities in the Municipality's Possession

It is clear that the means of enforcement which are at the Municipality's disposal change according to the law, the upholding of which, it must protect. According to the Respondents, the provision violated is Section 2 of the By-Law and the Municipality is exercising the legal measure of imposing fines in accordance with its authority by virtue of Section 265 of the Municipalities Ordinance, together with the Municipalities Order, in order to enforce the violations of the By-Law. The lower court ruled in the matter that "with respect to the By-Law - there is no dispute the only and direct sanction for the violation thereof, is the imposition of a monetary fine" (paragraph 27 of the judgment; emphasis added – M.N.). However, as was explained above, imposing fines under Section 265 of the Municipalities Ordinance is not the only sanction in the Municipality's tool box for handling the violation of Section 2 of the By-Law. As stated, Section 264A of the Municipalities Ordinance prescribes that the Municipality is authorized to file a motion to the Municipal Court to grant a Prohibition to Open Order for a business that is violating a provision of a by-law that was promulgated by virtue of Section 249(21) of the Municipalities Ordinance.

In this context I shall state that Respondents 3-6's argument, that the Municipality was not permitted to exercise its authority by virtue of Section 264A of the Ordinance, is to be rejected. As stated, their argument is that Section 2 of the By-Law was not promulgated pursuant to Section 249(21) of the Municipalities Ordinance which authorizes the authority to consider considerations of religious tradition, but actually rather pursuant to Section 249(20) of the Ordinance. However, this argument cannot be accepted. The fact that Section 249(21) was legislated later does not lead to the conclusion that Section 2 of the By-Law does not rely thereupon. Section 4 of the Authorization Law – the law which added Sections 249(21) and 264A of the Ordinance – explicitly ratified old by-laws, while determining:

"4. A by-law regarding the opening and closing of businesses, which a municipality or municipal council promulgated before the commencement of this law, and which would have been duly effected had this law been in effect at such time, shall be deemed from the commencement of this law, as though it had been promulgated thereunder" (emphases added – M.N.)"

Two objectives underlie the day of rest: a social objective and a religious-national objective (see and compare: the Israeli Theatres Case, paragraphs 3 and 14 of President Shamgar's judgment; HCJ 5026/04 Design 22 – Shark Deluxe Furniture Ltd. v. Rosenzweig Zvika, Director of Sabbath Work Permits Department – Inspection Division, Ministry of Labor and Social Affairs, IsrSC 70(1) 38, paragraphs 16-18 and 20 of President Barak's judgment, and paragraph 2 of my statements there (2005); Yitzhak Zamir The Administrative Authority Volume A 62-63, 68 (Second Edition, 2010) (hereinafter: The Administrative Authority A)). As mentioned, the Authorization Law was intended to remove the doubt regarding the authority of local authorities to arrange the prohibition to open businesses on the day of rest and permitted the authorities to consider considerations of religious tradition in this matter (see: the Explanatory Notes to the Authorization Bill). Section 2 of the By-Law embodies both social values and Jewish-religious values and Section 4 of the Authorization Law determines that the By-Law should be deemed as though it had been legislated pursuant thereto and in accordance with the authority vested in the Municipality by virtue of Section 249(21) of the Ordinance (and see: the Israeli Theatres Case, paragraph 3 of President Shamgar's judgment).

An additional means of enforcement which may be available to the Municipality is Section 254 of the Municipalities Ordinance. This section, which was mentioned by the Attorney General, prescribes a fine in the amount of NIS 3,600 to anyone who transgresses a provision of a by-law and an additional fine of NIS 160 for each day the offence continues. However, Section 254 was not mentioned by the Appellants or the Respondents, and therefore I am not addressing the possibility of exercising this means of enforcement. In any event, the Municipality's conduct is to be examined in light of this legal situation, pursuant to which the Municipality has additional sanctions available, beyond the imposition of fines. As such, the question in which the parties are disputed is – given that the Municipality has additional enforcement authorities in order to enforce the By-Law – was the Municipality obligated to exercise them?

(2)The Discretion vested in an Administrative Authority in Determining an Enforcement Policy

Is it appropriate to intervene in the Municipality's "decision" to enforce the By-Law by imposing fines without exercising another sanction? In fact, and as I shall clarify, at hand is not really a "decision". There is no evidence that the question whether to exercise an additional sanction was even considered. It should be noted that the petition before us does not address considerations which the Municipality must consider when promulgating a by-law. This distinguishes the case before us from the matter addressed by this Court in HCJ 953/01 Solodkin v. The Beit Shemesh Municipality IsrSC 58(5) 595 (2004) (hereinafter: the Solodkin Case), which addressed the scope of the local authority's discretion when promulgating the by-law itself. Our matter is not the content of the by-law but rather the manner of the enforcement (or lack of enforcement) thereof.

The lower court explained that the local authority has broad discretion, specifically in all that relates to determining enforcement policy (see: HCJ 551/99 Shekem Ltd. v. Director of Customs and VAT), IsrSC 54(1) 112, 125-165 (2000) (hereinafter: the "Shekem Case"), while stressing that it is important the Court not replace the authority's discretion with its own (ibid, paragraph 9 of Justice Zamir's judgment).

Regarding the matter of the judicial review of an administrative authority's enforcement policy, it was ruled that "indeed, in order for the Court to intervene in the level of enforcement of one law or another, the competent authorities must completely absolve themselves from their duty to enforce the law […] or refrain from fulfilling their duty in an unreasonable manner" (HCJ 6579/99 Filber v. The Government of Israel (November 1, 1999); and see also: the Shekem Case, paragraph 8; HCJ 10202/01 The Organization of Agents and Gas Station Owners in Israel v. The Attorney General IsrSC 57(5) 713, 718 (2003); The Administrative Authority A, on page 275, footnote 114). However, also when dealing with enforcement policy, the authority's discretion exists in light of the law and in light of the need to enforce it (see: HCJ 1027/04 The Independent Cities Forum v. Israel Land Council, paragraph 51 of Judge Arbel's judgment (June 9, 2011) (hereinafter: the Independent Cities Forum Case)). The authority has a duty to uphold the law and insist on its being upheld by others. As Judge Zamir said in the Shekem Case (on page 125): "Indeed, the enforcement of the law, any law, is a fundamental basis of the rule of law […] obviously that this duty [to enforce the law – M.N.] is imposed upon the competent authority. (See also: The Administrative Authority A, on pages 76, 83-84). To the extent that the administrative authority's position is that it is no longer appropriate to enforce the law for which it is responsible, it cannot absolve itself from the duty to enforce, but it rather has the option to act to change the law – and a fortiori when, as in the case before us, at hand is a by-law. However, as long as the law has not been changed, the authority must act in accordance with the legal situation actually in effect (see: the Independent Cities Forum Case, paragraph 51 of Judge Arbel's judgment; Daphne Barak-Erez Administrative Law, Volume A, Section 4.5 and the references there (2010) (hereinafter: Administrative Law A))

There are possible exceptions to the authority's duty to enforce the law, such as cases in which the law is anachronistic and does not accord with the existing social positions (The Attorney General's guideline not to enforce the prohibition (before it was cancelled) of homosexual intercourse between consenting adults and the prohibitions against abortions and attempted suicide, can, for example, be mentioned (and see: CrimA596/73 Machaid v. The State of Israel, IsrSC 28(1) 774, 774-775 (1974); Michal Tamir Selective Enforcement 31-32 (2008) (hereinafter: Selective Enforcement); Ruth Gavison Administrative Discretion in Enforcing the Law 61-62 (1991); Dalia Even-Lahav "The Executive Authority's Custom not to Enforce Law" Mishpat U’Mimshal (Law and Government) B 477, 486-493 and particularly footnote 50 (5755))). Such an exception does not exist in the case before us. The Municipality is not arguing that it is inappropriate to enforce the By-Law due to the nature of the city of Tel Aviv-Jaffa. It argues that it is doing so, and is imposing fines upon anyone who opens businesses contrary to the By-Law. The Respondents are the ones arguing that due to the nature of the city, the Municipality should not be forced to enforce.

From the authority's duty to ensure the upholding of the law it follows that the authority's range of reasonable discretion at the enforcement stage – as broad as it may be – is more limited that the range of discretion it had when promulgating the By-Law. After promulgating the By-Law, the authority must exercise its discretion in light of the By-Law and the objectives thereof (see: the Solodkin Case, paragraph 23; The Administrative Authority A, on pages 133 and 136). As a rule, the administrative authority must enforce the By-Law it promulgated and it no longer has broad discretion regarding the question whether to enforce it.

The purpose of exercising an enforcement policy is, naturally, to bring about the actual enforcement of the law. Exercising means of enforcement which are not effective does not realize this objective. Lack of effective enforcement of the law means a severe blow to the rule of law (see: HCJ 5377/09 Regavim v. The Minister of Defense, paragraph 7 (August 10, 2011) (hereinafter: the Regavim 1 Case); HCJ 8806/10 Regavim v. The Prime Minister, paragraph 7 (September 4, 2011) (hereinafter: the Regavim 2 Case)). It being noted that it is hard to reach a level of total enforcement. It is not always possible to reach total enforcement of the law. There is also a question of resources (see HCJ 6396/96 Zakin v. The Mayor of Beer Sheva, IsrSC 53(3) 289, 304-305 (1999); the Shekem Case, paragraph 8; HCJ 6243/08 The Preservation of the National Lands Movement v. The Minister of Defense, paragraph 23 (December 2, 2010)), and it is even doubtful whether full enforcement is always desirable (see: Selective Enforcement, on pages 42, 48-49). This is one of the reasons for the caution the Court applies when exercising judicial review on the administrative authority's priorities in enforcing a law (see: the Shekem Case, paragraph 8). When determining an enforcement policy, the authority must strike a balance between the various legitimate interests related to the matter and it is certainly possible that in light of these considerations it will not be possible or proper to apply an enforcement policy which shall reach total or almost total enforcement. However, as stated, when applying an enforcement policy, the authority must strive to promote the law's objectives and to enforce it: "Determining priorities does not exempt the authority from enforcing the law and from applying ongoing self-examination" (emphases added- M.N.) (The Regavim 2 Case, paragraph 7; and see also: The Regavim 1 Case, paragraph 9: The Administrative Authority A, on page 136).

Other than the duty to enforce, administrative law has prescribed an additional review mechanism to make sure that the principles outlined in the law and the authorities vested in the administrative authority shall not become a dead letter - the recognition of the existence of the authority's duty to exercise its discretion (see: the Regavim 2 Case, paragraph 7; Administrative Law A, in Section 6.1; Yitzhak Zamir The Administrative Authority Volume B 1079-1080, 1087-1088 (Second Edition, 2010) (hereinafter: The Administrative Authority B)). "An authority which possesses authority to consider and decide, has been handed not only a right to exercise the authority but also the duty to consider the exercise thereof and to exercise it when that is justified" (HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and The Minister of Religions, IsrSC 47(5) 485, 496 (1993); and see also: The Administrative Authority B, on page 1079). Case law also provides that the granting of administrative authority to an authority is accompanied with an ongoing duty to examine the need to exercise it, also when at hand is discretionary authority:

"[…] Even when we say that the term "may" means granting discretion – and this is indeed what is said – the holder of the discretion is still not allowed, according to case law and law, to not consider at all if a certain person in a certain case should be granted his wish. Discretion – as a rule – is accompanied by a duty, and that duty is that the entity possessing the authority must address the matter before it and consider it. Against such duty, exists the right of the individual that the entity that possesses authority actually consider the matter. See, for example: HCJ 297/82 Berger v. The Minister of Interior [12], on page 35 (Justice Barak), and on pages 45, 46-48 (President Shamgar); Y. Zamir The Administrative Authority (Volume B) [23], on pages 700-702. After all, we are also dealing with the relationship between rights and obligations that applies in a system entailing discretion in financial outlays.

[…]

As for the actual application of the authority, we knew that in certain circumstances and given certain conditions, the entity that possesses authority must apply its authority, otherwise this would frustrate the purpose of the law. This is the case wherever the law grants discretionary authority" (HCJ 2344/98 Maccabi Health Services v. The Minister of Finance, IsrSC 54(5) 729, 758 (2000)).

And as my colleague Justice Rubenstein has ruled regarding exercising authority:

"Case law prescribes that the granting of administrative authority is accompanied with the ongoing duty to examine the need to exercise it, even when at hand is discretionary authority (HCJ 297/82 Berger v. The Minister of Interior, IsrSC 37(3) 29, according to which, once authority has been granted to an authority, it is not be left unused (Deputy President - as his title was at the time - Shamgar, on page 46); HCJ 2344/98 Maccabi Health Services v. The Minister of Finance, IsrSC 54(5) 729, 758))." HCJ 10440/08 Besserglick v. The Consumer Protection Appointee at the Ministry of Trade and Industry, paragraph 14 of Justice Rubenstein's judgment (February 15, 2009) (hereinafter: the Besserglick Case); and see also Administrative Law A, Section 6.6.

When the means applied by the administrative authority do not bear fruit, refraining from applying additional means could, in certain circumstances, lead to the conclusion that in fact the authority is refraining from fulfilling its duty to exercise discretion or that the discretion it exercised is unreasonable. In any event, when the existing enforcement policy does not lead to the desired result, the administrative authority must, at the very least, consider the exercise of additional means of enforcement that are in its authority. Refraining from considering additional means of enforcement in such circumstances could amount to a flaw in the authority's conduct which justifies the Court's intervention.

From the General to the Specific

Section 2(a) of the By-Law provides a categorical determination. The language of the section is that "Subject to that stated in sub-Sections (c), (d) and (e) the owner of a store or a coffee shop shall not open its business nor keep it open on the Sabbath and Israel holidays other than with a special permit of the council, as stated in sub-Section (b)" (emphases added M.N.). In the case at hand, there is no doubt that the Respondents are violating the By-Law. As such, in principle, the Municipality must act so that these businesses shall be closed on the day of rest. This matter does not stem from a "religious" or "secular" perspective. It stems from the perspective that the law, including the By-Law, must be upheld.

The Municipality indeed applies means of enforcement and the Respondents are fined each and every week. However, it appears that it is evident that in fact, the Municipality is not, to the proper extent, realizing - through the means of enforcement it chose – the objective of the law. As achieving the objective of the By-Law, in light of the social and religious values of the day of rest, would mean that the businesses would indeed be closed on the day of rest and not that businesses that wish to open their doors on the Sabbath can do so provided they are willing to pay the fine involved. While in fact, despite the fines the Municipality is imposing, the doors of the Respondents' businesses remain open each Sabbath. Therefore, in the case before us, the Municipality is not, by means of the existing manner of enforcement, realizing the law. Owners of small businesses, such as the Appellants and their like, indeed do not open their businesses on the day of rest, but the objective of the law is not at all achieved vis-à-vis the businesses that are part of large retails chains, for whom, in light of their economic resilience and their daily profits each Sabbath, it is worth their while to consistently open their doors on the day of rest, notwithstanding the fine they have to pay therefor. It emerges that these businesses, with their many branches spread all across the city, together with additional grocery stores and supermarkets which are open on the day of rest which do not belong to a given chain store, constitute a significant share of the retail activity in the city of Tel Aviv-Jaffa.

By enforcing only by means of the impositions of fines, the Municipality in fact enables, or at least turns a blind eye from, the continuous violation of the By-Law by such group. The situation which results from this enforcement activity is that the Respondents gain profits from an additional business day on the weekend, the Municipality's treasury benefits from significant amounts due to the fines it imposes upon the Respondents each week (the fine is paid to the local authority's treasury pursuant to Section 229A of the Criminal Procedure Law [Consolidated Version], 5742-1982), but the rule of law – which requires obeying the provisions of the law – is compromised. As specified above, an enforcement policy which in effect does not achieve the objective of the law is problematic (see: The Administrative Authority A, on page 136). As acting President Zilberg stated in HCJ 295/65 Oppenheimer v. The Minister of Interior and Health, IsrSC 20(1) 309 (1966) (in paragraph 9 of his judgment): "Refraining from exercising and realizing an existing and binding law, is not a policy and cannot be a policy, in any respect whatsoever; it only results in demoralization in the relationship between government and citizen, and is followed by insubordination towards all of the laws of the state" (original emphasis – M.N.). The difficulty is enhanced when it is impossible to ignore the concern that it is convenient for the Municipality – in light of the economic profits it gains from imposing the fines – not to insist upon the observance of the By-Law (see and compare to the words of Justice Cheshin in HCJ 4140/95 Superpharm (Israel) Ltd. v. Director of Customs and VAT, IsrSC 54(1) 49, 103-105 (1999); Administrative Law A, in Section 1.14).

If the nature of the city of Tel Aviv-Jaffa requires, in the opinion of its leaders who represent the population, not to close businesses such as those of the Respondents, on the Sabbath, the By-Law can be changed through the manner prescribed in the law. However, as long as the By-Law has not been changed, the point of departure is that it is to be upheld. The Attorney General stated that the Municipality is authorized to strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest […] and making certain economic activity possible". However, in my opinion, the appropriate place for striking such a balance is in a Municipality decision whether to promulgate a by-law regarding the activity of businesses on the Sabbath and formulating the arrangements prescribed therein. This is what the Municipality did when it promulgated the By-Law, which includes a prohibition to open on the Sabbath, as well as exceptions to the prohibition. The Municipality chose not to include businesses such as the Respondents' businesses as exceptions to the prohibition.

Additionally, prima facie, if the Municipality's position is that there is no longer justification for the By-Law as it currently exists, then the use of fines as the means of enforcement is not the proper response. If the Municipality is of the opinion that, in light of the unique character of the city of Tel Aviv-Jaffa, opening stores on the day of rest should be allowed – there is no justification to obligate the owners of the stores to pay fines to operate businesses on the Sabbath. If, in the Municipality's opinion, there is nothing wrong with the Respondents' actions, what is the justification for them having to pay a fine? If, on the other hand, there is a justification for closing the stores on the day of rest, it is necessary to consider using additional means of enforcement, and first of all, the above mentioned Section 264A, since enforcement only by means of imposing fines is not achieving the purpose of the By-Law.

I accept the lower court's approach that the Municipality's authority to request a Prohibition to Open Order, under Section 264A of the Municipalities Ordinance, is a discretionary authority. The Municipality is not required to exercise this authority in each and every case of violation of a by-law, however it must consider if and how to exercise the variety of means of enforcement it has in its "toolbox" (see for example: the Shekem Case, paragraph 8; The Administrative Authority B, pages 1087-1088). The lower court ruled that "In order for the Court to intervene in the level of enforcement of one law or another, the competent authorities must completely absolve themselves from their duty to enforce the law, or when the enforcement is selective and deriving from irrelevant considerations" (paragraph 34 of the judgment), and reached the conclusion that in the case before us there is no justification to intervene in the manner in which the Municipality is enforcing the law.

I cannot agree with the lower court's conclusion. Even if the Court must take caution not to interfere in the balance of considerations struck by the authority, the principle of respecting the authorities and the limited judicial review which the Court exercises cannot exempt the Municipality from the mere duty to exercise its discretion (see: the Regavim 2 Case, in paragraph 7; Administrative Law A, Section 6.1; The Administrative Authority B, pages 1079-1080, 1087-1089). When the Municipality possesses authority to request a Prohibition to Open Order, pursuant to Section 264A of the Municipalities Ordinance, it has the duty to examine from time to time if it is necessary to exercise such authority, as well as additional authorities, to the extent such are in its possession. The continuous nature of this duty has utmost significant when the means of enforcement the Municipality chose to take, do not bear fruit (see: the Besserglick Case, paragraph 14 of Justice Rubenstein's judgment).

As I mentioned at the outset, the Municipality's attorney agreed to view the proceeding as though a statement of response had been filed. Therefore, the burden to demonstrate that the Municipality considered all of the possible means of enforcement to enforce the By-Law and that it fulfilled its duty to exercise discretion in doing so, imposed on the Municipality. However, the Municipality did not do so. The Municipality did not at all demonstrate that it examined and considered – with an open heart and willful soul - the merits of the need and the possibility of filing a motion for a Prohibition to Open Order or that there was any decision and exercise of discretion in this matter. The Municipality did not even argue that there is a general policy, which derives from actual exercise of discretion, pursuant to which the sanction prescribed in Section 264A of the Ordinance, should not be exercised. As I have clarified, there is no knowledge at all of the adoption of any "decision" not to exercise the authority prescribed in Section 264A. The Municipality did not demonstrate that this matter was considered and what the considerations were. Thus, I did not find in the Municipalities' arguments any basis to the lower court's determination that "[…] the exercise of the authority [to request that the Court grant a Prohibition to Open Order – M.N.] is subject to discretion, which it was decided would not be exercised, in accordance with the general policy which derives from the population's needs and desires" (paragraph 6 of the judgment). From the material before us it emerges that the Municipality chose to impose fines on Respondents 2-6, but it does not emerge that it even considered the possibility of approaching the Municipal Court in their matter and requesting a Prohibition to Open Order. Not considering the possibility of filing a motion for a Prohibition to Open Order nor examining any other option so as to achieve – to a reasonable and proportional degree considering all of the considerations - the proper enforcement of the By-Law, constitute a violation of the Municipality's duty to take action and exercise discretion. In these circumstances, the Municipality violated its duty to exercise discretion from time to time, and in doing so, its conduct was flawed in a manner justifying our intervention, in the sense that we shall obligate the Municipality to consider what it did not consider.

Epilogue

If my opinion shall be heard, the Appeal shall be accepted. The judgment of the first instance shall be cancelled and the matter shall be returned to the Municipality so that it shall exercise its discretion and adopt a decision on the merits of the manner of exercising the authorities vested therein by Section 264A of the Municipalities Ordinance or any authority in addition to its authority to impose fines. The Municipality shall examine its position regarding the enforcement of the By-Law within 60 days from the date the judgment is granted. The decision to be adopted in this matter shall be delivered to the Appellants' attorney and, of course, is subject to additional judicial review.

The expenses imposed upon the Appellants in the first instance shall be cancelled. There shall be no order for expenses in our instance.

President A. Grunis:

I Agree.

Justice E. Rubinstein:

I join the orderly, methodically arranged judgment of my colleague Deputy President Naor, on each and every element thereof. I wish to add two matters, which I shall list in their reverse order of importance: the conduct of the Municipality as a public entity, and the insult to the Sabbath as a national and religious day of rest for the Jewish people. The combination of the two in the case at hand has produced the contemptible and cheap picture portrayed before us. I shall attempt to view the matter in the context of the objective of the legislation and the nature of the State of Israel as a Jewish and democratic state, and the city of Tel Aviv, the first Hebrew city and the central urban metropolis in our country.

Before us is a municipal by-law, the Tel Aviv-Jaffa By-Law (Opening and Closing of Stores) 5740-1980, pursuant to which the opening and closing of stores on the days of rest is prohibited. As my colleague wrote (paragraph 50) "… the objective of the By-Law, in light of the social and religious values of the day of rest, in light of the social and religious values of the day of rest, would mean that the businesses would indeed be closed on the day of rest and not that businesses that wish to open their doors on the Sabbath can do so provided they are willing to pay the fine involved."

The Municipality interprets its duty to enforce the By-Law in a manner which cannot be described as other than completely emptying it of any content (unless we see a public value in NIS 2,640 per month – 660 multiplied by four – which are collected as fines from the supermarket chain stores), and dares to call this enforcement. Indeed, the matter is presented before us in the appeal of small merchants who cannot hire revolving staff as the supermarkets can and are entitled to a day of rest (it should be assumed that generally they work six days and they are not the ones who actually benefit from five working days) and they do as their fathers and forefathers did: they rest on the Sabbath. But at such time their secular customers, who wish to buy on the Sabbath, run to the open supermarket, from which the Municipality collects the "The Sabbath Tax" (heaven forbid) in the form of a weekly fine while the Municipality congratulates itself on the alleged maintenance of the By-Law. For the supermarkets this is a fraction of their income, like a light ripple on the surface of the water, almost a "bad debt" (one must assume and hope that they cannot deduct it as a tax expense to the tax authorities), and the supermarket is relieved, and the Municipality is appeased, and all the while the grocery store's door shall be sealed, and primarily - the Sabbath shall be tainted.

For the Municipality, a public entity of the highest degree, which is meant to serve all of the residents according to the law, this is a solution which – as is customary at times among us – is a Torah sanctioned "Israbluff", a "pretense" as though all of the spectators were fools. What is the Municipality's opinion regarding the significance of an offence which has infinite recidivism? Should the enforcing authority suffice with a fine and marking a "check" and just continue doing this, or must it seek another way?

It is clear – as emerges from my colleague's opinion – that in the current situation, the objective of the By-Law is not at achieved in the public arena of Tel Aviv.

Although I wonder whether it is necessary to elaborate regarding the Sabbath, I will say the following. The Sabbath has two contents, religious and national on the one hand and social on the other (see HCJ 5026/09 Design 22 v. Rosenzweig (2005), in paragraphs 16-17 and 20-21 of President Barak's judgment, and in paragraphs 2-3 of Justice Procaccia's opinion, and in the opinion of Justice (as her title was at the time) Naor). Religiously speaking, it is the fourth commandment of the Ten Commandments, the essence of the universal Jewish constitution, no less, in both of their versions: "Remember the Sabbath day to keep it holy" (Exodus 20, 8) and "Keep the Sabbath day to sanctify it, as the Lord your God commanded you." (Deuteronomy 5, 12). The religious content of the Sabbath emerges from the wording of both of these openings of the fourth commandment, but the Ten Commandments also include the social aspect. As emerges conspicuously from the wording in Deuteronomy (5, 13-15): "Six days may you work, and perform all your labor; and the seventh day is a Sabbath to the Lord your God; you shall perform no labor, neither you, your son, your daughter, your manservant, your maidservant, your ox, your donkey, any of your livestock, nor the stranger who is within your cities, in order that your manservant and your maidservant may rest like you; And you shall remember that you were a slave in the land of Egypt, and that the Lord your God took you out from there with a strong hand and with an outstretched arm; therefore, the Lord, your God, commanded you to observe the Sabbath day." There really is no need to elaborate. The Torah has done so better that I. This is the social content of the Sabbath, rest to all.

The Sabbath as a day of rest to all is a contribution of the highest degree. Our Sages say about the verse "To know that I, the Lord, make you holy." (Exodus 31,13) that "The Lord told unto Moses: Moses, I have a great gift in my treasure house. It is called Shabbat, and I wish to give it to Israel" (Bavli Sabbath, 10, 2). And as philosopher Hermann Cohen (19^th and 20^th century) said (Sefer Hashabbat– which is filled with sources – edited by Dr. Y.L. Baruch (Tenth Printing, 5723, 151)) "From the change of the wording between the first and second commandments… (between Exodus and Deuteronomy) it is undoubtedly clear that the purpose of the Sabbath is to preserve equality among people, not to notice the difference between their social status" – meaning, the expansion of the Sabbath to the human race. On the Jewish level, the renowned Zionist philosopher, Ahad Ha'am (19^th and 20^th centuries) in his essay "The Sabbath and Zionism" wrote against how assimilators were indifferent to the possibility of the cancellation of the Sabbath. Words that became an idiom: "One can say, without exaggeration, that more than Israel kept the Sabbath, the Sabbath kept them", in that it renewed the spiritual life each week. On the universal human level, philosopher Abraham Joshua Heschel (twentieth century) viewed the Sabbath as "A palace in time, and in the kingdom of time each person shall find his own place" (his book "The Sabbath" E. Even Chen translation, 2003, presented in the Gavison – Medan Covenant website). The Chafetz Chaim, Rabbi Yisrael Meir of Radin, in his book, Shem Olam, speaks of the Sabbath as "the center, from which all of the days of the week suckle… like the heart, from which the vitality continues to all of the organs" (Sefer Hashabbat, edited by Y.L. Baruch, 139). See also Aviad Hacohen "Day of Rest in a Jewish and Democratic State" Parashat Hashavua (A. Hacohen and M. Wigoda Editors, and the references there) Exodus 313-320.

I will not refrain from saying that there is a legitimate question regarding the character of the Sabbath in Israel. Many ideas and proposals have been raised, inter alia – for example the Gavison – Medan Covenant from 2003, by Prof. Ruth Gavison of the Hebrew University of Jerusalem and Rabbi Yaacov Medan of the Har Etzion Yeshiva in Alon Shvut (see the Gavison – Medan Covenant, Main Points and Principles, by Yoav Artsieli). Regarding the Sabbath, the covenant suggested (third chapter) – inter alia – that government offices, industrial factories, banks and trade institutions would be closed; however restaurants and entertainment places would not be prohibited from operating, keeping in line with certain frameworks. A limited number of small grocery stores (particularly them!), gas stations and pharmacies would not be prohibited from operating. And restaurants, museums and other entertainment places would be open on the Sabbath. Of course, this is not to be taken as gospel, but they wish to strike a balance, and there were and may be others like them. It is clear that between those who observe the Sabbath according to the religious requirements, who wish to see it observed with all of its religious details and specifications, and those who have a secular approach, there is a broad middle ground begging to be filled with content. But, until an agreed destination is reached, we must deal with the law and the By-Law.

As for the city of Tel Aviv, I am aware of its current image as a "Non-Stop City" with all of the expressions of contemporary culture, and I do not shut my eyes and ears to that. It is also presumed that the "enforcers" of the By-Law on behalf of the Municipality are tuned in to the messages of many of the leaders of the city, and it naturally follows, of a large population in the city, and attempt to reach out to them. However, with all due respect, Tel Aviv is not in another country and it also has communities that are interested in a significant character of the Sabbath and it is bound by the law of the state and by it being a Jewish and democratic state. The balance between both parts of the definition "Jewish" and "democratic" must also be sought in Tel Aviv, but it appears that currently the "democratic" angle is pushing the "Jewish" angle out. As a reminder from the past – without necessarily trying to draw a complete comparison – I shall bring from the words of Tel Aviv's first mayor, Meir Dizengoff, who was not considered "religious" in the sociological sense, at a rally in 1933 regarding public desecration of the Sabbath: "In my opinion, the meeting should not necessarily have been summoned by the Rabbinate, this is not only a question of religion, but a national and public matter. It is forbidden to publicly desecrate the Sabbath. Each and every nation has a tradition of perceptions, faiths, customs, which preserve it. This is the character of a nation, that grants it existence… the city needs a special Jewish signature." (presented in the Sabbath Book (From You To You), Y. Kaplun editor (2010), 410; and in another place Dizengoff reiterated the same words (ibid, from Tel Aviv, by A. Druyanov) "… There is an anticipated risk that our beloved city shall become a merchant and trading city as all of the cities in the east, and there shall be no remnant of the spirit of its founders, whose entire direction was to create a Jewish humanistic cultural center…". Of course, Tel Aviv today is not Tel Aviv of Dizengoff's days, and its world may be more diverse, although even then it was not a "religious" city. However, the State of Israel is a Jewish and democratic state, and the way the Sabbath day is expressed on the city streets, according to the By-Law which is the subject of our discussion, cannot be the imposition of ridiculous fines of NIS 660 per week. It is upsetting that according to the Municipality's position, it is accepted as a given that the realization of the By-Law suffices with "monetary ransom" - Where is the objective and where is the day of rest? As my colleague, the Deputy President, stated, the city council can reexamine the By-Law and if it shall deem fit – it can lawfully change it. In any event, we shall remember that for most people today, Friday is a day off. Would it be unreasonable to concentrate the shopping on Friday, and 'he who is prepared on the eve of the Sabbath shall eat on the Sabbath', and the By-Law will be observed.

The Municipalities (Prohibition to Open Businesses and the Closure thereof on Days of Rest) Bill, 5748-1988, Bills 5748, 134 – which is known as the Authorization Bill – is based on the doubt that was cast in the Court (in CrimC (Jerusalem) 3471/87 The State of Israel v. Kaplan, IsrDC, 5748 26) regarding the authority of local authorities to promulgate a by-law regarding opening businesses on the Sabbath and Israel holidays; as stated: "The purpose of the proposed law is to remove the said doubt and preserve the status quo in the matter being addressed". In presenting the law for a first reading, the Minister of Religious Affairs Z. Hamer (Divrei Haknesset (The Knesset proceedings) 11^th of Adar 5748 - February 29, 1988, page 2070), stated that the law validates the situation existing prior to the judgment which invalidated a by-law prohibiting opening places of entertainment on the Sabbath due to lack of authority. It was noted that the religious consideration receives its validity within the proposed authorization, but it does not compromise justice and equality, since "This law grants central support, as the judicial authority demanded, to the public and communities anywhere to formulate their lives as per their understanding and belief". It was further said (page 2071), that "Anyone concerned about the Jewish character of the State, about bringing Jews together, and about the character of the Sabbath, should support the law". This was followed by an argument between different parties. Eventually, when the law was presented for second and third readings by MK Uriel Lin (chairperson of the Constitution, Law and Justice Committee, it was noted (Divrei Haknesset (the Knesset proceedings) 30^th of Kislev, 5751 December 17, 1990, page 1192) that the law is presented not as the "Authorization Law" but rather as Amendment no. 40 to the Municipalities Ordinance (applicable also to local councils); and it was said that opening and closing of businesses can also be determined based on reasons of religious tradition (page 1193). We can see that the law intended to make it possible – not obligate – to grant content that also has religious context. The result is the addition of Section 249(21) and Section 264(a) (sic.) to the Municipalities Ordinance, which were presented by my colleague, the Deputy President, in paragraphs 28 and 29, which address the permission to exercise the authority of closing businesses on the days of rest "taking religious tradition reasons into consideration" (Section 249(21)), and the possibility to enforce by order (Section 264(a) (sic.)).

Indeed, the amendment in and of itself is mainly grounded in the religious aspect; however the said By-Law from 5740-1980, even preceded Amendment no. 40, and the character of the day of rest may be formulated by consent. It is in any event evident that the legislature and the secondary legislature could not have intended a "pretense", meaning that the secondary legislature would legislate a by-law to be printed in the records – while the enforcer would (in essence) pretend to enforce. The By-Law must be viewed and interpreted in light of all of the backgrounds – the religious, national and social, while striking proper balances (see HCJ 5016/96 Chorev v. The Minister of Transportation, IsrSC 51(4) 1; the above mentioned HCJ 5026/04 Design 22 v. Rosenzweig; and HCJ 953/01 Solodkin v. The Beit Shemesh Municipality (2004) for discussion of the challenges of balancing). " Sabbath comes, rest comes" and not " Sabbath comes, mocking comes ".

In light of all of the above, there is no escaping the result my colleague reached. One should hope that the leaders of the city will succeed in finding an enforcement solution which shall honor the law and the Sabbath, and also be reasonably satisfactory to the fair and rest-supporting residents of Tel Aviv.

It was decided in accordance with the judgment of Deputy President M. Naor.

Given today, 17^th of Tamuz, 5773 (June 25, 2013).

Full opinion:

Bremer v. Tel Aviv-Jaffa Municipality.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/12/690/024/c14/12024690.c14.pdf

Weiss v. Prime Minister

Case/docket number:

HCJ 5167/00

Date Decided:

Thursday, January 25, 2001

Decision Type:

Original

Topics:

Basic Law: The Government

Government

Abstract:

Facts: The Prime Minister resigned, and he and the Ministers of the outgoing government continued to fulfill their duties as prime minister and ministers until the new government was to take office. In this framework the outgoing government continued to conduct political negotiations with the Palestinian Authority with the aim of reaching an agreement before the elections.

Held: The majority opinion was written by President Barak. The petitioners claimed that the outgoing government was not authorized to conduct the political negotiation. They asked the court to direct the government to end the political negotiation until the establishment of a new government following the special elections. The basic issues that were addressed in this case were: what is the scope of the authority and discretion of an outgoing government? Is it permitted to conduct political negotiation and sign an agreement? And what is the scope of judicial review of decisions of the outgoing government?

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

majority opinion

majority opinion

majority opinion

Author

concurrence

Zamir, Itzchak

Author

concurrence

Turkel, Jacob

Author

dissent

Full text of the opinion:

HCJ 5167/00

1 Professor Hillel Weiss, Esq.

2. Moshe Feiglin, Chairman of ‘Zoh Artzeinu’ Organization

1. Prime Minister of Israel

2. Government of Israel

3. Israeli Knesset

HCJ 9607/00

1. Yoram Sheftel, Esq.

2. Doron Beckerman, Esq.

1. Ehud Barak, Prime Minister of Israel

2. Government of Israel

3. Elyakim Rubenstein, Attorney General

HCJ 84/01

1. Akiva Nof

2. Dov Shilansky

3. Dr. Yosef Faber

4. Yehiel Hazan

5. Esther Shternberger

1. Ehud Barak in his Capacity as Prime Minister of Israel

2. Government of Israel

HCJ 86/01

1. Gabi Butbul

2. Yossi Ben Shahar

1. Prime Minister and Minister of Defense – Ehud Barak

2. Government of Israel

3. The Attorney General – Elyakim Rubenstein

HCJ 147/01

1. Yaakov Elias

1. Prime Minister, Ehud Barak

2. Government of Israel

Formal Respondents

1. The Attorney General – Elyakim Rubenstein

2. Professor Daniel Friedman

3. Professor Shimon Shetreet

4. Professor Shlomo Avineri

5. Moshe Negbi, Esq.

The Supreme Court Sitting as the High Court of Justice

[January 25th, 2001]

Before President A. Barak, Vice President S. Levin, Justices T. Or, E. Mazza, I. Zamir, J. Türkel and I. Englard.

Petitions to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

The petitions were denied.

Vice-President S. Levin and Justice Zamir wrote separate opinions supporting the majority conclusion.

Justice Türkel wrote a dissenting opinion.

Basic laws cited;

Basic Law: Jerusalem, the Capital of Israel (Amendment).

Basic Law: the Government

Basic Law: the Knesset

Legislation cited:

Government and Justice Arrangements Law (Revocation of Application of the Law, Judiciary, and Administration) 5759-1999.

Local Authorities (Election of the Head of the Authority and his Deputies and their Term in Office) Law 5735-1975, s. 27a

Transition Law, 5709-1949, s. 1.

Israeli Supreme Court cases cited:

[1] HCJ 5/86 SHAS Party Association of Sephardim Shomrei Torah in the Knesset v. Minister of Religions, IsrSC 40(2)742.

[2] HCJ 4676/96 Mitral Ltd. v. Knesset of Israel, IsrSC 50(5) 15.

[3] HCJ 5621/96 Herman – Head of the Municipality Ofakim v. the Minister of Religious Affairs, IsrSC 51(5) 791.

[4] HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel and Others IsrSC 51(3) 46.

[5] HCJ 2534/97, 2535/97, 2541/97 MK Yahav and Others v. State Attorney and Others IsrSC 51(3) 1.

[6] PPA 7440/97 PPA 6172/97 State of Israel v. Golan IsrSC 52(1)1

[7] HCJ 4354/92 Temple Mount Faithful v. Prime Minister IsrSC 57 (1)37.

[8] HCJ 6057/99 MMT Mateh Mutkafei Terror v. Prime Minister (unreported).

[9] HCJ 7307/98 Polack v. Government of Israel (unreported).

[10] HCJ 2455/94 ‘Betzedek’ Organization v. Government of Israel (unreported).

[11] HCJ 4877/93 Irgun Nifgai Terror v. Government of Israel (unreported).

[12] HCJ 3125/98 Abed Elaziz Muhammad Iyad v. IDF commander in Judea and Samaria (not yet reported).

[13] HCJ 6924/00 Shtenger v. Prime Minister (not yet reported).

Israeli books cited:

[14] A. Rubinstein, Constitutional Law in Israel 536 (vol. 2. 4th Expanded Edition, 1991).

[15] Y. H. Klinghoffer Selected Material in Matters of the Day 1970-1979, 64, at 71 (1979).

[16] A. Rubenstein and B. Medinah, Constitutional Law of the State of Israel, 91 (vol. A. 5th edition (1996).

Israeli articles cited:

[17] Klein, ‘The Powers of the Caretaker Government: Are they Really Unlimited?’ 12 Isr. L. Rev. 271 (1977).

[18] Shetreet ‘Custom in Public Law’ Klinghoffer Book on Public Law (edited by I. Zamir) 375 (1993

[19] Shetreet, ‘The Knesset’s Role in Signing Treaties’ Hapraklit 36 at 349 [19] S. Shetreet

Foreign books cited:

[20] T. Maunz, G. Drig Kommentar zum Grundgesetz (Mnchen).

[21] J. Esensee, P. Kirchhof Handbuch des Staatsrechts (Heidelberg, Bd. II, 1987).

[22] G. Burdeau, F. Hamon, M. Troper Droit Constitutionnel (Paris, 26טme ed., 1999).

Foreign articles cited:

[23] Boston, Levine, McLeay, Roberts and Schmidt, ‘Caretaker Government and the Evolution of Caretaker Convention in New Zealand’, 28 VUWLR 629 (1998).

Jewish law sources cited:

[24] Proverbs 28:14

HCJ 5167/00

For petitioners – Dr. Chaim Misgav.; Howard Griff.

For respondent – Osnat Mendel.

HCJ 9607/00

For petitioners – Yoram Sheftel

For respondent–Osnat Mendel

HCJ 84/01

For petitioners – Akiva Nof

For respondent – Osnat Mendel

HCJ 86/01

For petitioners – Shmuel Lavi; Ran Shalish; Eiran Tzur

For respondent – Osnat Mendel

HCJ 147/01

For petitioners – Himself

For respondent – Osnat Mendel

For formal respondent no. 3 – Professor Shimon Shetreet

JUDGMENT

President Barak

The Prime Minister resigned. He and the Ministers of the outgoing government continue to fulfill their duties until the prime minister and ministers of the new government take office. In this framework the outgoing government is conducting negotiations for a political arrangement with the Palestinian Authority, with the aim of signing an agreement before the elections. What is the scope of the authority and what is breadth of the discretion of the outgoing government? Is it permitted to conduct the political negotiation and sign the agreement? What is the scope of the judicial review of the decisions of the outgoing government? These are the basic issues that have arisen before us in these petitions. These are weighty questions. In the normal course of events significant time is required for a judgment on such issues. Such significant amount of time is not at our disposal, as the passage of time will undermine the rationale at the foundation of the petitions. We have done all that we could to hear the petitioners arguments and to respond to them as speedily as possible. We now present our judgment. We have in all likelihood been brief where it would have been proper to expand. We have tried to do the maximum possible in the brief time that was at our disposal.

The petitions and the responses to them

1. The Government of Israel has been conducting negotiations for many months with the Palestinian Authority. The Attorney General has explained the characterization of this negotiation in a memo (dated December 12, 2000) which was given to the Prime Minister:

‘The agreement that is now being negotiated is different from all of its predecessors ever, in every direction, as to its challenge and risks. The challenge is ending the difficult conflict between Israel and the Palestinians, which all desire; the risk is the surgical operation, difficult beyond all difficulty, which the agreement demands.’

The negotiation and its content are a subject of sharp debate in Israel. Against this background – and against the background of other internal matters – the Prime Minister, Mr. Ehud Barak, resigned from his position as Prime Minister (in effect as of December 12, 2000). Special elections for Prime Minister were set for June 2, 2001. The political negotiation with the Palestinian Authority continues to be conducted even after the resignation of the Prime Minister. Against this background the petitions before us were submitted. The petitioners are citizens who claim that the outgoing government is not authorized to conduct the political negotiation it is conducting. They request that we direct the government to stop the political negotiation until the establishment of a new government after the special elections.

At the foundation of these petitions is the viewpoint that the outgoing government is a ‘transitional government’ whose authority is qualified, in the sense that it is entitled to deal only with ongoing matters. This qualification, according to the petitioners claim, stems from the interpretation of the Basic Law: The Government and constitutional custom. So too, this qualification is derived from the principle of reasonableness. In these contexts the Government and Justice Arrangements Law (Revocation of Application of the Law, Judiciary, and Administration) 5759-1999 and the Basic Law: Jerusalem the Capital of Israel (Amendment), which require, as said in them, Knesset decisions for any territorial changes, were mentioned. The outgoing government does not have a majority in the Knesset, and therefore could not fulfill these requirements. Even this narrows the authority of the outgoing government. This is primarily so, when the supervision by the Knesset – which is in recess – of the activities of the government, is not being implemented in actuality.

2. In its response (from January 4, 2001) the Attorney General notes that the constitutional principle is of ‘continuity of government’. The interpretation of the Basic Law: the Government does not lead to the application of limits on the authority of the outgoing government. There is no basis to the claim as to the existence of a constitutional custom which limits the authority of such a government. However, exercise of powers during a period of elections requires great caution. The attorney general further added and noted that any agreement that would be reached, if it is reached, requires Knesset approval. Every government decision, according to which the law, judiciary, and administration of the State of Israel will no longer apply on an area where it applies today, requires Knesset approval with a majority vote. Every decision as to the transfer of powers in the area of Jerusalem to a foreign entity requires a basic law which is to be passed by a majority vote. In a supplementary response (from January 17, 2001) – which followed questions we asked during the course of the petitions – the attorney general added that ‘the measure of caution is not a new legal standard, just like reasonableness or proportionality’. In the opinion of the attorney general, ‘a determination on the question whether the government undertook proper caution is found . . . in the public-parliamentary realm’. The attorney general further added in response to our questions that ‘if an agreement is signed by the Prime Minister, in outline, or in another manner, its validation will be conditioned on the approval of the Government, and the required internal approvals, and this will be stated in the agreement itself. As is common as to such agreements, this agreement will also be brought for Knesset approval.’

The normative framework

3. With the resignation of the Prime Minister ‘special elections will be held’ (section 23(c) of the Basic Law: the Government). What are the powers of the Prime Minister and the ministers upon the resignation of the Prime Minister and approaching the special elections? Sections 31 and 32 of the Basic Law: Government address this:

‘Continued Functioning of the Prime Minister and Ministers

31(a) A Prime Minister who has resigned or in whom the Knesset expressed no confidence will continue in office until the newly elected Prime Minister assumes office.

(b) In the event of the Prime Minister’s death, permanent incapacitation, resignation, removal from office, or an expression of no confidence by the Knesset, the Ministers will continue in office until the newly-elected Prime Minister assumes office.

Continuity of Government

32. During the election period for the Knesset and the Prime Minister or during special elections, the Prime Minister and the ministers of the outgoing Knesset will continue in office until the Prime Minister and the ministers of the new Government assume office.’

Thus, the Basic Law: the Government establishes the principle of government continuity (section 32) ‘governments rise and fall, but the government forever stands.’(HCJ 5/86 SHAS Party Association of Sephardim Shomrei Torah in the Knesset v. Minister of Religions [1] at p. 751; and compare: section 37 of the Basic Law: the Knesset and HCJ 4676/96 Mitral Ltd. v. Knesset of Israel [2]). The resigning Prime Minister continues in office until the newly elected prime minister assumes office. Upon his resignation, the ministers continue in office until the newly elected prime minister assumes office (section 31). At the foundation of this provision is the approach that with the resignation of the Prime Minister a governmental ‘void’ is not created, and the government continues to function which serves as the executive branch. The continuity and the stability are thereby ensured. And note: the act of resignation of the Prime Minister, restores, in fact, the confidence that was given him, to the decision of the people, who are sovereign. In this situation, he indeed continues to serve in office by authority of section 31 of the basic law, when the basis for his continuation in office is in the law’s provision. This is so, until the newly elected prime minister, who won the public’s confidence in the special elections, assumes office.

4. Indeed, in the case before us the Prime Minister has resigned. He and the members of his cabinet continue to serve in office, by authority of section 31 (and 32) of the Basic Law: the Government. Is there a formal limitation on their authority? The answer is in the negative. There is nothing in the Basic Law: the Government which narrows the formal authority of the resigning prime minister and the formal authority of the ministers, to ongoing activities only. Justice M. Cheshin expressed this approach when noting:

‘The world-of-law acts according to its way and the powers of operation exist, whether in the days between one election and another and whether during the days of the election. The authority of the government stands every day of the year and from year to year, so too regarding the powers of members of the cabinet.’ (HCJ 5621/96 Herman – Head of the Municipality Ofakim v. the Minister of Religious Affairs [3] at p. 804.)

5. The petitioners have argued before us that indeed there is a limitation on the authority of the outgoing Prime Minister and government who continue in office after the special elections. This limitation limits the bounds of authority of the government only to the government’s ‘ongoing operations’, and not to determination of matters of principle with far-reaching ramifications. Indeed, the claim of ‘ongoing’ operations of the government (expedition des affaires courantes) is not an innovation of the petitioners. This approach is common in a number of countries which have a parliamentary regime (see Klein, ‘The Powers of the Caretaker Government: Are They Really Unlimited?’[17]; Boston, Levine, McLeay, Roberts and Schmidt, ‘Caretaker Government and the Evolution of Caretaker Convention in New Zealand’ [23]. This approach was examined in Israel by a public committee (Justice Z. Berinson (Chairperson), S.Z. Abramov, Dr. A. Ankorin, Professor B. Aktzin, Professor Y. Dror, Y. Zamir, and Dr. A. Yadin). This committee dealt with the scope of powers of a ‘transitional government’ (according to the prior Basic Law: the Government). It examined the adoption of the ‘law of ongoing operations’ and decided not to adopt it. In the committee’s report it was written:

‘The Committee weighed the question whether the powers of a transitional government are to be limited in any way. Such as: limitation of powers to ongoing matters or matters that cannot stand delay (similar to the law of ongoing matters which is accepted in France, Italy and Belgium and other European countries) or limiting its operations in specific areas, subject to Knesset approval, or limiting its power to present draft laws in fundamental matters that are in dispute. The Committee decided for reasons of practicality and in light of the special circumstances of the State, that reducing the functional areas in which a transitional government will be permitted to operate will cause too drastic a change from a regular government to a transitional government, will damage the proper functioning of the government and may damage vital activity of state institutions in the case of a sudden crisis. Abstract formulations such as ‘ongoing matters’ cannot promise the degree of certainty needed for proper constitutional functioning. In light of these rationales the Committee did not even see fit to recommend determining a period of time after which the transitional government would be limited in its powers or to recommend distinctions as to limitation of powers between different types of transitional governments’ (‘Report of the Committee on the Matter of Transitional Government’, p. 6)

In relating to cases in which the government left office under the prior Basic Law: the Government, Professor Rubinstein writes:

‘In all of these cases the outgoing government continues in it duties as usual. Section 25 of the Basic Law establishes that the President will begin the processes to put together a new government but ‘the outgoing government will continue to fulfill its functions until the new government is established’. The law does not determine a time frame for such a government which does not have the Knesset’s confidence. In popular language such a government is called a ‘transitional government’ and this term indeed is fitting to describe the interim situation between one government and another. In terms of its powers and role a transitional government is no different from a regular government which has the Knesset’s confidence. An attempt has been made to give limited meaning to the term ‘will continue in its functions’, but it has failed. A similar arrangement is practiced in England, where the resigning government stays in office during the period of elections until establishment of the new government after the elections, however, there the period of transition is shorter.’ (A. Rubinstein, Constitutional Law in Israel [14] 536).

In relating to the continental doctrine as to the power of an outgoing government to deal only with ongoing matters, Professor Klinghoffer has noted that in Israel ‘transitional governments have always seen themselves as permitted to exercise the full powers of a regular government, this position did not contradict explicit provisions in the written law’ (Y. H. Klinghoffer, Selected Material in Matters of the Day [15] at 71. In relating to the nature of the continental doctrine as to ongoing powers of a transitional government, Professor Klinghoffer noted that: ‘there is much doubt if abstract formulas such as these, founded on the term ‘ongoing matters’ can ensure the degree of certainty needed for sound constitutional life’ (Ibid, p. 71).

6. Moreover: with the establishment of the Basic Law: the Government the Knesset decided to continue with the accepted practice, and refrained from making a formal change in the powers of the outgoing government. Against this background we are of the opinion that it not proper now, by way of construction, to bring in to Israel the continental doctrine as to limitation of the powers of the outgoing government (as to a similar approach in Germany see Herzog, Maunz-Durig, Grundgesetz Kommentar, Art 69 III 46, 60 [20]; Schroeder, Handbuch des Staatsrechts, 43 (Band II, par. 51) [21]). Of course the Knesset as an establishing authority may, after examining the issue as to all of its aspects, limit the powers of the outgoing government, if it sees fit (compare section 29(b) of the Basic Law: the Government as to the voiding of the powers of the acting prime minister to disperse the Knesset; compare also section 27a of the Local Authorities (Election of the Head of the Authority and his Deputies and their Term in Office) Law 5735-1975). On this matter various ideas have been proposed for legislation, such as subjecting the government – which no longer has the confidence of the Knesset – to Knesset decisions (see Klein, Ibid, [17] p. 285; Rubenstein, Ibid, [14] p. 502; Klinghoffer, Ibid, [15] p. 71).

7. It has been argued before us that there is a constitutional custom, according to which the outgoing government is limited to ongoing operations (‘maintenance’ operations) alone. So too it was argued, that there is a constitutional custom, according to which international treaties of special importance that Israel is party to require Knesset ratification. This constitutional custom, so it was argued, is not limited only to retroactive ratification by the Knesset but requires advance consent of the Knesset before the government signs them. We cannot accept these arguments. The question of the validity of constitutional custom in Israel has yet to be examined by this court. For myself, I am prepared to presume, without making a judicial determination on the matter, that constitutional custom is a legal source for creating binding constitutional law in Israel (See Shetreet ‘Custom in Public Law’ Klinghoffer Book on Public Law [18] 375; A. Rubenstein and B. Medinah, Constitutional Law of the State of Israel [16] at pp. 95-96. It will suffice for me to say, for purposes of the matter before us, that it has not been proven to us, in the accepted manner for the proving of (constitutional) customs, the existence of a constitutional custom according to which the outgoing government has only ongoing powers (or ‘maintenance’ powers). As to the ratification of international treaties of special importance, the government accepts (as per the Attorney General before us) that any agreement that will be made in this matter will be brought before the Knesset for ratification (see also Shetreet, ‘the Knesset’s Role in Signing Treaties’ [19] at 349; Rubinstein, Ibid, Ibid [16]). The existence of a constitutional custom by which the consent of the Knesset must be given in advance, has not been proven to us.

8. From the above it can be seen that constitutional law in Israel does not recognize a special doctrine according to which with the resignation of the prime minister, his powers and the powers of the ministers – and for our matter we can say, the powers of the outgoing government – are limited to ongoing operations (‘maintenance’ operations) alone. However, the outgoing government, like every government in Israel, must act with reasonableness and proportionality, when the difference between it and a regular government is expressed in the scope of the coverage of the test of reasonableness. Indeed, the principles of reasonableness and proportionality are general legal principles, which apply to the activities of every government, including an outgoing government. The ‘range of reasonableness’ which determines the range of operations beyond which the action of the government is not reasonable, also applies to the operations of an outgoing government. As is known, an outgoing government can be created in various forms (such as the resignation of the prime minister, expression of no-confidence in the prime minister by the Knesset, dispersal of the Knesset by the prime minister with the consent of the president, dissolution of the Knesset, and even a regular situation of a government that operates after timely elections). We are dealing in the petitions before us with one of the forms of an outgoing government, which is, resignation of the prime minister. The rest of the judgment is aimed at these circumstances.

9. What do principles of reasonableness and proportionality tell us about the activities of an outgoing government where the prime minister resigns? In answering this question we must return to the purpose at the core of the continuation in office of the prime minister and the ministers, despite the resignation of the prime minister. This purpose is twofold: on the one hand it is intended to prevent a governmental ‘void’ and ensure stability and continuity. On the other hand, the special status of the outgoing prime minister is to be taken into account, where ostensibly upon his resignation his role was meant to end, but he continues to fill it until the chosen prime minister enters office, and this by power of the provision of the basic law itself (compare Klein, Ibid [16] at p. 276). Against the background of this double purpose the following conclusion arises: the prime minister who resigned and the ministers of his government must act out of awareness of this purpose. On the one hand, they must act with restraint appropriate for the status of an outgoing government. On the other hand they must ensure stability and continuity. The duty of restraint does not exist where there is a vital public need to act. It is self-evident that where such a vital need exists, it must be realized, in appropriate measure. It is a matter, thus, of a flexible approach that balances between restraint and action, according to the circumstances of the case and taking into consideration the changing reality. The question that the principles of reasonableness and proportionality pose is whether the action is ongoing or exceptional. The correct question is, whether in the overall balance – which takes the totality of circumstances into account – restraint or action is required.

10. Every entity operating by the law has a ‘range of reasonableness’ which reflects the range of legal actions which that entity may undertake. The scope of the range as to the given matter is dependent on the characteristics of the power. Justice Zamir writes:

‘The question as to whether an administrative decision suffers from extreme lack of reasonableness is dependent on the limits of the range of reasonableness, which is the range in which the administrative authority may decide according to its discretion: what is the language and the purpose of the authorizing statute; who is the authorizing entity; what is the matter administered by the authority; whether the authority is operated primarily on the basis of factual findings, on the basis of policy considerations, or on the basis of professional criteria, such as: medical or engineers criteria; and the like. The range of reasonableness changes in accordance with these characteristics: at times it is broad and at times narrow’ (HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel and Others [4] at p. 57).

Justice Or wrote in a similar vein:

‘The range of reasonableness draws the area in which the authority’s decision will be reasonable, in the sense that there are no grounds to intervene in the decision. But the range of deployment of this range is not uniform. It may change in accordance with the circumstances of a given case. It is derived from the quality of the operating values in a given matter.’ (HCJ 2534/97, 2535/97, 2541/97 MK Yahav and Others v. State Attorney and Others [5] at p. 58).

Against this background the conclusion is to be drawn that as to given matters the range of reasonableness of the prime minister who has resigned and the members of his cabinet is narrower than the range of reasonableness of a prime minister and government who are operating normally. The reason for this is that the prime minister on the one hand and the outgoing government on the other must take into account the special criterion – a criterion that the government normally does not have to take into account – and that is the purpose and the source of its authority. Moreover: the ‘range’ of reasonableness of such prime minister and government changes as the date of ending the time in office of the elected prime minister nears. Therefore, the ‘range’ becomes narrower – and the need for restraint and reserve made more necessary – after the elections, and before the elected prime minister begins his term in office, and all subject to vital public needs? Thus, for example, as a rule, it is appropriate in the framework of domestic policy, that the outgoing prime minister and the members of his cabinet not make appointments to senior positions, and leave the work of appointments to the elected prime minister and his government, unless, under the circumstances, the demands of the position create a vital public need to man the position without waiting for the beginning of the term of the elected prime minister, or where it is a matter of a professional appointment when there is not sufficient reason to postpone the appointment. The same is true in the management of foreign policy or defense. No one would think that the outgoing prime minister and his government cannot protect state security from a war that broke out just because the days are the final days of an outgoing government. Defense of the State from war, certainly raises a vital public need, that every prime minister, including an outgoing prime minister must deal with.

Judicial review

11. What is the scope of the judicial review of the decisions of the resigning prime minister and his ministers? The answer is that such a government does not enjoy a special status as to judicial review. Every government is subject to judicial review, and a prime minister who resigns and the ministers of his government do not have immunity from judicial review. Therefore the court will ask itself – in the framework of the judicial review of the reasonableness of the decision and the proportionality of government decisions – whether the decision of the government is a decision which a reasonable government may make. The court will not ask itself which decision it would have made if it was operating as the government. This criterion also applies, of course, as to the review of the actions of a prime minister who resigned and the ministers of his government. The court will ask himself if the balance the prime minister and his ministers made between the need for restraint and the need for action, is a balance a reasonable outgoing prime minister is permitted to make (compare Burdeau Hamon, Troper Droit Constitutionnel [22] at 633-634). The court will not ask itself what the balance is that it would have made were it acting as a prime minister who has resigned.

12. The scope of the judicial review will be influenced by the scope of the administrative power. Although the grounds for review do not change, the scope of the power determines the limits of judicial review. Justice Zamir explained this when he noted:

‘The essence of administrative power also impacts the scope of judicial review. Indeed, the rules of review do not change from power to power: every power must be used in order to serve the purpose of the law, on the basis of relevant considerations, in a reasonable manner and to the extent necessary, however the content of the rules changes from power to power. And not only do the purpose of the law and relevant considerations change according to the essence of the power, broad or narrow. The essence of the power to manage a prison, because it is so complex, requires the court to act with great care, so that it does not narrow the range of reasonableness of the Prison Services in a manner that will prevent orderly administration of the prison.’ (PPA 7440/97 (PPA 6172/97 State of Israel v. Golan [6] at p. 8).

If this is the case for the administration of a prison, all the more so as to fundamental questions of policy. Thus, for example, the court will not direct the prime minister and the members of his cabinet whether to undertake a policy of privatization or a policy of nationalization. In the framework of the power of government, it is a matter for the prime minister and his ministers, and not the court, to decide. The Knesset oversees the prime minister and his ministers and review of the policy of a government operating within the range of reasonableness is in the hands of the Knesset. This is so as to a regular prime minister and government; and it is so as to a prime minister who resigned and the ministers of his government.

From the general to the specific

13. The government is the executive branch of the State (section 1 of the Basic Law: the Government). Based on this power and additional powers given to it (see, for example, sections 40 and 41 of the Basic Law: the Government) it is empowered to administer the foreign and defense policies of the State. The power of the one holding the power (the government) and the essence of the matter (foreign and defense affairs; peace or war) lead to the government having a broad range of reasonableness in these type of matters. Within the bounds of that range the court will not replace its discretion with that of the government. Supervision of the utilization of the powers of the government in these matters is in the hands of the Knesset. Therefore, were these petitions filed prior to the resignation of the Prime Minister, we would more than likely have dismissed them. One government has one policy. Another government another policy. Each is in the hands of the government. The choice between the policy paths is a matter for the government and the supervision of the policy is purely a matter for the Knesset. The choice within the bounds of the range of reasonableness is not to be made by the court. Indeed, in a long line of decisions, we dismissed petitions which dealt with the government’s policy for resolving the Israeli-Arab conflict (HCJ 4354/92 Temple Mount Faithful v. Prime Minister [7] (negotiation with Syria in the matter of the Golan Heights); HCJ 6057/99 MMT Mateh Mutkafei Terror v. Prime Minister [8]; HCJ 7307/98 Polack v. Government of Israel [9]; HCJ 2455/94 ‘Betzedek’ Organization v. Government of Israel (release of hostages in the framework of a political agreement) [9]; HCJ 4877/93 Irgun Nifgai Terror v. Government of Israel [10] (negotiations over the Oslo Accords).

14. Does the conclusion need to be different only because this is an outgoing government? Our answer is in the negative. The choice between the need for restraint (as the petitioners claim) and the need to act (as per the government’s stance) is entirely saturated with considerations of security and peace. The Attorney General (in his supplementary response) rightfully noted that:

‘the negotiators see in it a rare window of opportunity and necessitated by reality at this time. On the other hand, the petitioners raise various concerns lest the negotiation at this time will bring about damage in the future. The arguments come from here and from there, and they are found within the political and parliamentary realm. Determination as to specific arguments, in one direction or another, puts the court in the shoes of those making the political decisions.’

And in the letter of the Attorney General (from December 26, 2000) that was presented before us the Attorney General writes:

‘I am aware of the risks that you describe in the government, in the case that there is no agreement – risks toward neighboring states Egypt and Jordan – who have already made peace, risks toward the total Arab world and the like. These are understood, although there will also be risks if an agreement is obtained which cannot be realized, even if ‘fortunate is the man who is anxious always’ (Proverbs 28:14 [24]), the question is reward versus loss, and that is the leadership’s decision.’

Thus, against the background of these matters, which are brought in the statements of the Attorney General, and according to the material before us, we have not been convinced that in the matter before us negotiation by the outgoing Prime Minister and the members of his cabinet deviates from the range of reasonableness, and that the hand of restraint or of action is supreme. But it is natural that the degree of intervention in a matter such as this will take place in exceptional cases. Beyond this, determination of this question – whose dominant elements are political, and which are found in the center of the social debate in Israel – must take place within the political dialogue in Israel, via the instruments of the Knesset or national vote (HCJ 3125/98 Abed Elaziz Muhammad Iyad v. IDF commander in Judea and Samaria [12]. Indeed in comparative literature, where the constitutional custom is occasionally accepted which limits the powers of the outgoing government, the emphasis is placed on political review of decisions of the outgoing government and not judicial review (see Klein, Ibid [17] p. 285; Boston and others, Ibid [23] p. 641). And note: our approach is not that there is no place for judicial review. Our approach is that in the framework of judicial review, and according to its worldview, it is appropriate in the state of affairs as it is before us, and according to the characteristics of the special questions before us, that the review of the decisions of the outgoing government will take place within the Knesset.

15. It has been argued before us that the Knesset cannot act, and therefore this ‘alternate remedy’ no longer exists. We cannot accept this position. The 15th Knesset continues to serve. It continues its legislative work. It can continue its review of the actions of the outgoing government. It has the necessary tools in its hands. It has been said to us in this context that a draft Basic Law: the Government (Amendment – Qualification to Signing an Agreement) which has not been advanced in the legislative process has been proposed in the Knesset. It is true, from the moment the Prime Minister announced his resignation the effectiveness of the supervision of his actions is weakened, to the extent it is a matter of the ability to bring about special elections. At the same time, although the Prime Minister is elected in direct elections (section 3(b) of the Basic Law: the Government) the parliamentary principle of supervision of the Prime Minister and the government still stands (see HCJ 6924/00 Shtenger v. Prime Minister [13]). Indeed, ‘the Knesset is the parliament of the State’ (section 1 of the Basic Law: the Knesset) and it is its ‘house of legislators’ (section 1 of the Transition Law, 5709-1949). Despite the resignation of the Prime Minister the Knesset has broad power to supervise the Prime Minister and his cabinet. This is so according to the existing law, and this is also possible if the existing law is changed – something that is in the establishment and legislative power of the Knesset. It is found that, it has in its hands, the ability, if it sees fit (and we express no opinion on this), to decide whether the actions of the resigning Prime Minister and the members of his cabinet fit the purpose and the source of power of the outgoing government.

16. Our conclusion is, therefore, that within the bounds of the petitions before us, and in accordance with the totality of the data before us, the review of the balance between the need for restraint and reserve and the need for action is in the hands of the Knesset. This conclusion is based, inter alia, on the declaration of the Attorney General, that if any agreement is signed between the representatives of the outgoing government and the representatives of the Palestinian Authority, it will be established in the agreement itself that a condition for the validity of the agreement in the international arena is that the agreement receive the necessary approvals in accordance with domestic law, including the fact that it will be approved by the government and the Knesset.

The conclusion is that there is no legal basis to grant the petitions therefore they are denied.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice I. Englard

I agree.

Vice-President S. Levin

1. I agree with my hon. colleague that the petitions are to be dismissed, but my path for reaching this conclusion is somewhat different from his.

2. I agree that the outgoing government has not deviated from its formal power in negotiating with the Palestinian Authority and I also agree that it is within the power of the Court in principle to intervene in its action according to the rules of public law; according to these rules the Court may intervene in an act of an outgoing government that deviates significantly and categorically from the accepted area of operation of an outgoing government; indeed the question whether there has been such a deviation may also be subject to debate and on this matter there is a fairly wide range of discretion in which the Court will tend not to intervene. Beyond this range the court may intervene. However, this is not the only factor which may impact the willingness of this court to intervene. Given that the subject of the petition is a matter of sharp public debate, the court may, by power of its discretion, refrain from intervening where the Knesset has the power to explicitly limit the power of the outgoing government to undertake an action which it is not proper to undertake. From the material before us I have not been convinced that the Knesset does not have the power to intervene. It has even done so in the past; were it not for this consideration I would have had to decide whether we have had placed before us a foundation which justifies the determination that the outgoing government deviated significantly and categorically from the range of activity of an outgoing government. If I had found this to be so and were it not for the consideration which is similar to the quasi existence of an alternate remedy, which has moved me to dismiss the petition, I would make the orders nisi absolute; in light of said consideration, which in my view is of determinative weight, it is not necessary for me to express an opinion as to the existence of a factual foundation, as stated.

Justice J. Türkel

1. I agree with the mode of analysis of my hon. colleague President A. Barak. I do not agree with his conclusion: that ‘we have not been convinced that in the matter before us negotiation by the outgoing Prime Minister and the members of his cabinet deviates from the range of reasonableness, and that the hand of restraint or of action is supreme’; and that ‘within the bounds of the petitions before us, and in accordance with the totality of the data before us, the review of the balance between the need for restraint and reserve and the need for action is in the hands of the Knesset’. Due to the time constraints I will explain my position in a summary of a summary.

2. I am of the opinion, generally, that the range of reasonableness of a prime minister that resigned and the ministers of his government is narrower than the range of reasonableness of a prime minister and ministers who serve regularly. Moreover, this range becomes narrower and narrower – and the duty of restraint applicable to them continues to increase – from day to day and from hour to hour with the approach of the end of the term in office of the prime minister. In this I am going – with a slight change in emphasis – in the path of the President. However, in my opinion, the conclusion is also derived from this that the weight of vital public need which is required according to the approach of the President – to which I also agree– in order to justify action by the resigning prime minister and the ministers of his government during the period of transition also continues to increase. In other words, as the date of the conclusion of the term in office of the resigning prime minister approaches it is no longer sufficient that the public need is merely vital, but the public need must be very vital in order for it to cancel out the duty of restraint which is imposed on the resigning prime minister and the ministers of his government during the period of transition. It may be possible to also say that as the days go past the ‘burden of proof’ that the prime minister and the ministers of his government are operating within the range of reasonableness, is transferred to their shoulders. If in the beginning of the term the burden is on those who are challenging their actions to show that there is not a vital public need which justifies doing a specific action, then toward the end of the period the prime minister and the government must show that there is a very vital public need that justifies the action.

3. I have been convinced that political negotiation between the government and the Palestinian Authority in and of itself – not to mention agreements and understandings that may be reached during its course – may tie the hands of the prime minister and the next government if another prime minister is chosen. The special elections for prime minister will take place on February 6, 2001; meaning in another 12 days. The question, which is before us for determination is not whether the negotiation that the government is engaged in with the Palestinian Authority – which is undoubtedly fateful as to the future of the State – is within the range of reasonableness. The question is whether conducting negotiation in the period that is so close to date of the special elections is within the range of reasonableness. As to this matter we are not required to make any determination as to the contents of the negotiation, the desired political arrangement, considerations of security and peace and the like. In my view, the question that is to be determined is whether there still exists a vital public need – and in my view, whether it is a very vital public need – to conduct the negotiation in this time period particularly. The representatives of the government have laid out many and varied reasons as to why the hands of the resigning prime minister and his government ministers are not to be tied, but they have not pointed to a vital public need – and in fact, have not shown any reason – that would justify conducting such an important and fateful negotiation, which in itself may tie the hands of the prime minister that will be elected (if the resigning Prime Minister is not re-elected) and his government ministers. In the absence of such vital public need it is to be determined that continuation of the negotiation in the short time period that is left until the special elections deviates from the range of reasonableness and is to be terminated until the elected prime minister and the ministers of his government start their term in office.

4. Who is meant to hold the sword of review of the policy and the actions of the government?

I also agree that, generally, review of the policy of the government operating within the range of reasonableness and the exercise of its power is placed in the hands of the Knesset. I will add and say that – and this too is in general – it is better for the court to rarely intervene in such matters. However, the matter before us is exceptional and unusual and requires us to move outside the area of the rule.

Indeed, in theory, the Knesset has in its hands the legal tools necessary to realize its power of review; however, I have been convinced that in actuality this is not the case. As has been clarified it has not been possible for 61 members of the Knesset – despite the fact that they are a majority of the Knesset – to advance the legislation of the Draft Basic Law: the Government (Amendment – Qualification to Signing an Agreement), whose purpose is to prevent the progress of the political negotiation. Without expressing an opinion as to the draft law itself and the question whether it was possible to advance it in the period that passed since it was submitted, in fact the draft law is ‘stuck’ in the depths of the Knesset and its committees. Today the Knesset is not capable, for one reason or another, of realizing its power of review.

In this situation and when little time remains, therefore, the sword of review is in the hands of this court alone. It is not entitled to spare itself from the law and withdraw its hands from the decision. It appears that in such a situation the words of our national poet H.N. Bialik are appropriate.

‘And the hour was the hour of mayhem, of mixing of realms

of ending and beginning, of contradiction and building, of age and youth.

And we the children of the interim, knowingly and unknowingly,

bowed and thanked before both authorities at the same time;

hanging in the balance between these two magnets

all the emotions of our indecipherable hearts then asked the prophet;’

[C.N. Bialik ‘To Achad Ha’am’]

The hour has come for the Supreme Court to be the ‘prophet’ and say its word.

5. If my opinion were heard I would grant the petitions in the sense that an order would be given which directs the Prime Minister and the government to refrain from reaching agreements, consents or understandings with the Palestinian Authority, whether in a document or whether by another means, and not to create obligations in any way, in the negotiation currently being conducted, which may tie the hands of the prime minister and the government that will be elected.

Justice I. Zamir

I agree with President Barak that the Basic Law: the Government does not state, neither explicitly nor impliedly, that an outgoing government (which is itself a vague term) is more limited in its powers than a regular government. By law a government is a government, and the law does not create two types of governments, or more. So too, after the prime minister resigns as well. The law grants power to the institution, which is the government, and the change that takes place in the instrument of the institution, which is the prime minister, does not change the powers of the institution itself.

I also agree with President Barak that there is not a constitutional custom in Israel which limits the powers of the outgoing government. A constitutional custom, like any custom, requires proof. No proof has been brought for the existence of such a custom. And the court is not meant to create a custom ex nihilo in a judgment.

Therefore, the question in this case is not a question of power, but a question of discretion. In other words, according to the law the government today has power like the government of yesterday, including the power to conduct political negotiation, but the question is whether the discretion of the government, in conducting such negotiation, was lawfully exercised. Is there a legal defect in the discretion of the government which justifies intervention by the court?

The discretion of the government, like the discretion of every minister in the government and every other authority, is limited and guided by the legal rules, and the court is in charge of the fulfilment of these rules. Inter alia, the government must exercise its powers based on relevant considerations, and not on the basis of foreign considerations, in the framework of the range of reasonableness and in a proportional manner. These rules apply to every government, including an outgoing government, and according to these rules the court is authorized to review decision of every government, including an outgoing government.

These rules do not change from authority to authority or from matter to matter. However the application of the rules may change according to the authority and according to the matter. In accordance with this, the application of the rule of reasonableness, for example, may change when a regular government becomes an outgoing government. In an outgoing government the range of reasonableness may, in certain circumstances, be narrower. As a result, the intervention of the court in the discretion of the outgoing government may be broader. An outgoing government must take into account, daily, that the range of reasonableness which it has in application of its powers may be narrower, and plan its steps accordingly. Thus, for example, in relating to the appointment of public servants to senior positions or in giving benefits that have no other reason except the reason of the upcoming elections. It might be said in the language of President Barak that in certain matters the outgoing government must act with proportional restraint.

This is an important rule. It is innovative, as to date the court has not had the opportunity to state that the range of reasonableness of the outgoing government can be narrower than the range of reasonableness of a regular government. Time will tell where this rule will lead us.

These petitions do not contain the argument that negotiation by the outgoing government with the Palestinian Authority stems from alien considerations, and even if based on the substance of the matter there is no applicability to the test of proportionality. However, the petitioners claim that in conducting the negotiation the government has crossed the boundary of the range of reasonableness. Based on the claim, conducting the negotiation today, by the outgoing government, a short time before the elections is unreasonable to an extreme degree. Therefore the court is asked to rule that conducting the negotiation, although it was considered lawful by all until a short time ago, has become unlawful after the Prime Minister resigned, and to issue an order which prohibits the government from continuing with the negotiation, or at the very least, to declare that the negotiation is not lawful. Is it proper for the court to prevent the negotiation?

Before the court examines the discretion that the government exercises in conducting negotiation, and determines if it is unreasonable and unlawful, the court must exercise its own discretion, and decide if it is appropriate for the court to intervene in such a matter. As is known, this court has discretion, and it is authorized to summarily dismiss a petition, without discussing it substantively, in accordance with certain rules. Thus, inter alia, the court may and also will, according to its discretion, summarily dismiss a petition because of delay in filing or because an alternate remedy exists. So too, in the case in which the petition raises a matter of a purely political nature, of the type of matters that are entrusted, by law, or by substance, in the hands of the government or the Knesset. This case resembles a case where there is an alternate remedy: there are cases in which the alternate remedy is a suit in another court or appeal to a certain tribunal; and there are cases where the alternate remedy is the handling of the matter under discussion in the government or the Knesset, depending on the substance of the matter. In such matter another entity is considered more appropriate and better suited than the court to handle the matter. Foreign relations of the State are, and have always been, a classic example of such a matter. Thus, as far as is known in every court and every state. In Israel, as well, this court has handed down many decisions in which it summarily dismissed petitions because of the political nature of the petitions, and in all of this, many of the petitions dealt with relations between the State of Israel and the Palestinian Authority. And this is not because the court does not have the authority to intervene in such a matter. It has the authority. But the authority is entails discretion. Indeed, the court can exercise its discretion, in a special case, even to intervene in a purely political matter. But in each case the court must exercise its discretion and decide if it is proper, under the circumstances, to intervene in such a matter. Meaning there are two stops on the pathway of the court, in these petitions as in every other petition: at the first stop it must exercise its discretion and decide if it is proper to intervene in the substance of the petition; at the second stop, it must examine the discretion of the government or of another authority, according to the issue. The court must pass the first stop, before it reaches the second stop. In these petitions the court still finds itself, in my opinion, at the first stop.

During the course of the proceedings, the court asked the petitioners if they know of another case in any state, at any time, where a court intervened in political negotiation which was being conducted by a government and prohibited it with an injunction from conducting the negotiation or declared that the negotiation is unlawful. The petitioners’ response was, that they searched, but did not find. I will risk surmising that they have not found it because it does not exist. As far as is known, there was no such case even in the states where there exists a doctrine which establishes that the outgoing government only has the powers of a maintenance government. And why? Because even in those countries it is accepted that the review of the conduct of negotiation by the outgoing government, even where the claim is made that the negotiation is unjustified and even unreasonable, is in the hands of the elected house, or directly in the hands of the public, and not in the hands of the court. In a democracy the court has a very important role, but a limited role and it is not meant or able to solve every mishap and provide salvation for every crisis.

The petitioners ask that the law come out of Zion. And I respond, not this law, as it is not the law of truth. Generally, the court in Israel, like the court in other countries, does not have the capacity to assess whether this negotiation or another is reasonable or whether is crosses the boundaries of the range of reasonableness, and the court is not allowed to take upon itself the responsibility of granting an injunction proscribing the political negotiation. A court injunction, which proscribes or terminates political negotiation, in itself may be unreasonable or irresponsible.

I do not find it necessary to provide a long explanation as to the significance and ramification of the court’s intervention in political negotiation, inter alia, in terms of the status and role of this court in society. Those who need to comprehend, will comprehend. However, in order to explain I will linger briefly on the central claim of the petitioners according to which the very conduct of negotiation by the outgoing government, even without signing an agreement, is unlawful. Why? Because in such negotiation the government presents political positions, such as, willingness to concede on this matter or another, and this can make it more difficult for the next government. However, if this is so, would it be unlawful if the prime minister of the outgoing government publicly declares, without negotiation, for example, during the election campaign, that the government is willing to make certain concessions? Such a declaration, to the whole world, may also make it more difficult for the next government, just like presenting a position in the framework of political negotiation. Is it proper therefore, for the court to issue an order which prohibits the prime minister of the outgoing government from presenting his policy before the broad public? The court too has a range of reasonableness.

In conclusion, these petitions deal with political negotiation, of a purely political nature, which divides the public in a sharp debate. Whether it is appropriate to conduct such a negotiation or not, and in this matter each person lives by their own beliefs, in any event the government has notified the court that if the negotiation leads to an agreement, it will be explicitly stated in the agreement that it will not be valid unless it is approved by the government, and then is later approved by the Knesset, and will also fulfill all the conditions that were determined for such an agreement in the laws of Israel. In such a case, the government and the Knesset will discuss the agreement substantively and before it is given any validity. Moreover, even at this stage while the negotiation is going on, the Knesset can intervene in the negotiation as it sees fit. That is its power. Therefore, it is also its responsibility. Therefore, this is also the right path to follow. Under such circumstances and taking into account the rest of the circumstances of the case, I believe that no court in the world would take it upon itself to intervene and terminate the negotiation by way of order or declaration. In these circumstances, this court also does not need to do so. Therefore, I agree with President Barak that the petitions are to be denied.

It was decided as per the opinion of President A. Barak, and against the dissenting opinion of Justice J. Türkel.

Petitions denied.

1 Shvat 5761

Full opinion:

Weiss v. Prime Minister of Israel.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/00/670/051/A13/00051670.a13.pdf

Universal City Studios v. Films and Plays Censorship Board

Case/docket number:

HCJ 806/88

Date Decided:

Thursday, June 15, 1989

Decision Type:

Original

Topics:

Universal City Studios Inc. v. Films and Plays Censorship Board.pdf

Freedom of Expression

Abstract:

The Films and Plays Censorship Board decided to prohibit the screening in Israel of the film "The Last Temptation of Christ" on the ground that it was calculated to offend the religious susceptibilities and beliefs of the Christian communities in Israel, and to cause injury to the State of Israel.

The producers of the film and its distributors petitioned the High Court of Justice for an order nisi against the Board, which was granted. On allowing the petition and making the order nisi absolute, the High Court held as follows:

1. The point of departure for examining the legality of the Board's decision is the basic principle of freedom of expression, including freedom of artistic creativity, which is the central feature of freedom of human thought and the ability of the human being to attain self expression.

2. Freedom of expression is widely regarded as a right, enjoying supra-legal status, and at any rate constitutes one of the most fundamental features of a democratic society. It is very wide in extent and covers the right to express views which may be unpopular or unpleasant to certain audiences.

3. Restrictions on the freedom of expression must of necessity be applied as narrowly as possible in order to protect the freedom itself. Nevertheless, the freedom cannot be entirely unrestricted, but must yield, in exceptional cases, to competing values, interests and principles. This applies, however, only to extreme cases where it is clearly shown, for example, that there is a close certainty of imminent danger to public order or security in allowing unlimited freedom of expression.

4. In the present case, it was not sufficient to show that the literary and artistic expression as manifested in the film was liable to cause offence to some persons. In order to disqualify the film on the grounds put forward by the Board, it must be shown that such expression was so extreme in its offensiveness against the Christian religion, that public viewing of the film must be prevented. In the present case, the intensity and extent of the offensiveness was not proved, so that the decision of the Board could not be upheld.

5. The fact that the film has been released for almost universal showing, including in most Christian countries, removes the basis from the argument that the screening of the film amounts to a serious offence to Christians. The "political" argument as to potential damage to the State of Israel in allowing the film to be shown has no foundation.

6. The High Court of Justice in this case was bound to intervene in the discretion of the Board in disallowing the showing of the film in order to uphold the principle of freedom of expression, since there was no basis for restricting that freedom.

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Barak, Aharon

Author

concurrence

Levin, Shlomo

Author

concurrence

Goldberg, Eliezer

Author

concurrence

Malz, Yaakov

Author

concurrence

Full text of the opinion:

H.C.J 806/88

I. Universal City Studios Inc.

2. United International Pictures Ltd.

3. Golan Globus Cannon Israel (1983) Ltd.

1. Films and Plays Censorship Board.

2. Minister of the Interior.

3. Yehoshua Justman.

In the Supreme Court Sitting as the High Court of Justice

[June 15, 1989]

The President (Justice M. Shamgar), A. Barak, J., S. Levin, J. E. Goldberg J. and Y. Maltz J.

Editor's Summary

The Films and Plays Censorship Board decided to prohibit the screening in Israel of the film "The Last Temptation of Christ", on the ground that it was calculated to offend the religious susceptibilities and beliefs of the Christian communities in Israel, and to cause injury to the State of Israel

The producers of the film and its distributors petitioned the High Court of Justice for an order nisi against the Board, which was granted. On allowing the petition and making the order nisi absolute, the High Court held as follows:

Israel Supreme Court Cases cited:

[1] C.A. 723/74 "Ha'aretz" Newspaper Publication Co. Ltd. v. Israel Electric Corporation Ltd., 31 (2) P.D. 281.

[2] H.C. 14/86 Laor v. Films and Plays Censorship Board, 41(1) PD 421.

[3] H.C. 146/59 Cohen v. Minister of Interior, 14 P.D. 284.

[4] H.C. 243/62 Israel Film Studios Ltd. v. Gueri, 16 P.D. 2407.

[5] F.H. 3/87 Films and Plays Censorship Board v. Laor, 41(2) P.D. 162.

[6] H.C. 351/72 Keinan v. Films and Plays Censorship Board, 26(2) P,D, 81.

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

[8] H.C. 73, 87/53 "Kol Haam" Co. Ltd.; "AI Atiahad" Newspaper v. Minister of the Interior, 7 P.D. 871.

[9] F. H. 9/77 Israel Electric Corporation Ltd, v. "Ha'aretz"Newspaper Ltd., 32(3) P.D. 337.

[10] H.C. 243/81 Yaki Yosha Co. Ltd. v. Films and Plays Censorship Board, 35(3) P.D. 421.

[11] Election Appeals 2, 3/84 Neimann v. Chairman of Central Elections Committee for the 11th Knesset; Avni v. the same 39(2) P.D. 225.

[12] Cr. A. 255/68 State of Israel v. Ben Moshe, 22(2) P.D. 427.

[13] H.C. 372/84 Klopfer-Naveh v. Minister of Education and Culture, 38(2) P.D. 233.

[14] H.C. 153/83 Levi v. Commander of Israel Police Southern District, 38(2) P.D. 393.

[15] Cr. A. 677/83 Borochov v. Yefet, 39(3) P.D. 205.

[16] H.C. 206/61 The Israel Communist Party v. Mayor of Jerusalem, 15 P.D. 1723.

[17] H.C. 448/85 Dahar v. Minister of Interior, 40(2) P.D. 701.

[18] H.C. 896/87 Ayalon Insurance Co. Ltd. v. Broadcasting Authority, 43(1) P.D. 701.

[19] Bar Association Appeal 13/86 Hoter-Yishai v. Tel Aviv District Committee of the Israel Bar, 41(4) P.D. 838.

[20] H.C. 807/78 Ein Gal v. Films and Plays Censorship Board, 33(1) PD 274.

[21] H.C. 680/88 Shnitzer v. Chief Military Censor, 42(4) P.D. 617.

[22] Cr. A. 126/62 Disenchik v. Attorney General, 17 P.D. 169.

[23] H.C. 549/75 Noah Films Co. Ltd. v. Films Censorship Board, 30(1) P.D. 757.

American Cases Cited:

[24] Dennis v. United States 341 U.S. 494 (1951).

[25] New York Times v. Sullivan 84 S.Ct. 710 (1964).

[26] Joseph Burstyn Inc. v. Wilson 343 U.S. 495 (1952).

[27] Superior Films v. Dept. of Education 346 U.S. 587 (1954).

Jewish Law Source Cited:

[A] Ecclesiastes, Ch. 8, v. 8.

Objection to order nisi dated 30.11.88. Petition allowed and order nisi made absolute.

D. Peri, S. Schretzer - for petitioners;

N. Arad, Head of High Court Cases Dept., State Attorney's Office, - for respondents

JUDGMENT

Shamgar P.:

1. This petition concerns the decision of the Films Censorship Board to ban the showing of the film "The Last Temptation of Christ".

2. That film was produced by the first petitioner. The second and third petitioners are the distributors of the film world-wide and in Israel respectively.

The film, which was shot in Morocco, is based on the book of the same name by the Greek author, Nikos Kazantzakis, and was staged by Martin Scorsese.

As to its content, the film describes the life of Jesus from the time of his sojourn in Jerusalem - including his baptism in the River Jordan, the adherence of his apostles, his miracles and the spreading of his doctrines - up to the time of his crucifixion. The film contains realistic overtones which give expression to the clear and obvious tendency of the author and the director to introduce human elements into the image of Jesus, despite the popular conception of his in the eyes of believers in the Christian faith. At the same time there is a dominant thread in the film which is purely Christian, the descriptions of the miracles affording an outstanding example of this. In other words, as in the book so in the film there are deviations from accepted Christian religious doctrine. But as against this the creators of the film could claim that the realism and the bases for the humanisation are included in most of the artistic and theatrical creations influenced by Christian doctrine, and even in those authorised and accepted by it. Nor is it superfluous to recall that this matter has been the subject of many theological and philosophical arguments and has been the cause of theoretical disputes and religious conflicts, as is well-known.

One scene, which the objectors to the screening of the film noted in particular, depicts an ostensibly erotic hallucination in which the hero of the film participates. This episode describes Jesus' reflections on a possible alternative style of living other than being the victim of crucifixion. This is one of the scenes in which descriptions of Satan's attempts at seduction are described, and is the one which gave the film its title (of "The Last Temptation of Jesus").

All comments on the content of the film are made without any intention of identifying, or clearly typifying of, any ideas and descriptions in the film, and are intended only to emphasise the central theme of the dispute based on the clash of opinion between those in favour of banning the film and those in favour of allowing it to be shown.

3. As appears from the letter of the Censorship Board dated October 18, the Board decided not to allow the film to be screened in Israel because "in the opinion of the Board screening of the film which goes to the very foundations of Christianity would be most offensive to the religious feelings and faith of the Christian community."

The petitioners appealed against this decision to the Board, who decided not to alter its earlier decision prohibiting the showing of the film. The petition before us concerns this prohibition.

4. What is the normative framework within which the court's considerations are crystallised when deciding whether or not to interfere with the discretion of the council?

The basis of our examination of this question is the essential rule of freedom of expression from which emanates, inter alia, freedom of artistic creation in the fields of literature and the visual arts. In this matter it is of course irrelevant whether the creation takes the form of theoretical, philosophical treatise, or a play, or any other visual medium. For us it is clear and straight forward that a person is entitled to express his ideas and thoughts publicly, including his interpretation of past, present and future events, without any restrictions. That is the central characteristic of freedom of human thought and man's ability to achieve self-expression.

The theoretical point of departure from which freedom of expression derives is that the law may not prevent a person from behaving as he pleases, unless there be a positive reason for doing so owing to harm or possible harm to others. This is what is called, inter alia, the minimal principle of freedom (see K. Greenawalt, "Free Speech Justifications, 89 Colum L. Rev. (1989) 119). In order to give meaning to the principle of freedom of expression, substantial restraint must be exercised at the time of laying down any restrictions or reservations with respect to this right. In other words, for the sake of this end a special protected status must be conferred which safeguards this freedom against any retreat in the face of an opposing interest (F. Schauer, "Free Speech: A Philosophical Inquiry" (Cambridge, 1982) 5.) A similar idea was expressed in C.A. 723/74 [1], at p. 295:

"...The nature of freedom of expression, described as one of the basic constitutional rights confers upon it supra-legal it constitutes a guideline for the consolidation and drafting obligation to uphold of legislation and the reviewing of the legality of governmental authorities' actions. Furthermore, it has a direct influence on the legal interpretation of every enactment. Every restriction of the bounds and right extent of such emanating from an enactment, must be construed narrowly with the aim of giving this right maximum scope and not restricting it beyond what is clearly and distinctly obligatory according to the law (H.C. 75/76, "Hilron" v. The Fruit and Marketing Board, p. 653). Freedom of expression and a provision of law aimed at restricting it do not have similar and equal status. On the contrary, to the extent to which it is compatible with the text, this right must be given preference at all times over a provision of law which has a tendency to restrict it. To sum up, the criterion to be used in safeguarding the primary of freedom of expression, when it clashes with another right, should be fully manifested not only when the legislator drafts provisions of law, but also when the law is interpreted and its provisions are applied to circumstances in which its nature and implementation are reviewed in practice."

5. The problem is, as has already been hinted, that this freedom cannot be absolutely unlimited, as the rights of one person cannot be allowed to prejudice the rights and freedoms of another or disturb public order.

The question, therefore, arises as to what the extent of the limitation should be or, in other words, how extreme the disturbance of public order, or the prejudice of another's rights, should be in order to justify limiting a man's freedom (of expression). In order to solve this problem recourse symmetry is had to the rules of the application of which in practice is often not easy. We shall return to this matter later.

6. The Censorship Board has been vested with the power to preclude in advance the showing of a play or film which prejudices public order (H.C. 14/86 [2] p. 430). As my colleague, Justice Barak, pointed out there:

"...The range of the (legislative- M.S.) purpose at the basis of the Ordinance is far-reaching, and includes prejudice of public order, whether as a result of a criminal act or of an immoral act or of any other act which is offensive to the feelings of the public or to its well-being (see H. 281/78, p. 409). Justice Silberg emphasised this as follows: 'It would appear to us-without entering into details - that the criterion by which the Board should be guided, when weighing up a decision to refuse or cancel a permit, should be that a film which is an offence to morals and good taste, or which can lead to demoralisation should not be allowed to be screened (H.C. 146/59, p. 284)."

There is room for questioning whether the above criterion as defined by Justice Silberg is not too broad and sweeping. In accordance with the standards acceptable to us, and in particular in the light of the special status granted to freedom of expression, we would not today think of disqualifying a film or play only because it is 'offensive to good taste'. The Board- and even the courts - are not guardians of good taste, which is a subjective concept by its very nature and content. The court would not presume to educate theatre or cinema audiences in accordance with the artistic taste of the judges, such cultural paternalism being foreign to its philosophy. According to appropriate criteria only a serious, meaningful and extreme infringement of a protected value could serve as a cause for interference of the courts with freedom of expression. A narrowing of what was said in H.C. 146/ 59 [3] to a desirable dimension can be perceived to some extent in the words of Justice Landau in H.C. 243/62 [4] at page 2413. I referred to this in greater detail in F.H. 3/87 [5], page 163:

"As learned counsel for the petitioner rightly pointed out, we have adopted the test of 'near certainty'. Thus we cannot accept the petitioner's suggestion that we distinguish between publication of news, to which the said rule would apply, and publication of plays, to which a more stringent rule would apply- that is the rule that the showing of a play or film should not be permitted if it is 'an offence against morality or good taste, or likely to cause demoralisation' (in the words of H.C. 146/59).

As already stated, I do not think that there is room for the suggested distinction and, in particular, I do not think that there is any basis for it in the present case. This court has expressed its opinion on the question of expression on many an occasion (see, for example, H.C. 372/84; E.A. 2,3/84) and the judgment to which this petition refers gave expression to the traditional approach to this matter.

The suggested distinction between implementing and recognising a basic right, according to whether it applies to information or to literature and culture, is inherently inconsistent, with the basic principles which it purports to uphold. In short, the theory that the courts recognise that the Board can lay down standards of morality, consolidate educational standards and ban performances which are not educational in their opinion, is too far-fetched and is not consistent with our legal concepts."

7. As mentioned above, the aim of the Cinematograph Films Ordinance is to vest the Board with the power to prevent in advance the public screening of a film which is prejudicial to public order. That is, in the context of the present case, the "protected value "to which I referred above.

As already explained by Justice Barak in H.C. 14/86 [2]:

'"Public order' is a wide term which is difficult to define and which changes according to its context. In its present context it includes endangering the existence of the State, its democratic regime and the public welfare, and offending morals, religious sentiments and a person's good name, as well as prejudicing the guarantee of fair judicial process and similar matters concerning public order (see H.C. 243/62, p. 2418; H.C. 81/78. p. 409; H.C. 807/78)."

We have seen that disturbing public order - which includes also outraging religious sentiments - can be a cause for restricting freedom of expression, as has in fact been confirmed by this court in, for example, H.C. 351/72 [6] p. 813; and see also H.C. 399/85 [7], p. 295.

Thus, although freedom of expression also fosters freedom of religion, such freedom does not extend to cases where there is a serious offence to religious sentiments. In other words: freedom of expression produces an atmosphere of tolerance of others' opinions, and this is the breeding ground for freedom of religion (L.C. Bollinger, "The Tolerant Society" (Oxford, 1986) and see also V. Blasi, "The Teaching Function of the First Amendment", 87 Colum. L. Review (1987), p. 387).

But this tolerance should not serve as a license for seriously outraging the religious sentiments of others. One can even say that serious offence to religious sentiments is the antithesis of tolerance, which is directed to the positive cultivation and advance of human self-expression and not for outraging and suppressing feelings. Mutual tolerance among persons of different outlook, opinions and faiths is a fundamental precondition for the existence of a free, democratic society, and serious offence to feelings is not consistent with that. We have held, therefore, that both plays and films are not exempt from the obligation to refrain from seriously and substantively offending the religious sentiments of others (H. C. 351/ 72 [6] above). There are, therefore, circumstances in which the basic principle of freedom of expression must retreat before such outrage.

8. Hence comes the derivative question: how serious does the outrage have to be in order to justify restricting freedom of expression? In other words, as already mentioned, we accept the fact that in certain circumstances there could be a clash between freedom of expression and the aim of preserving public order, both of which are basic values of our policy concepts and our system of law.

There is, therefore, a kind of competition, in the language of Justice Agranat (as he then was) in H.C. 73/53 [8], between two interests, each of which is of primary importance from the point of view of social policy.

The solution to this "tug-of-war" lies in finding a balance between the competing, and even conflicting, principles (see H.C. 14/86 [2], p. 434). This balance was struck by the court by laying down a value guideline (F.H. 9/77 [9], p. 361) which is consistent with the enlightened views of our society. According to our concept, freedom of expression cannot be restricted because of an affront which is not serious. Only an extreme, offensive and deep affront would justify restricting freedom of expression (H.C. 351/ 72 [6] and H.C. 243/81[10]).

9. Insofar as the probability of an affront inducing us to restrict freedom of speech for reasons of public order is concerned, we have adopted the test that if there be a "near certainty" in a concrete case that implementation of some particular right would prejudice public safety or order, then a statutory authority with the competence to do so may restrict in practice the implementation of that right (E.A. 3,2/84 [11], pp. 265-266). In that case I quoted as follows from Douglas J.'s judgment in Dennis v. United States [24]:

"The restraint to be constitutional must be on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 376-377:

'Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one'".

This concept was adopted by us, as already mentioned, in that we laid down that the offence must be serious, extreme, and gross and that there must be a near and inevitable certainty that it would harm public order.

The test of ''near certainty" is an objective one, and the court will examine, within the scope of judicial review in a concrete case before it, whether the rest served as a theoretical guideline only for the statutory authority or whether it was also applied as a practical criterion in a proper and correct manner.

10. In the case before us was there a near certainty that there would be a serious disturbance of public order as a result of the alleged offence to religious feelings?

The Board decided to impose the ban on the film on the grounds that screening it would cause serious outrage to the religious feelings and faith of the Christian community. Such outrage could, on a suitable occasion, provide a cause for disqualifying a film (H.C. 351/72 [6]). But the question before us is whether there was a real basis for the Board's opinion that the expected outrage would be so exaggerated and serious as to warrant their conclusion, which was based on two main factors: first, an independent viewing of the film and the conclusion concerning the possible outrage which could result from it; and, secondly, the many written requests which they received sought to persuade them that it was only right to ban the picture.

11. I am of the opinion that in the case before us there was no justification for banning the film. I am not oblivious of the fact that the theses and theories put forward in the film often clash with accepted, official Christian doctrine. But the Christian world is also pluralistic and in order to disqualify the film one must be satisfied that the literary and artistic subjective expressions of the author, Kazantakis, and of the director, Scorsese, are so extremely offensive to the Christian faith as to warrant suppression of their public expression in Israel. The fact that the film could arouse opposition, and even disgust, amongst some of those who elect to see it, is not sufficient.

In this context, one cannot ignore the fact that Jesus is portrayed in the film in a positive and sympathetic manner and that his super-human power is a basic element in the concepts of the author and director. Incidentally, the only ones to come out negatively in the film are the Jews who fought against the Romans and those among the common people of Jerusalem who did not follow Jesus. But that, also, would not justify banning the film on the basis of the criteria by which we have formulated our decisions in similar cases.

For my part, the main thing is that the decisive majority of the Christian public will not see this film in Israeli cinemas but will see it throughout the Western world. I cannot see the logic of banning a film in Israel because it is ostensibly so extremely offensive to the Christian community, whereas at the same time it is being shown, without any legal restrictions, in all the countries of the Christian world (including Italy, Spain, Germany and France).

I cannot accept the argument that we should restrict freedom of expression more stringently than is common in Western countries with purely Christian populations. This argument has an uncomplimentary and unconvincing implication: the theory that there is a difference between the level of education and sophistication of the local Christian population and that of other countries, as suggested in several of the letters sent to the Board, contains an unjustified insult against the Christians in Israel, and, in particular, has simply no factual basis. With all due respect, there is no foundation for the opinion that the Christian inhabitants of Nazareth of Ramallah are culturally inferior to the inhabitants of Calabria or Normandy.

There is no near certainty of serious and far-reaching danger to public safety which could justify limiting freedom of expression in the present case. There is no evidentiary foundation for deciding that what the Christians of Rome and Paris may see should be forbidden in Jerusalem. As to the argument about "an inclination towards evil" (in the words of Justice Agranat (as he then was) in H.C. 73/53 [8]) which could have a negative influence, I agree that one should not be oblivious to the fact that in the eyes of the believer every description which differs from the one accepted by, and sacred to him, would annoy him. But "an inclination towards evil" is not sufficient to justify the suppression of free speech, and the extent and force of the injury must be substantial as explained above in detail. The free showing of the film in purely Christian countries is sufficient, in my opinion, to negate the reasons for banning the film, and to render illogical the adoption of a more extreme stand in our country. We are used to being open-minded and tolerant to the extreme even in the face of serious affronts to values which are at the foundation of our existence (see H.C. 14/86 [2]) so that there is no justification or logic for diverting from our accepted and traditional judicial standards and adopting a more extreme attitude in matters which are the subject of this petition.

I would, therefore, allow the petition and make the order nisi absolute.

A. Barak J.:

I concur with the President's judgment and with the observations of Justice Goldberg. Because of the importance of the problem before us, I should like to add several comments.

1. Freedom of expression is one of the basic values of our law (H.C. 14/86 [2], p. 878). It constitutes a "supreme right" (in the words of Justice Agranat, as he then was, in H.C. 73/53 [8]). There are those who vest it with a supra-legal status (C.A. 723/74 [12 ], p. 295). But even those who do not go so far regard it as being "the very essence of democracy" (Justice Agranat in Cr.A. 255/68). The justifications for this evaluation are complex and interwoven (see H.C. 399/85 [7]).

One justification is the desire to lay bare the truth. Freedom of expression must be ensured in order to enable different and variegated views and ideas to compete with one another. This competition and not a directive from above, will, in the final analysis, lead to revelation of the truth. Another justification is the need for man's self-fulfilment. Only through freedom of expression can this self-fulfilment be attained. A third justification bases freedom of expression on democracy. "The principle of freedom of expression is connected closely with the democratic process" (Justice Agranat in H.C. 73/53 [8], p. 876). Freedom of expression is an essential requisite for the existence and development of a democratic regime (H.C. 372/84 [13]).

The connection between freedom of expression and democracy has many different aspects. Freedom of expression guarantees an exchange of opinions between members of a society and thus enables them to formulate their approach to matters of national interest. In that way a government can be moulded, controlled and replaced. Furthermore, freedom of expression contributes towards social stability, as social pressure receives expression from speech rather than from deeds. In addition, a democratic regime is based on tolerance. Freedom of expression enhances tolerance and thus strengthens democracy. Thus between freedom of expression and democracy there is a state of mutual interdependence. Democracy is the basis for freedom of expression and freedom of expression gives democracy the breath of life. Without freedom of expression democracy loses its soul. That is why freedom of expression enjoys a special status. It ensures the existence of a democratic regime which, in turn, ensures the existence of other basic rights.

2. Every discussion of freedom of expression necessarily entails reference to two separate questions: first, what is included in that basic value called freedom of expression and what is excluded from it. This differentiation creates a boundary-line for expressions which are "covered" by the principle of freedom of expression. It competes with the question of what could be called "expression" within the meaning of this basic value. For instance, would freedom of expression "cover" the giving of false evidence in court or would perjury be completely excluded from its framework? Is the right to demonstrate included with freedom of expression, and does such freedom cover commercial advertising?

Secondly, what is the extent of the protection which the law gives to those expressions which are included within the framework of freedom of expression. Do they have "absolute" protection or only relative protection? And if they have only relative protection what are the criteria thereof? (see Schauer, above, p. 89).

3. Our approach to the question of the scope of freedom of expression is a broad one. Such freedom applies to every expression, whether political, literary, commercial or any other, and whether verbal or behavioural (symbolic or otherwise) such as demonstrations (see H.C. 153/83 [14]). Within the framework of freedom of expression there is no differentiating between truth and falsehood. Therefore, in principle, even an expression which is defamatory is "covered" by freedom of expression (see Cr.A. 677/83 [15]). Freedom of expression extends to every expression, whatever its content, influence, or style. In the words of Justice Agranat in H.C. 73/53 [8], p. 877:

"The principle of freedom of expression serves as a means and an instrument for discovering the truth, since only by airing all points of view and by a free exchange of all opinions can that 'truth' be clarified."

And President Shamgar supported this approach in holding that:

"Exchange of opinions, airing of viewpoints, public debate, the desire to know and learn and persuade are all essential tools at the disposal of every opinion, every point of view and very belief in a free society." (E.A 2/84[11], p 278).

Freedom of expression, therefore, covers all opinions, whether popular or unpopular, whether those which people like to hear or those which annoy and are deviant, and those which "antagonise by their content, and disgust" (President Shamgar in E.A. 2/ 84 [11]). Freedom of expression is not only freedom to give quiet and pleasant expression to something. It is also freedom to cry out in a manner which grates on the ears (C.A. 206/61 [16] p. 1728). It also includes freedom to express an "uninhibited, robust and wide open opinion"(Judge Brennan in New York Times v. Sullivan, 1964 [25] p. 721, adopted by President Landau in F.H. 9/77 [9], p. 351) Freedom of expression covers "matters which annoy and grate on the ears" (Justice Beisky in C.A 2/84 [11], p. 325). Even an expression which is "a nasty spread of erotics, politics and aberrations of all kinds" comes within the framework of freedom of expression (H.C. 14/86 [2], p. 433). We have consequently held that racial expressions are covered by the principle of freedom of expression (H.C. 399/85 [7], p. 281). An expression offensive to religious sentiments, or which includes obscene material, is also covered by freedom of expression.

4. Once a positive reply has been given to the question of "scope", the second question must be dealt with. This concerns the extent of the protection given to an expression by a particular system of law. This question assumes that we are interested only in expressions over which the principle of freedom of expression extends its protection. However, every system of law seeks to apply limitations on freedom of expression; and, therefore recognition of an expression as coming with the scope of freedom of expression does not mean that it is protected in all circumstances. The reason for this is that freedom of expression is not the only value which a democratic society seeks to preserve. There are additional values, the recognition of which justifies imposing limitations and restrictions on freedom of expression. For example, in every society it is common to find cause for restricting freedom of expression in order to protect a person's good name. Likewise, it is justified in every society to limit a person's right to demonstrate against the background of another's right to walk in the streets of the town. Similarly, it is natural for rowdy expressions to be restricted in consideration of the quality of life and the environment.

The common approach in all systems of law is to regard freedom of expression as not being "absolute". Our conception is that freedom of expression is "relative". "A distinction must be drawn between freedom and unbridled license" (Justice Agranat in H.C. 73/53 [8], p. 878; President Landau in F.H. 9/77 [9], p. 343).

"Freedom does not mean unbridled license, and there are circumstances in which it is vital to impose restrictions" (President Shamgar in E.A. 2/84 [11], p. 279). It could be argued that the distinction between "cover" and "restriction" is artificial, as when a "restriction" is imposed on freedom of expression then the expression is not "covered" by the principle of freedom of expression.

I cannot accept this argument. The distinction between "cover" and "restriction" is very important. First, it emphasises the fact that prima facie the expression is protected, that it would require special justification in order to restrict it, and that in the absence of such justification it must be permitted. Secondly, where there is some restriction then freedom of expression would continue to exist beyond the restriction. The restriction does not establish the extent of the right, it only lays down limitations.

5. The restrictions on freedom of expression take different forms, three of which are the main ones. The most serious restrictions are those which prevent expression in advance. This actually excludes publication, making the prejudice to freedom of expression immediate. This means that the protection given to the other values worthy of protection is the fullest. A less serious restriction is the criminal or civil liability of the person giving vent to the expression.

Here the expression comes to light "in advance" while the perpetrator is liable "post factum". While restriction in advance "freezes" the expression, "post factum" liability "chills" it (see A. M. Bickel, the Morality of Consent [New Haven and London, 1975] p. 61). The third main restriction of freedom of expression - a "weak" one - is the regime of permits. According to this arrangement the State exercises control, through the medium of permits, over several aspects of freedom of expression. For example, permission is required for the publication of a newspaper, or a permit for holding a demonstration. It should be noted that these forms of restriction are not separated from one another. Very often the system requires a combination of several of them. Of course, the greater the combination the more severe the restrictions on freedom of expression.

6. The restrictions on freedom of expression are of two kinds: first, a restriction whose source is in the content of the expression itself which is of such a nature that it could lead to consequences which a democratic society would seek to prevent. The legal system creates a balance between the freedom of expression value and values which that freedom could prejudice. Examples of instances in which freedom of expression would be curbed can be found in the defamation laws, in the criminal laws with respect to obscenity and in the sub judice rule. Censorship of films and plays would be included in this kind of restriction, as the purpose of censorship is to protect the public against the harmful content of the expression itself. As these restrictions prejudice the very essence of freedom of expression every democratic society will confine them to the most vital instances only.

The second kind of restriction of freedom of expression is not connected with the content of the expression itself, but with its method of communication. The system of law creates a balance between the way in which freedom of expression operates in practice (without any connection with the content of the expression itself) and other values which are prejudiced by its application. An example of this can be found in laws which curb the freedom of demonstration. This restriction is not aimed against the content of the message which a demonstration seeks to deliver, but to the manner in which it is delivered, which could harm freedom of movement or other values which society seeks to protect (see M. Nimmer, On Freedom of Speech: A Treatise on the Theory of the First Amendment [1984] pp. 2-25; L.H. Tribe, American Constitutional Law [Mineola, 2nd ed. 1988] p. 789).

7. When is it justified to restrict freedom of expression, and how should the restriction be applied? There is no general reply to this question. It all depends on the values, interests and principles with which freedom of expression clashes (see H.C. 153/83 [14]; H.C. 448/85 [17]).

There can, therefore, be instances in which freedom of expression would not be restricted at all, and would be given full force, where there is no value or interest which justifies curbing it. Where there are values and interests which would justify curbing freedom of expression, a clash would be created which would require finding a balance between the restriction and the competing value. This balance could be laid down by the legislature itself. In the absence of any enactment the balance will be laid down by the courts. Since the Kol Ha-am case (H.C. 73/53 [8]) we have accepted the idea that this balance should be one of principle and not an ad hoc one.

We have to establish a "rational principle" (Justice Agranat in H.C. 73/53 [8], p. 881) which would constitute "a yardstick which contains a value guideline", which distancing ourselves from any "random paternalistic yardstick, whose direction and nature no-one can evaluate in advance" (Justice Shamgar in F.H. 9/77 [8], p. 361). This yardstick balances the various conflicting values and provides a "balancing formula" in principle. This formula revolves round two axes: the seriousness of the injury which revolves around freedom of expression causes to other interests deserving of protection; and the probability of such injury occurring. I emphasise this in another case as follows:

"The Board's powers are determined by the need to preserve public order. This criterion raises two questions, the answers to which are relevant to the petition before us: first, what is the intensity of the harm to public order, and whether all harm, however slight, would allow use of the Board's powers; and, secondly, what is the extent of probability which must exist between the showing of the play and the harm to public order, and whether it is sufficient that there was a distant probability of this harm's occurring in order to justify the use of the Board's powers (H.C. 14/86, p. 431)."

8. We must approach an examination of the petition before us against the background of this normative attitude. The first question to be asked is whether a cinematographic expression would come within the framework of the principle of freedom of expression. The unequivocal answer to this question is that freedom of expression covers also cinematographic expressions. It is true that these latter expressions have a commercial aspect, but we have held in the past that commercial expressions are also covered by the principle of freedom of expression (see Joseph Burstyn Inc. v. Wilson [26] and H.C. 896/ 87 [18]; see also Bar Association Appeal 13/86 [19]). Freedom of expression does not distinguish between different forms of expression (see Superior Films v. Dept. of Education [27]).

The second question which arises is whether in the circumstances of the case before us there could, in principle, be values or interests which come into conflict with freedom of expression, requiring a balance between them to be found. For example, if freedom of expression results in harming the good name of a person or public, this would usually harm values and interests which must be protected. The balance between these competing values is effected mainly by the legislator, in the Defamation Law, 1965 (see F.H. 9/77 [9] above). Similarly, if freedom of expression violently harms public order (in the case, for instance, of bodily injury or injury to property) then it is usual to restrict this freedom for the sake of protecting physical and proprietary values (see H.C. 907/78 [20]). The same rule applies when an expression endangers the security of the State (H.C. 680/ 88 [21], or judicial integrity (Cr.A. 126/62 [22]). In the absence of sufficient legislative guidance this balance is effected mainly by case law, in which tests with respect to the nature and extent of the harm and the probability of its occurrence are laid down.

9. In the circumstances of the petition before us are there interests and values which justify restricting freedom of expression? It was argued before us that religious sentiments are values which must be protected against injury caused by the implementation of the principle of freedom of expression. Is this an acceptable argument? The question is far from being a simple one. On the one hand, one can say that there is no reason for distinguishing between injury to body or property and injury to sentiments; and just as it might be justified to restrict freedom of expression in the former case so would it be justified in the latter case. But, on the other hand, one can say that every expression might harm some sentiment and recognition of harm to sentiments as a basis for restricting freedom of expression- without drawing any distinction between religious sentiments and other sentiments - could make an empty letter of freedom of expression.

It is difficult to decide between these conflicting opinions. Different systems of law could produce conflicting conclusions and under any system of law the answer to the question could vary in accordance with the differences in the context in which the question arises. We can, therefore, frame the question as follows: within the framework of the Cinematographic Films Ordinance is the Censorship Board, established by virtue of that Ordinance, entitled to take into consideration injury to religious sentiment as a cause for restricting freedom of cinematographic expression? In my opinion the answer to this question is in the affirmative, for the following reasons.

First, the very nature of "censorship" of films calls for granting this power. It is true that one can object to censorship on the grounds that there is no justification for allowing a government body to restrict freedom of expression on account of injury to sentiments. But once censorship exists then the power to restrict freedom of expression on account of injury to sentiments follows from its very nature. It is inconceivable that the only function of the Censorship Board should be to examine whether showing a film would constitute a criminal act or not. The make-up of the Board and its functions point to the fact that injury to sentiments - alongside injury to other values - is a consideration which it should be able to take into account.

Secondly, in Israel it is a criminal offence to outrage religious feelings (section 173 of the Penal Law, 1977). So that the Board would be entitled - although not obliged - to include the criminal nature of a publication amongst its considerations (see H.C. 351/ 72 [6]). Furthermore, in a long series of judgments the Supreme Court has recognised outrage of feelings (religious, bereavement and others) as an injury to values which justifies, in principle, the use of the Board's powers to restrict freedom of expression (see H.C. 146/59 [3], H.C. 243/81 [10], H.C. 14/86 [2]). '"The consideration which we owe to their feelings counterbalances the abhorrence of all forms of censorship". (H.C. 243/81 [10], p. 425).

10. In short, the feelings of the public are values which the Censorship Board, in its capacity as censors of films, should take into consideration and any outrage of those feelings could justify curbing freedom of expression. Against this background comes the third question which concerns the kind of outrage which would justify curbing freedom of expression. This question can be divided into two subquestions: the seriousness of the outrage and the probability of its occurrence. I shall examine each separately.

11.. An outrage against public feelings must be "harsh, serious and severe" in order to justify imposing a limitation on freedom of expression. (H.C. 14/86 [12], p. 435). What is the meaning of this test? It reflects, in my opinion, the conception that a democratic society, by its very nature and content, is based on tolerance of others' opinions. In a pluralistic society tolerance is the one power allowing for shared existence. Thus, every member of the public takes upon himself the "risk" of suffering some offence to his feelings in the course of free exchange of opinions. A society which is based on social pluralism must, therefore, allow free exchange of opinions even though this may hurt the feelings of those who object to the opinions. "That is the other side of the mutual tolerance necessary in a pluralistic society (Justice Witkon in H.C. 549/75 [24] p. 764). Recognition of the fact that there is bound to be a certain degree of exposure to hurt feelings on the part of members of the public follows from the very nature of a democratic regime. A "harsh, serious and severe" outrage, justifying the curbing of free expression within the framework of censorship of films, is that same outrage which exceeds "the tolerance standard" of a democratic society (see H.C. 243/81 [10] p. 425).

So that when we are concerned with the matter of a film which takes a stand on a controversial subject (historical, religious, social or other) and does so in a manner which does not involve criminal liability - in that it does not contain anything obscene or outrageous to religious feelings - it would be difficult to imagine situations in which such "harsh, serious and severe" damage is caused as crosses the boundary-line of what is permissible in a democratic society, whether it contains some factual truth or not (see H.C. 807/78 [20], p. 277). It should also not be forgotten that the same creation in the form of literature would be accepted unconditionally, and, furthermore, that no-one is forced to see a film, or be exposed to its message. This would appear to be the rule to be gleaned from the judgment in H.C. 351/72 [6], in which the Supreme Court held that a play outraged the feelings of bereaved parents and assailed moral social values, but that was not sufficient to justify curbing free expression. According to Justice Landau (at p. 816):

"...there is no doubt that the offences to the feelings of bereaved individuals and the public as a whole with which the words of the play testify to unprecedented strewn callousness and vulgarity. But we would still have hesitated to confirm the banning of the play, however repulsive to us it may be, were that the only reason for doing so, for fear of prejudicing the freedom of expression."

In that way Justice Landau gave expression to this court's opinion that "the tolerance standard" of our society towards the expression of controversial opinions which are not against the law is very high. Only in the rare and exceptional case would there be found to have been "harsh, serious and severe" damage in a film which conveys a message not containing anything criminal to a "non-captive" audience. Such cases could occur, of course (see H.C. 243 / 81 [10]), but our tradition of freedom of expression and the fact that we recoil from imposing an early ban based on the content of the expression itself, limits such cases to only the most exceptional. These must be cases which shock mutual tolerance to the very limit.

And note that the fact that screening a film may constitute a criminal offence (such as publishing something calculated to outrage religious feelings, contrary to section 173 of the Penal Law, or publishing any obscene matter contrary to section 214 of the Penal Law) is not an essential or sufficient precondition for an advance prohibition on the part of the censor. It is not an essential precondition because a film can, in certain exceptional circumstances, cause outrage in a harsh, serious and severe manner without breaking the law. It is not a sufficient precondition because a balance between conflicting values could justify refraining from imposing an early ban (through censorship) while having recourse to banning "after the event" (through ordinary criminal proceedings). Nevertheless, the criminality of a play has substantial meaning, as it reflects the attitude of Israeli Society to its "red lines".

12. This is of particular significance insofar as a film dealing with religious matters is concerned. It is only natural that religious beliefs should penetrate to the depths of the individual's conscience. A contrary religious belief is not only an intellectual outlook with which one disagrees. It can also constitute an outrage to feelings. The atheist can outrage the feelings of the believer. Followers of opposing faiths can outrage one another's feelings. That is the reality of life which a democratic society must accept. It is this very difference which unites us around what we have in common. Thus, a democratic society must recognise that there are outrages against religious feelings. Only in this way can those who have different religious beliefs live together. The solution is not to repress the offensive opinion. Frankfurter J. noted quite rightly that:

"To criticize or assail religious doctrine may wound to the quick those who are attached to the doctrine and profoundly cherish it. But to bar such pictorial discussion is to subject non-conformists to the rule of sects". (Joseph Burstyn, Inc. [27] p. 519).

But nor does the solution tie in repressing all controversial opinions, as that would suffocate the human spirit. The strength of democracy lies in the freedom it accords to the creative person to release what is locked in his heart, to spread his wings and give free vent to his thoughts. "The writer or dramatist may aim, to his heart's content, the whip of criticism or satire at preachers of religion who sin, as did Moliere in 'Tartuffe' or, in our times, Hochhut in 'The Representative'." (Justice Landau in H.C. 351/72 [6], p. 815).

13. The play which is the subject of this petition does, without any doubt, outrage the feelings of Christian believers. My colleague, Justice Maltz, even points to a particularly serious outrage. However, such outrages do not exceed what is permissible in a democratic society, founded on tolerance and pluralism.

During the course of proceedings we asked respondents' counsel whether in her opinion screening of the film would constitute the criminal offence of publishing something which could outrage religious feelings, contrary to section 173 of the Penal Law. She replied in the negative. To her credit she noted, on the contrary, that the film has artistic value, and does not constitute a criminal offence. If to this one adds the fact - as pointed out by my colleague, the President - that the film is being shown in most countries of the world (except for India and Pakistan), including the Christian countries, in some of which there is film censorship, then it is clear that the film's offensiveness is not so serious as to justify the advance banning of its publication in a democratic state which recognises the tradition of freedom of expression and is built on tolerance of opposing opinions. In this connection any outrage committed by the publication of the book or the making of the film should not be taken into account. We are concerned only with outrages to religious feelings by the fact that the film is being shown in Israel. Furthermore, the outrage which must be considered is to the feelings of those who will not see the film, as no-one is obliged to see it. We are, therefore, not concerned here with a captive audience. In such circumstances, the offensiveness of the film does not cross the threshold of "harsh, serious and severe damage".

14. In the light of my conclusion concerning the nature of the damage, I do not need to examine the question of the probability of its occurrence. According to the precedents on this subject the test of probability to be applied in matters concerning the powers of the censor is that of "near certainty." (see H.C. 243/62 [4], H.C. 14/86 [2]). It is not sufficient that there should be "malice" or the possibility - even if reasonable - that the damage could occur. There is also no need for real certainty that the harsh, serious and severe damage should actually materialise. The demand is for a causal relationship of the nature of "near certainty". If, therefore, I thought that in the petition before us the outrage to religious feelings had overstepped the permitted threshold, I would have thought that the causal test existed, as there would be not only a near certainty, but a real and indisputable certainty - that religious feelings had been outraged. I therefore concur with Justice Goldberg's comments.

15. I have, therefore, reached the conclusion that screening the film will indeed outrage the religious feelings of believers, but that the damage is not harsh, serious and severe to the extent that would justify refusing a permit for the showing of the film. On the other hand, the Censorship Board was of the opinion that showing the film would outrage the religious feelings of believers in a harsh, serious and severe manner. Can we, in these circumstances, exchange the Board's discretion for our own? Would that not be non-permissible interference with the exercise of a government authority's discretion? In my opinion it is our right and duty to interfere, in such circumstances, with the Board's exercise of discretion. I discussed this in a previous case in the following words:

"The Board does not have the discretion to choose a possibility which does not contain the elements of near certainty and serious danger. The Board's subjective opinion that the danger is serious and that its occurrence as a near certainty is not relevant. The test of near certainty and serious danger is an objective one. The Court must be satisfied that a reasonable Board was entitled, on the basis of the facts before it, to reach the conclusion that the danger was serious and that its occurrence was a near certainty. To that end the Court has to be satisfied that the Board gave proper weight to conflicting basic principles, that is, to freedom of expression on the one hand and public order on the other hand. "Proper weight" in this case means weight that the Court is of the opinion would be consistent with the requirements of an enlightened democratic society." (H.C. 14/86 [2], pp. 438-439).

The question, therefore, which is before us is a basic constitutional one. It touches on the nature of freedom of expression and its limitations. The responsibility for all these matters rests with the courts. The question before us is not that of choosing between opinions in the field of reasonableness. It is the fixing of bounds for that field itself.

For these reasons I concur with my colleagues that the order nisi should be made absolute.

S. Levin J.: like my distinguished colleague, Justice Barak, I too am of the opinion that the extent of our permissible interference with the decision of the Censorship Board is wide, as long as we are dealing with basic rights. From an examination of the minutes of the Board and of their decision, it transpires that the Board gave great weight to letters from intellectuals who objected to permitting the film to be screened. Some of their reasons centered on the fact that the showing of the film would be extremely offensive to the Christian population of Israel in particular, while others concentrated on the damage which could be caused to Israel itself, although even they did not deny the film's artistic value. For the reasons enumerated by Justice Barak in paragraphs 12 and 13 of his judgment, in particular, I think that the decision of the Board is not well-founded, while the "political" reason - that is, that showing the film would cause damage to Israel- is, to the extent that it served as a prop for the Boards' considerations, invalid per se in my opinion. Respondents' counsel agreed that the showing of the film would not constitute a criminal offence, and I shall, therefore, refrain from expressing an opinion on the question of what the law would be if it transpired that showing the film was indeed a criminal offence.

I concur that the order nisi should be made absolute.

Justice E. Goldberg:

In a clash between two basic values it is essential to assess the "comparative social importance of the various principles" (Justice Barak in H.C. 14/ 86 [2] p. 434) together with the probability, impact, extent and scope of the damage caused by one of them to the other.

The probability test for the risk of the damage's occurring does not, in my opinion, come within the scope of the present case. The need to consider the probability of a risk of damage arises as long as it is not possible to make a factual finding on the basis of evidence. So then we would have to assess the extent of the likelihood of the damage occurring (or not occurring) and we would then hold that the test of "near certainty" would be the proper test for purposes of the Censorship Board's powers, as "the test of' public order would be a consequential test" (H.C. 14/86 [2] above, pp. 430-1).

We would then have to assess the degree of risk that a film might be prejudicial to public order and whether this reaches the level of "near certainty" or whether this degree of certainty exists with respect to the film because "the special power of persuasion in the pictorial material would serve as an effective instrument of incitement" (H.C. 8907/78 [20] p. 278).

But when we can establish in an independent way whether the film outrages religious feelings or (to give another example) if it damages the good name of any person, we do not need to assess the probability of damage being caused. We can perceive with our senses whether or not damage has been inflicted (the extent of the damage) constituting a separate question, as stated below). In our case it would appear that no-one disputes the fact that screening of the film would offend a section of those who believe in the Christian faith.

The central question for us to put forward is, therefore, whether there is an irreconcilable conflict between freedom of expression and public order (as personified by an outrage to religious feelings) which obliges us to seek a solution to "the parallelogram of forces" and find a "balancing formula" between principles; or whether we have to regard this as an "ancillary" conflict and not a "frontal" one between principles, which allows for co-existence, even if not a peaceful one, making the balance "natural" and self-understood.

I do not underestimate the offensiveness to some viewers of the film. But neither the gravity of the offensiveness nor its extent make me question the words of the wisest of all men: "There is no man that hath power over the spirit to imprison the spirit" (Ecclesiastes 8.8[A]).

I concur, therefore, with the judgment of the distinguished President.

Maltz J.:

I approve of the analysis of the legal position established by our caselaw, as summarised in the President's judgment, and with the conclusion he has reached.

In the whole film I found only one scene which I considered would give serious, extreme and rude affront to the religious feelings of Christians. I refer to the imaginary conversation between Jesus and Paul in which Paul says to Jesus: "If you had not been crucified, I would have crucified you myself"'. I weighed up whether it would not be desirable to make the showing of the film conditional upon the excision of this scene. But on second thoughts I came to the conclusion that against the background of the film as a whole this scene would not create a near certainty of endangering public safety or order.

I, therefore, concur with the President's opinion that the film should be allowed to be shown.

Petition allowed and order nisi made absolute.

Dov Peri and Shaul Stratzker appeared for the Petitioners, and Nili Arad, Director of the High Court Division of the State Attorney's Office, appeared for the Respondents.

Judgment given on 15.6.89.

Full opinion:

Weiss v. Inspector General

Case/docket number:

HCJ 100/57

Date Decided:

Thursday, February 13, 1958

Decision Type:

Original

Topics:

Extra-territorial Jurisdiction

Courts

Criminal Law

Enforcement

Abstract:

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

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

Voting Justices:

Landau, Moshe

Primary Author

majority opinion

Olshan, Yitzhak

majority opinion

Sussman, Yoel

majority opinion

Full text of the opinion:

H.C.J 100/57

H.C.J 103/57

IZHAK WEISS

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 100/57

YOHANAN MILLER

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 103/57

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

[February 13, 1958]

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

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

Palestine case referred to:

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

Israel cases referred to:

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

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

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

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

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

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

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

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

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

English cases referred to: -

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

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

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

Rabinovitch for the petitioners.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUSSMAN J. I concur.

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

Order nisi discharged.

Judgment given on February 13, 1958.

1⁾ police Ordinance, section 51:

Employment of the Force as a military force (as amended no. 4 of 1946)

51. (2) The High Commissioner (Minister of police) may make rules for the administration and discipline of the Force or part thereof serving as a military force, and generally for giving effect to the provisions of this section, and for those purposes may by such rules modify or amend the provisions of this Ordinance (other than this section). Subject to the provision of such rules, members of the Force to whom the Proclamation applies shall continue to be subject to the provisions of this Ordinance except so far as those provisions conflict, or are inconsistent, with any provisions of the Army Act for the time being applicable by virtue of the next following subsection.

(Note: A Proclamation may be made by the High Commissioner (now Minister of Police) that the Force or part thereof be a military force, under section 51(1).)

1⁾ Palestine Order in Council, 1922, Art, 43 :

Supreme Court There shall be established a Court to be called the Supreme Court of which the constitution shall be prescribed by Ordinance. The Supreme Court sitting as Court of Appeal shall have jurisdiction subject to the provisions of any Ordinance to hear appeals from all judgments given by a District Court in first instances or by the Court of Criminal Assize or by a Land Court.

1⁾ For the text of Article 46, see p. 64 supra.

1⁾ Criminal Code Ordinance, 1936, section 3 (b) :

3. The provisions of this Code shall be without prejudice to -

(a) .......................................

(b) the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Palestine courts in respect of acts done beyond the ordinary jurisdiction of such courts;

Full opinion:

Weiss v. Inspector General.pdf

Wallace v. Egged

Case/docket number:

CA 3510/99

Date Decided:

Monday, August 6, 2001

Decision Type:

Appellate

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