Education

Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance

Case/docket number: 
HCJ 3429/11
Date Decided: 
Sunday, January 15, 2012
Decision Type: 
Original
Abstract: 

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel as a Jewish and democratic state; and the second,  sub-section 3b(b)(4), referring to an expense which was “in essence” a marking of the day of Israel’s establishment as a day of mourning. A decision to reduce the budget in accordance with this section requires that the Minister of Finance first receive an opinion from a professional team composed of representatives from various ministries, the approval of the minister in charge of the budget item through which the entity received funding, and an opinion from the legal adviser to the Ministry of Finance. In addition, he must also grant the relevant entity a hearing on the matter.    

 

The petitioners are the alumni association of an Arab school in Haifa, which runs various activities that are held at the school, dealing with issues of Arab and Israeli identity; several parents of students in a bilingual Arab-Jewish school, whose goals include education about respect for other cultures and in which activities are held that commemorate both Israeli Independence Day and Nakba events; and an academic who is the proponent of a model/theory that describes Israel as an ethnocracy, rather than as a democracy. All the petitioners argued that they could be harmed by the exercise of the Budget Elements Law’s provisions; the statutory provisions were also challenged on the ground that they effectively constituted a violation of the right to education, collective identity and freedom of expression and of occupation.   

 

Held: Justice Naor held that the petition should be denied on the basis of the ripeness doctrine and because of the availability of an alternative proceeding and remedy.  Because the statutory provisions had not actually been implemented against any of the petitioners or any other parties at all, and because there was therefore no way of knowing how the law would be implemented, if at all, against the petitioners, the Court could not reach an informed decision regarding the constitutionality of the manner and scope of its hypothetical application.  The uncertainty (and consequently, the absence of sufficient ripeness) was heightened by the fact that the law itself prescribed an extensive process of supervision and review before any decision to reduce funding could be implemented. Justice Naor also found that the petition to the High Court of Justice could be denied because of the availability of an alternative proceeding and remedy; once the Law had been implemented, a petition challenging a reduction in funding could be brought in the Administrative Matters Court. An indirect attack on the constitutionality of the Law would also be permissible in that context.  President Beinisch and Vice President Rivlin concurred, with President Beinisch adding that there was no need to decide the matter of the availability of an alternative proceeding and remedy.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

HCJ 3429/11

 

Petitioners                                             1. Alumni Association of the Arab Orthodox School in Haifa

                                                   2. Radwan Badarneh

                                                                    3. Ayman Miari

                                                                    4. Hazar Hijazi

                                                                    5. Ron Shapira

                                                                    6. Arik Kirshenbaum

                                                                    7. Professor Oren Yiftachel

                                                                    8. Adalah – Legal Center for Arab Minority Rights in Israel

                                                                    9. The Association for Civil Rights in Israel

 

                                                                    v.

 

Respondents                                         1. Minister of Finance

                                                                    2. Knesset

 

                                                         .

The Supreme Court sitting as the High Court of Justice

[5 October 2011]

 

Before President D. Beinisch, Vice President E. Rivlin, Justice M. Naor

 

Petitions for an order ­nisi and for an interim order.

 

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel as a Jewish and democratic state; and the second,  sub-section 3b(b)(4), referring to an expense which was “in essence” a marking of the day of Israel’s establishment as a day of mourning. A decision to reduce the budget in accordance with this section requires that the Minister of Finance first receive an opinion from a professional team composed of representatives from various ministries, the approval of the minister in charge of the budget item through which the entity received funding, and an opinion from the legal adviser to the Ministry of Finance. In addition, he must also grant the relevant entity a hearing on the matter.    

The petitioners are the alumni association of an Arab school in Haifa, which runs various activities that are held at the school, dealing with issues of Arab and Israeli identity; several parents of students in a bilingual Arab-Jewish school, whose goals include education about respect for other cultures and in which activities are held that commemorate both Israeli Independence Day and Nakba events; and an academic who is the proponent of a model/theory that describes Israel as an ethnocracy, rather than as a democracy. All the petitioners argued that they could be harmed by the exercise of the Budget Elements Law’s provisions; the statutory provisions were also challenged on the ground that they effectively constituted a violation of the right to education, collective identity and freedom of expression and of occupation.   

Held: Justice Naor held that the petition should be denied on the basis of the ripeness doctrine and because of the availability of an alternative proceeding and remedy.  Because the statutory provisions had not actually been implemented against any of the petitioners or any other parties at all, and because there was therefore no way of knowing how the law would be implemented, if at all, against the petitioners, the Court could not reach an informed decision regarding the constitutionality of the manner and scope of its hypothetical application.  The uncertainty (and consequently, the absence of sufficient ripeness) was heightened by the fact that the law itself prescribed an extensive process of supervision and review before any decision to reduce funding could be implemented. Justice Naor also found that the petition to the High Court of Justice could be denied because of the availability of an alternative proceeding and remedy; once the Law had been implemented, a petition challenging a reduction in funding could be brought in the Administrative Matters Court. An indirect attack on the constitutionality of the Law would also be permissible in that context.  President Beinisch and Vice President Rivlin concurred, with President Beinisch adding that there was no need to decide the matter of the availability of an alternative proceeding and remedy.

Petition denied.

Legislation cited:

 

Budget Foundations Law (Amendment No. 40) 5771 -2011

Administrative Courts Law, 5760-2000

Disengagement Plan Implementation Law, 5765-2005

Civil Wrongs (State Liability) Ordinance (Amendment No. 7), 5765-2005

Public Education Law, 5713-1953

 

Israeli Supreme Court cases cited:

 

HCJ 7190/05 Lobel v. Government of Israel (unreported, 2006) [1]........................... 10

HCJ 731/86 Micro Daf v. Israel Electric Corp. [1987] IsrSC 41(2) 449 [2].............. 13

HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, [1993] IsrSC 47(2) 229 [3]            13

HCJ 991/91 David Pasternak Ltd. v. Minister of Construction & Housing, [1991] IsrSC 45(25) 50 [4]          13

HCJ 2009/07 Klein v. American Friends of Israel Scouts (unreported, 2007) [5].... 13

HCJ 453/84 Iturit Communications Services Ltd. v. Minister of Communications [1985] IsrSC 38(4) 617 [6]               13

HCJ 217/80 Segal v. Minister of Finance [1980] IsrSC 34(4) 429 [7]....................... 13

HCJ 1842/04 Michai v. Ministry (unreported, 2003) [8]............................................... 14

HCJ 1431/05 Orian v. Minister of Transportation (unreported, 2005) [9]................ 14

HCJ 128/09 Basiso v. Minister of Defense (unreported, 2009) [10]............................ 15

HCJ 6556/11 Glickman v. Major-General Sami Turjeman, Commander of the IDF Land Forces (2011) (unreported) [11]         15

HCJ 8276/05 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of Defense (2006) (unreported) [12]  15

HCJ 7052/03 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of the Interior (2006) (unreported) [13].................................................................................................................................................. 16

HCJ 3248/09 Sari v. Minister of Justice, (2009) (unreported) [14]............................. 17

HCJ 6972/07 Lakser v. Minister of Finance (2009) (unreported) [15]....................... 17

HCJ 1468/11 Ben Sa’don v. Minister of Religious Affairs (2011) (unreported) [16] 20

HCJ 2208/02 Salameh v. Minister of the Interior, [2002] IsrSC 56(5) 950 [17]....... 21

HCJ 212/03 Herut National Movement v. Chairman of the Central Committee for the Election of the 16th Knesset [2003] IsrSC 57(1) 750 [18]........................................................................................................................................... 21

HCJ 2426/08 Ben Atar v. State of Israel – Ministry of Transportation (2008) (unreported) [19]       21

HCJ 6715/10 Hina v. State of Israel, Ministry of Defense, Department of Rehabilitation (2010) (unreported) [20]      21

HCJ 2055/02 Sheikh Abed Al Karim Abayet v. Minister of Defense (2002) (unreported) [21]            21

HCJ 1076/07 Maman Eilat Group Ltd. v. Minister of Finance (2009) (unreported) [22]     21

HCJ 6090/08 Berger v. Minister of Justice (2008) (unreported) [23]......................... 21

 

US Supreme Court cases cited

 

Abbot Labs et. al. v. Gardner, 387 U.S 136 (1967) [24]................................................. 15

United Public Workers of America (C.I.O.) et. al. v. Mitchell et. al., 330 U.S. 75 (1947) [25]             18

 

 

 

For the petitioners                             — H. Jabarin, S. Zahar, D. Yakir

 

For respondent 1                              — S. Rotsenker

For respondent 2                              — Dr. G. Blay, E. Yanun

 

 

JUDGMENT

Justice M. Naor

The Budget Foundations Law (Amendment No. 40), 5771 - 2011 authorizes the Minister of Finance to reduce the budget of a supported or financed entity under certain circumstances and after a specific procedure; the reduction may be ordered when it is found that the entity has incurred an expense which is, in its essence: a rejection of the existence of the State of Israel as a Jewish and democratic State, or the marking of Independence Day or the date on which the State of Israel was established as a day of mourning. The procedure to be followed before the reduction can be ordered is that the Minister of Finance must first receive an opinion from specified parties, grant a hearing to the entity and obtain the consent of the minister in charge of the matter. The petition before us is directed against the constitutionality of the provisions of this law.

 

 

 

Background

On 4 January 2009, the Draft Independence Day Law (Amendment – Prohibition of the Marking of Independence Day or the Date of Israel’s Establishment as a Day of Mourning) – 5769-2009 (hereinafter: “the Draft Independence Day Law”) was placed before the Knesset. The amendment sought to anchor the prohibition of any activity or event that refers to Israeli Independence Day as a day of mourning or a day of sorrow. This proposed law was abandoned (passively) and on 6 July 2009 its backers placed before the Knesset the Draft Budget Foundations Law (Amendment – Prohibited Expense) 5769-2009 (hereinafter: “the Draft Budget Foundations Law” or “the Draft Law”). This Draft Law was supported by the Ministers Committee on Legislation, subject to coordination of the legislative processes with the Minister of Justice and the Minister of Finance. Coordination between the various parties led to changes being made in the text of the original Draft Law, after which it passed a first reading in the Knesset. After more changes were introduced in the text in anticipation of the second and third readings, the Knesset, on 23 March 2011, passed the Budget Foundations Law (Amendment No. 40), 5771-2011 (hereinafter: “the Law”). The key issue raised in the petition before us is the constitutionality of the provisions of sections 3b(b)(1) and (4) of the Law. The relevant sections provide as follows, with an emphasis added to those parts whose constitutionality is being challenged:

‘1.  The following will be inserted after s.3a of the Budget Foundations Law, 5745 -1985:

3b.  (a) In this section –

“Entity” – a financed or supported entity, as these are defined in s. 21, and a supported public entity pursuant to s. 3a:

“Expense” – includes a waiver of income.

(b) If the Minister of Finance finds that an entity has incurred an expense which is in its essence one of the items listed below (in this section – “an unsupported expense”), he may, with the consent of the minister in charge of the budget item pursuant to which the entity is financed or supported, and after affording the entity a hearing, reduce the amounts that are to be transferred from the State budget to that entity pursuant to any law:

(1) Rejection of the existence of the State of Israel as a Jewish and democratic state;

(2) Incitement to racism, violence or terror;

(3) Support for an armed struggle or terrorist act, of an enemy state or of a terrorist organization, against the State of Israel;

(4)  Marking of Independence Day or the date of the establishment of the State of Israel as a day of mourning;

(5)  An act of destruction or physical contempt which defiles the State flag or the State symbol;

(c)  No reduction pursuant to sub-section (b) may exceed an amount which is three times the size of the unsupported expense.

(d)     (1) The Minister of Finance may make a decision pursuant to sub-section (b) after obtaining an opinion from the legal adviser to the Ministry of Finance regarding the fulfillment of the provisions of that sub-section, and after he has received the recommendation of a professional team regarding the scope of the unsupported expense; the consequences of the reduction for the entity or for other parties related to it; and the proper amount of the reduction, given all the circumstances of the matter.    

              (2) In this sub-section, the term “professional team” shall mean a team appointed by the Minister of Finance whose members include an employee of the Ministry of Justice, at the recommendation of the Minister of Justice; an employee of the Ministry of Finance; and an employee of the ministry whose minister is in charge of the budget item pursuant to which the entity is financed or supported, at the recommendation of that Minister.

 Arguments raised in the petition

2.    Before responding to the petitioners’ arguments, I wish to briefly present the seven petitioners in this case. Petitioner 1 is a non-profit organization which includes approximately 90 alumni of the Arab Orthodox High School in Haifa (hereinafter: “the School”). Petitioner 1 was incorporated for the purpose of supporting the School and increasing cooperation among its alumni. Each year, Petitioner 1 organizes several activities in various areas, which include discussions of the State’s identity, the status of its Arab citizens and the “Future Vision of the Arabs in Israel” documents. In addition, Petitioner 1 conducts educational activities dealing with Palestinian history and its activities are carried out in the School. Petitioner 1 believes that some of its activities are likely to fall within the framework of those items that constitute grounds for reduction of its budget pursuant to the Law, and that the size of the School’s budget’s will consequently be at risk.

3.    Petitioners 2-6 are parents of students who study in the “Galil” school in the town of Misgav, which is a bi-lingual and bi-national school (hereinafter: “the Bilingual School”) and a formal educational institution that is recognized by the Ministry of Education. It seeks to promote a shared lifestyle as well as education about equality and respect for the cultures of other groups within the society in which the students live. In order to achieve its objectives, the Bilingual School conducts various activities in anticipation of Memorial Day and Independence Day, the purpose of which is to mark both Independence Day and the Nakba events. Petitioners 2-6 fear that the Bilingual School will be forced to restrict its activities and that its abilities to achieve its goals will thus be impaired.  

4.    Petitioner 7 is an academic who developed a model according to which he argues that the Israeli regime is a type of “ethnocracy”. As this model indicates, Petitioner 7 believes that the State of Israel cannot be defined as Jewish and democratic. Petitioner 7 is concerned that the Law will impair the possibility of conducting an academic and public discussion of the model that he has developed, since such a discussion is likely to refer to the negation of the existence of the State of Israel as a Jewish and democratic state. Petitioner 7 is also concerned that the Law will have serious consequences for his writings and publications.   

5.    We now move on to the petitioners’ claims. The petitioners have, as stated, attacked two of the grounds listed in subsection 3b(b). The petitioners argue that the other three grounds set out in the Law for reduction of budgetary support will also create substantial constitutional difficulties in that they restrict freedom of speech. They also see a constitutional difficulty arising from the fact that these sections empower the Minister of Finance to impose measures that are in essence punitive sanctions with respect to actions that are defined as offenses – but without stipulating that a due process proceeding be held in a court to determine that a criminal offense has been committed.  Nevertheless, the petitioners have focused their petition and their constitutional challenge only on the two grounds listed in sections 3b(b)(1) and 3b(b)4.  According to the petitioners, the damage done by these sections is “the most harmful”.

6.    According to the petitioners, the Law harms the historic memory of the Arab minority by allowing the majority to use its power to repress the narrative of the Arab minority with respect to events, facts, feelings and ideologies. According to their argument, there is no difference between the marking of the Nakba, on the one hand, and the non-recognition of the State of Israel or the non-recognition of the self-determination of the Israeli Jews, on the other hand, since the use of the term “Al-Nakba” – which means “the tragedy of all tragedies” – is intended to stress the historic aspect of the tragedy.   They argue that the Law seeks to indirectly deter the occurrence and development of a cultural discussion regarding the concept of “Al-Nakba” and the constitutional definition of the State. According to the petitioners, the scope of the damage is very serious, and the Law “uses vague and unclear terms, which creates considerable uncertainty as to how the Minister of Finance and the courts will interpret its provisions.”

7.    The Petitioners then point to a list of rights that they argue are violated by the Law’s provisions. I will discuss their arguments only briefly, because I see no need to discuss the details more extensively, given my ultimate conclusion regarding the issue raised in the petition. The argument made is that the Law violates the freedom of political, artistic and academic expression. It is argued that the prohibition of political expressions on the basis of their content alone is inconsistent with the “near certainty test” for permitted prohibitions of expression, as established in the case law. They argue further that the Law is likely to violate freedom of artistic expression, which has also been given special broad protection even when real offense is given to the sensitivities of a part of the public, and even when such freedom clashes with official political positions. It is also argued that the violation of freedom of expression is especially sweeping in that a single act which falls within the scope of either of the two challenged grounds for budget reduction, even if only marginal, will be sufficient to justify the imposition of a financial sanction.

8. In addition, the petitioners argue that the Law violates their right to equal treatment because it discriminates on the basis of nationality and on the basis of social or political ideology. According to this argument, there is a serious concern that the Law will prevent Petitioner 1 from carrying out those of its communal and cultural activities that have a cultural-political character – activities that are directed at developing a discussion of the status of Arab citizens and of the historic wrong that has been done to them. In contrast, the Law will have no impact on the alumni organizations of Israeli schools which conduct various activities relating to the identity and Jewish character of the State. The Law will not affect activities directed at commemoration of the Jewish-Zionist narrative, either. It is also argued that the violation of the right of Petitioners 2-6 to equal treatment is reflected in the fact that the bilingual schools such as the school in which these petitioners’ children study will not be able to realize their central and essential objectives – objectives that include the exposure of Jewish and Arab students to the nationalist narratives of groups other than their own. In contrast to this, other special schools will be able to continue their activities that are directed at the achievement of their educational objectives. In addition, it is argued that Petitioner 7 will suffer from discrimination based on his scientific and academic research, and that his position within the academic world is likely to be substantially impaired. In contrast, it is argued, academics who promote undemocratic positions that refer to Israeli Arabs as constituting a demographic threat will continue to maintain their academic status, without any infringement of their work.

9.    The petitioners argue that a budgetary statute that discriminates on the basis of nationality or political ideology through the adoption of a nationalist-ethnic ideology is an unconstitutional discriminatory statute. It is further argued that although the Law is worded in a neutral manner and applies equally to the activities of both Arabs and Jews and to both Arab and Jewish institutions that receive state financing or support, it is clear that the intention is to impact primarily on Arab citizens.

10.  Another argument made is that the Law violates the right to education. The Law will prevent the children of Petitioners 2-6 and others from receiving an education based on the Palestinian nationalist narrative, and is thus in violation of the objective of public education, as such is defined in s. 2(11) of the Public Education Law, 5713-1953. It is also argued that the violation will maintain and even increase the suppression that has developed because of the Ministry of Education’s strict monitoring of the education provided in Arab schools. An additional claim made is that the Law violates the right of the students’ parents to freely choose an educational institution for their children in accordance with their own educational ideology and philosophy.

11.  The petitioners also argue that the Law’s provisions lead to a violation of the right to freedom of occupation for all those who in the framework of their work are involved in a critical examination of the nature of the state as a Jewish state (such as Petitioner 7 and the teachers in the Bilingual School). It is also claimed in this context that Petitioner 7’s right to equal treatment in exercising his freedom of occupation is restricted, as opposed to other academics with political perspectives that conform to the views of the majority.

12.  Finally, the petitioners claim that the Law violates the right of Arab citizens to collective dignity. It is argued that the Palestinian narrative is an integral part of the identity of most Israeli Arabs, and that the attempt embodied in the Law’s provisions to restrict the discussion of this narrative violates a constitutive element of the identity of these Arab citizens. It is also argued that the attempt to prevent opposition and legitimate protest against the values of the state as a Jewish and democratic state violates the collective dignity of the Arab citizens because it prevents them from objecting to the fact of the discrimination to which they are exposed. It is argued that the Law seeks to shape and outline the values and perspectives of the Arab minority, as well as its behavior, by using a tool that is tied to the state budget.

13.  The Petitioners argue that the Law does not comply with the provisions of the limitations clause of the Basic Law: Human Dignity and Liberty. The Law gives the representative of the executive branch broad discretion, in that its provisions do not provide clear criteria that indicate when a budget reduction will be allowed; the Law’s sections are broad, vague, ambiguous and general. It is argued that these statutory provisions do not comply with the tests for primary legislation arrangements as established in this Court’s case law, and that the violation of constitutional rights therefore contravenes the provisions of the Basic Law: Human Dignity and Liberty, which require that any violation either be anchored in a statute or permitted pursuant to a statute. It is also argued that the violation of these constitutional rights does not have an appropriate objective, in that the violation is caused in an arbitrary fashion, it involves political considerations and it penalizes the petitioners in particular and the Arab population in general. It is also argued that the Law has no proper objective because it violates the public interest – an interest which specifically requires protection of the principle of cultural pluralism, freedom of expression, equality, freedom of occupation and dignity. It is further argued that the Law lacks a proper objective because it violates democratic values and indirectly allows the imposition of collective punishment, since the entire group of those benefitting from a particular service may be harmed because of a single act, or because of the act of a single individual. According to the petitioners, in light of the fact that the Law is not a statute as defined in the Basic Law, and because it lacks an appropriate purpose, there is no need to examine the matter of whether it is proportionate, since the Law’s purpose is the starting point for the three-part test for proportionality.

14.  Finally, it is argued that the Law has a “chilling effect” and deters certain activities, because of a concern that such activities will be covered by the Law’s provisions, and will thus lead to the imposition of budgetary sanctions.

The position taken by Respondent 1

15.  Respondent 1 argues that the petition challenges the constitutionality of a law before the manner of its implementation and application has been examined by the authorized parties; Respondent 1 argues further that the petition is based on various extreme scenarios that the petitioners presented, even though the likelihood of their occurrence is completely unknown and it is also unknown whether the Law will in fact apply to them. Respondent 1 therefore argues that it is too early to reach a decision regarding this petition, because as of the current time, the Minister of Finance has not yet been asked to implement the Law in any concrete situation and no interpretative content has yet taken form with respect to his authority pursuant to the Law; and that this petition is thus overly generalized and theoretical. Respondent 1 emphasizes that pursuant to the provisions of the Law, a professional team must be established in order to exercise the granted authority, and the Minister of Finance must receive an opinion from the legal adviser to his Ministry and hold a hearing for the entity regarding which he is considering exercising his authority. In addition, the Law requires that the Minister of Finance obtain the approval of an additional minister (other than himself) – the minister who is in charge of the relevant budgetary item. Regarding this issue, Respondent 1 cites the position that I took in HCJ 7190/05 Lobel v. Government of Israel [1], in which I chose to make use of the “ripeness” doctrine that has been applied in the past in the field of constitutional law. According to this doctrine, a court may refrain from deciding an abstract dispute if there is no clear and complete factual background that has been presented to the court with respect to the issue facing the court.

16.  Respondent 1 offered an additional threshold argument, relating to the legal forum in which the petition should have been brought. The argument is that even if a concrete decision to reduce a budget had been reached pursuant to the Law, the proper forum for the deliberation of the issues raised regarding such a decision would be the Administrative Matters Court, as provided in Item 40 of the First Schedule to the Administrative Courts Law, 5760-2000 (hereinafter: “the Administrative Courts Law”). Respondent 1 argues that this Court cannot take the place of the entity that is authorized pursuant to that law, and issue a forward-looking legal opinion with regard to the manner in which the authority granted in the Law should be exercised.

17.  The argument is also made that the Law, on its face, does not apply to the petitioners, as they do not fall within the Law’s definitions of a “financed entity” or a “supported entity”.

18. In light of the conclusion I have reached, I see no need to respond at length to Respondent 1’s substantive arguments. I will note briefly that Respondent 1 believes that this Court’s intervention would not be justified, as the Law passes the test set out in the limitations clause for a statute’s constitutionality. Respondent 1’s argument is that the Law fits into Israel’s framework of statutes that sustain its existence as a Jewish and democratic state, while preserving the state’s right to protect its basic principles. Respondent 1 also argues that the state has the prerogative to direct the allocation of its budget and not to finance activities the purpose of which is to undermine the basis for its existence. The core principles on which the state is based are a legitimate consideration in terms of the distribution of budgets, and the state may choose not to finance activities that are not consistent with these core principles. In addition, it is argued that the Law establishes a mechanism of restraint, balance and supervision through which decisions about budget reductions are reached. The intention is not to have the Law apply to marginal or minimal activity, but instead only to those activities which in their essence negate the character and existence of the state, including its character as a Jewish and democratic state.

19.  Regarding the petitioners’ claim that there has been a violation of various basic rights, Respondent 1 argues that the Law does not violate freedom of expression. Respondent 1 argues that the supported or budgeted entity retains the right to choose whether or not to carry out those activities that conflict with the grounds for budget reduction that are stipulated in the Law, but the Law allows the Minister of Finance to decide – when dealing with a supported or budgeted entity that engages in such activity – that the state will not finance the entity’s activity that falls within the categories listed in the Law. For this reason, it is also argued that there is no violation of a right to collective dignity. In addition, the Minister of Finance argues that even if there is a violation of freedom of expression, that violation nevertheless complies with the terms of the limitations clause of the Basic Law: Human Dignity and Liberty. Regarding the petitioners’ argument that the Law violates the principle of equality, Respondent 1 argues that the Law applies to any supported or financed entity whose activities are covered by one of the grounds enumerated in the Law. Respondent 1 notes that a claim that the Law may be abused, in that it might be enforced in an arbitrary fashion, is only a theoretical claim. Respondent 1 argues that the claim regarding a violation of the right to education should also be rejected. It is argued in this context that, inter alia, the state may and is entitled to promote those goals that it wishes to emphasize and to budget resources for the purpose of achieving those objectives. In the instant case, the relevant objectives are the goals of public education and the principles underlying the Declaration of Independence. In response to the claim concerning a violation of freedom of occupation, Respondent 1 argues that this is again a remote and theoretical concern – one that is not based on the facts. Respondent 1 argues, at length, that even if there has been a violation of a constitutional right, it is a violation which is permitted pursuant to the conditions set out in the limitations clause.

Response of Respondent 2

20.  Respondent 2 describes at length the reasons that justify a denial of the petition. Some of its claims are similar to those of Respondent 1, and there is therefore no need to repeat them, as they have already been noted above in the discussion of Respondent 1’s claims.

21.  Regarding the right to equality, Respondent 2 argues that this case involves a budget reduction for certain entities, pursuant to the Law, which is carried out on the basis of the relationship between the activities of such entities and the basic principles of the state, and without any connection to the national identities represented by those entities. Respondent 2 also notes that there are Jews who wish to deny the Jewish character of the state, such as Petitioner 7. Respondent 2 argues that the Petitioners’ claim is far-reaching and suggests that any time that the state wishes to promote Zionist or Jewish values, even without discriminating directly against individuals on the basis of their nationalities, it will be seen as discriminating against members of the Arab nationality. Respondent 2 argues further that the state of Israel recognizes its Jewish and Zionist values alongside its democratic values and its constitutional framework. Thus, the granting of a particular position to these values within the framework of the state’s laws is presumptively not an unlawful discriminatory act.

22. Next, Respondent 2 argues that even if the right to education (a right that the petitioners claim is also being violated) is recognized as a constitutional right, this Court has held in the past that the State may determine different levels of financing for educational institutions in accordance with their compliance with the core studies program established by the Ministry of Education; this Court has held that such a determination is neither discriminatory nor a violation of the right to equal education. Accordingly, Respondent 2 argues that even though the petitioners are free to promote a curriculum which is based on the Palestinian national narrative, the State is not required to finance that curriculum.

23. With respect to the claim that there has been a violation of the freedom of employment, Respondent 2 argues that this right is a protective right which is intended to ensure for each individual an area in which he can support himself without interference from others. It is therefore argued that the Law does not violate the right to freedom of employment, as it does not prohibit the employment of teachers or lecturers who wish to promote values that deny the Jewish and democratic nature of the State, and who mark Independence Day as a day of mourning. The Law also does not prevent any individual from teaching content that falls within the definition of such activity. The Law only provides that the State will not participate in the financing of such activities.

Discussion and determination

24.  My position is that at this stage, the petition should be denied without any decision being made regarding the constitutional questions presented to us, and I will suggest to my colleagues that we so hold. I do not deny that the petition before us raises important and fundamental questions and issues. Despite the importance and complexity of these issues, this is not the time to respond to their substance. I will explain myself as follows:  

25. As is known, the power granted to the High Court of Justice pursuant to s. 15(c) and (d) of the Basic Law: The Judiciary is a power that the Court may or may not exercise, in accordance with its own discretion (see: HCJ 731/86 Micro Daf v. Israel Electric Corp. [2], at p. 456; HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, [3], at p. 243; HCJ 991/91 David Pasternak Ltd. v. Minister of Construction & Housing [4], at pp. 58-59; and HCJ 2009/07 Klein v. American Friends of Israel Scouts [5], at para. 11). Over the years, rules have been developed regarding the circumstances in which this discretion may be exercised in the form of the rejection of a petition. These rules do not constitute a numerus clausus, and they can be changed and given new content as needed at a specific time and location (see: HCJ 453/84 Iturit Communications Services Ltd. v. Minister of Communications [6], at p. 620). The rules allow for the rejection of a petition under, inter alia, the following circumstances: when alternative relief is available, when there has been a previous petition or when there may be a theoretical later petition regarding the same matter, when there has been delay or an absence of clean hands on the part of the petitioner, when a petition is overly general, or when the route for legal proceedings has not been fully exhausted, etc. This is not, as stated, a numerus clausus. Justice A. Barak referred to these rules, which qualify as “judicial creations”, in his remarks in HCJ 217/80 Segal v. Minister of Finance [7], at p. 440, in which he noted that they are intended to regulate the pace at which appeals are addressed to the Court.

26.  As noted, the above-mentioned list of grounds for rejecting a petition is not a numerus clausus. In Lobel, the petitioners sought to attack the constitutionality of the Disengagement Plan Implementation Law, 5765-2005 (hereinafter: “the Disengagement Law”) by challenging the section of that law which permitted the imposition of criminal sanctions on parties who were being removed from the Gaza Strip, and who remained in the area after the removal day. An expanded panel of this Court summarily rejected the petition, on the ground that there was an alternate remedy: the constitutional claims could be raised in the framework of a criminal proceeding brought against an individual who had violated the Disengagement Law. Note that in that case, the state, at the end of the day, decided not to prosecute residents who had violated only the provisions of the Disengagement Law. The criminal sanctions were imposed only against those few residents who used violence against the security forces, and who committed additional criminal offenses. The circumstances of that case led me to the conclusion that the petition should be rejected because of the availability of an alternate remedy, and I therefore joined in President Barak’s opinion; however, I also supported a rejection of the petition because the issue it presented was not yet ripe. In my view, there was no reason at that stage to decide an issue of principle in the framework of a direct constitutional attack on the Disengagement Law in the High Court of Justice. And I stress that the ripeness doctrine was not used for the first time in the Lobel opinion cited by the state here. It had already been mentioned in this Court’s earlier case law. Thus, in Segal [7], Justice A. Barak remarked that the grounds established by this Court for a summary dismissal included the ripeness doctrine as well:

‘We may also mention the doctrine relating to an academic or unripe issue, or an issue that is not justiciable. These doctrines attempt to give the court – each from a different perspective – legal mechanisms with which the court can lock its gates when it believes that the particular matter should not be dealt with’ (Segal [7], ibid., at p. 440).

Indeed, from time to time, we encounter petitions that we decide to reject on the grounds that, for various reasons, the questions they present are not ripe for decision. Non-ripeness as a ground for dismissal has been mentioned both in response to petitions relating to administrative cases and, often, in response to petitions relating to constitutional matters. (For examples of petitions that were submitted in connection with administrative cases and were rejected on the grounds that they were not ripe, see the following: in HCJ 1842/04 Michai v. Ministry [8], this Court held that as the competent authority had not yet decided the petitioners’ case, the petition was early and unripe; in HCJ 1431/05 Orian v. Minister of Transportation [9], we rejected a petition that was general and theoretical, and was for that reason held to be unripe for decision; and in HCJ 128/09 Basiso v. Minister of Defense [10], the petitioner asked that she be allowed to return to her home in the Gaza Strip. This Court rejected the petition because we found that the petitioner had just left the country, and that the planned time for her stay abroad had not yet passed; it was therefore held that her petition regarding her ability to return to her home was not ripe for decision. In HCJ 6556/11 Glickman v. Major-General Sami Turjeman, Commander of IDF Land Forces [11], the Court rejected an appeal that was directed, inter alia, at a Chief of Staff Order concerning the service of male and female soldiers together. We held that under the circumstances of that petition, there was no need to study the interpretation of the order or its applications, because a staff team was still working on a study of the subject. In such a situation, it was held, a petition seeking to subject the army’s instructions to judicial review was not yet ripe. For examples in which petitions dealing with constitutional issues have been rejected on the ground that they were not yet ripe, see Lobel [1] and HCJ 8276/05 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of Defense [12], (“Adalah I”) discussed below.

27.  The source of the ripeness doctrine is American constitutional law (see Lobel [1], per Justice Naor, at para. 5). The United States Supreme Court faced the issue in Abbott Laboratories, et. al. v. Gardner [24] at pp. 148-149, when it held that the rationale at the basis of the doctrine is the Court’s need to avoid deciding issues before the time is ripe for the Court to do so:

‘Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’

28. I believe that the circumstances here justify the application of the ripeness doctrine. At this stage, the issue raised by the petition is not yet ripe for a judicial determination, due to the absence of a clear, complete and concrete set of facts – the type of fact pattern that is essential if a judicial determination of the principle of the issue is to be properly made. The importance of a crystallized dispute for the purpose of making a determination regarding a constitutional issue has been discussed by my colleague, Vice President E. Rivlin, in his opinion in HCJ 7052/03 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of the Interior  [13] (“Adalah II”), at para. 6:

‘The deliberation is not fruitful when it takes place too early, before the dispute is known, or when it has not yet crystallized.’

The Minister of Finance has not yet, on any occasion, carried out those sections that the petitioners wish to have stricken, and we cannot know whether, when and in what circumstances the Minister will make use of the powers that these sections confer upon him. The mechanism established in the Law provides that before the Minister of Finance decides to impose the financial sanction, the issue must go through several stages of review and approval. The Minister’s decision will only be carried out in coordination with various other parties, and only after their opinions are obtained. Thus, for example, the Law requires that in order for a financial sanction to be imposed, the minister in charge of the budgetary item through which the entity in question is either budgeted or supported must agree to the imposition of that sanction. Additionally, the budgeted or supported entity that will be affected must be given a hearing before the sanction can be imposed. Furthermore, pursuant to sub-section (d) of the Law, the Minister of Finance can only reach a decision to reduce funding after receiving an opinion from the legal adviser to the Ministry of Finance and only after the specially-appointed professional team has made its recommendation. The Law provides that the professional team will be composed of an employee of the Ministry of Justice, an employee of the Ministry of Finance, and an employee of the ministry whose minister is charged with the budget item through which the entity is either budgeted or supported. I note here that the mechanisms established in the Law were the fruit of various discussions held in the Knesset’s Committee on the Constitution, Law and Justice. As may be recalled, the original draft law placed before the Knesset was the Draft Independence Day Law – a draft law which sought to prohibit any activity or event which includes a marking of Independence Day or a reference to the fact of the establishment of the State of Israel as a “day of mourning” or a “day of tragedy”. This prohibition was accompanied by a penal sanction of up to three years imprisonment. This proposal was abandoned, as stated, and the Budget Foundations Law was tabled in its place. However, the Draft Budget Foundations Law also went through many changes before it was enacted in its final form; for example, Respondent 1’s Response indicates that the definition of a “prohibited expense” was narrowed and it was determined that it would apply only to activities which were in their essence the equivalent of one of the grounds listed in the section and not for every expense that “could”  fit within one of those grounds. The Law also provides for a controlled and careful decision-making process, which I have noted above – a process that includes, as stated, professional opinions, a hearing, and the consent of the minister in charge of the relevant budgetary item. The Law also provides that the budget reduction for the supported or budgeted entity may not be of an amount greater than three times the amount of the expense that has led to the imposition of the sanction. (Originally, the amount of the reduction was up to twenty times that amount, which was then reduced to ten times the amount of the expense).

29. Thus, the Law requires that a long road must be travelled before the sanction created by the Law can be imposed. I will not take any position at this stage regarding the mechanism established in the Law or regarding the Law’s constitutionality. However, at this stage, before the Law has been implemented and when the mechanism established therein has also not yet entered into operation, I do not believe that there is any reason to engage in speculations and estimations regarding the manner in which the power granted in the Law will be exercised. As I noted in Lobel [1], a well-informed judicial determination must be tightly connected to concrete facts that are presented in the case before the court, even if a constitutional question has arisen. (See: Lobel [1], at para. 6. See also HCJ 3248/09 Sari v. Minister of Justice [14], at para. 3; HCJ 6972/07 Lakser v. Minister of Finance [15], at para. 26). In this case, there have not yet been any incidents in which a question has arisen regarding the application of the Law, its interpretation or its consequences. The situation was similar in Adalah I [12], in which this Court was asked to decide the issue of the constitutionality of the Civil Wrongs Ordinance (State Liability) (Amendment No. 7), 5765-2005. With regard to the provisions of that law, President (emeritus) A. Barak held, and his colleagues concurred, that s. 5c of the law was invalid. However, it is his discussion of s. 5b of that law that is relevant to our discussion here. Regarding that section, it was held that the issue presented in the petition was not yet ripe. Some of the remarks made in that case are also pertinent here:

‘The question of the constitutionality of s. 5b of Amendment 7 arose before us in a marginal manner only . . . We were not presented with any cases in which the question of its application arose. All this reflects upon the question of the constitutionality of the section. In these circumstances, as long as these questions have not been properly addressed, the time has not come to decide the constitutionality of s. 5b. Much depends on the manner in which it is implemented and the interpretation that is given to the provisions of the section. . . . Naturally, the parties have the right to raise their arguments concerning the constitutionality of s. 5b as it will arise in specific cases. The civil courts are competent, in specific tort cases, to examine arguments concerning the constitutionality of the section. In the circumstances of this case, we see no reason to decide the question of the constitutionality of s. 5b of Amendment 7. (Emphasis in the original – M.N.) (Ibid. [12], at para. 31).  

30. The United States Supreme Court dealt with a similar issue in United Public Workers of America (C.I.O.) et. al. v. Mitchell et. al. [25]. In that case, the plaintiffs, who were all federal employees, challenged a statute that prohibited their participation in political activities. Except for one employee, none of the plaintiffs had actually violated the statute, but they had all declared their intention to become involved in political activity of the type that had been prohibited by the statute. The Court held that other than the issue presented by the single plaintiff who had already violated the statute, there was no legal question that could properly be decided. The Court noted the employees’ concern that if they did violate the law they would lose their jobs, but held that because the employees had not yet violated the statute, this was a purely hypothetical-speculative concern which did not justify a judicial determination or the granting of judicial relief:

‘The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other’ (ibid. [25], at p.89-90).

Justices Douglas and Black presented the minority view, and wrote that the dispute could be adjudicated. Justice Douglas wrote that the plaintiffs did not need to wait until they actually lost their jobs. To remove doubt: I also believe that there can be cases in which even in the absence of a concrete foundation for a dispute, it would be wrong to postpone the adjudication of a particular petition until a specific factual background – one that can cause substantial harm to the petitioners – has arisen, and in such cases it would be proper to decide a question even if it has not yet become fully ripe. However, even if we agree with the minority view in United Public Workers [25], the outcome in our case would not change. In the instant case, even if the Law’s provisions had been put to use, the impact on the petitioners would not be immediate. As stated, because of the complex decision-making mechanism prescribed by the Law, a multi-staged process separates the initial decision by the Minister of Finance and its actual implementation. In any event, if the Minister does exercise his power pursuant to the Law and such exercise is likely to harm some of the Petitioners, the option of initiating legal proceedings remains open. It should also be noted that one element of the mechanism established in the Law is the holding of a hearing for an entity that is likely to be harmed.

31. As stated, not every petition that lacks a concrete factual foundation should be summarily dismissed on the ground that it is unripe. Each case must be judged on its merits. As noted, the lack of ripeness is a threshold ground for dismissal, and a court may exercise discretion in deciding whether or not to rely on it. It is certainly possible that on some occasions, even in the absence of a concrete factual background, a court should nevertheless address the issue raised in the petition. We can draw an analogy to the fact-pattern of United Public Workers [25], and find that the Court’s intervention at an early stage would be justified if the circumstances are such that if a petitioner is asked to wait for his case to become ripe, he will pay too heavy a price. Thus, for example, if the Draft Independence Day Law had been enacted as law, and if the petitioners had sought to attack its constitutionality, this Court might have responded to the petition even before use had been made of its provisions in a concrete case. This judicial response would have been needed because of the harsh criminal sanction that was contained in Draft Independence Day Law (three years imprisonment).  However, this does not mean that whenever a petition challenges the constitutionality of a law which contains a criminal sanction, this Court must address it despite its lack of ripeness. (Regarding this matter, see Lobel [1], opinion of Justice Naor.) As I have noted, the Court must exercise its judgment in each case, based on the specific circumstances that are presented.

32.  Moreover, the Response submitted by Respondent 1 indicates that we cannot be certain that the Law will apply to the petitioners in this case. In addition, even if the Law does apply to the petitioners, there is still uncertainty regarding the degree to which it will apply to them or to others, and in what circumstances it will apply. The use of the ripeness doctrine does not mean that the courthouse doors are permanently closed before the petitioners or before others, or that the Court will not deliberate the issue in the future. It may be that in the future – if and when the Law’s provisions are put into use and the petitioners or others feel that they have been harmed by that use – the petitioners will be able to address the competent tribunals who will adjudicate their claims. In such a situation, and on the basis of a concrete factual background, the disputed issue will certainly be more coherent, and this will make the deliberation more efficient; the Court will be able to render a wiser decision, based on concrete facts (see HCJ 1468/11 Ben Sa’adon v. Minister of Religious Affairs [16]). Nevertheless, it may also be the case that the passage of time will render a deliberation of a petition irrelevant, as the petitioners’ concerns may never be realized (compare, Lakser [15]) – either because the Minister of Finance may fail to exercise the power conferred upon him by the Law, or because the provisions will be exercised in a manner that does no harm to the petitioners; other factors may allay the petitioners’ original concerns as well. However, in the current situation, the operative significance of the Law is not yet clear and it is not yet the right time for us to respond to the substance of the claims (compare Ben Sa’adon [16]).

33.  I wish to add the following to these remarks: the ripeness doctrine is, as stated, one of the tools that this Court can use to establish the pace at which petitions are brought before it. It allows the Court to regulate, to a certain degree, the flow of matters submitted to it and to refrain from deciding matters when the Court believes that there is no justification at that particular time for determining the issues presented (see Segal [7], supra). The Court has discretion to determine the circumstances in which it will apply the doctrine, in the framework of the power the legislature has conferred upon it in s.15 of the Basic Law: The Judiciary. When it weighs the various considerations for and against the deliberation of a particular petition, the Court must also consider the need to organize its time, given that the time available to us is a finite resource. When this Court is faced with a petition that is particularly urgent, we work night and day to decide the issue that is before us. However, when the submission before us is a petition that is not yet ripe – a petition that does not include a clear, complete and concrete set of facts – the Court must consider whether a theoretical adjudication is justified at that particular stage.

34.  Furthermore, I believe that alongside the above-mentioned threshold ground for dismissal based on a lack of ripeness, the petition here should also be denied because an alternative proceeding and remedy are available. In Lobel, I noted that the ripeness doctrine is sometimes combined with other threshold grounds for dismissal, such as the availability of an alternative proceeding and remedy. This is because the ripeness required for an informed determination concerning the constitutional issues is likely to take shape in the context of the pursuit of an alternative remedy (see ibid., at para. 8). That is the case here. In the framework of the amendment of the Law, the Knesset also amended the Administrative Matters Court Law, such that the list included in First Schedule of that law was expanded to include a new item 40; this item confers on the Administrative Courts the power to adjudicate petitions dealing with the reduction of financial support pursuant to a decision by the Minister of Finance. It is black-letter law that the granting of power to the Administrative Matters Courts does not negate the power of this Court (see HCJ 2208/02 Salameh v. Minister of the Interior [17], at p. 953; HCJ 212/03 Herut National Movement v. Chairman of the Central Committee for the Election of the 16th Knesset [18], at p. 756). However, the choice to petition the Administrative Matters Court is a choice to take the intended main road. Of course, the petitioners may also raise their claims regarding the constitutionality of the Law in the context of a petition to the Administrative Matters Court. The authority of the High Court of Justice to adjudicate claims regarding unconstitutionality does not prevent a deliberation of such claims in an “ordinary” court (see HCJ 2426/08 Ben Atar v. State of Israel – Ministry of Transportation (2008) (unreported) [19],  per Justice Naor, at para. 3; HCJ 6715/10 Hina v. State of Israel, Ministry of Defense, Department of Rehabilitation [20], at para. 5; HCJ 2055/02 Sheikh Abed Al Karim Abayet v. Minister of Defense [21], at para. 5; HCJ 1076/07 Maman Eilat Group Ltd. v. Minister of Finance [22]; Adalah I, supra). A party who believes that he has been harmed by the implementation of a law may thus turn to the Administrative Matters Court by filing a petition. In the context of such a petition, the party may use an indirect attack to present arguments regarding the constitutionality of the particular law. It has already been held that trial courts can adjudicate a particular litigant’s matter through an indirect attack, even if the litigant can, in principle, submit a petition to the High Court of Justice. This has also been allowed in cases in which the “indirect attack” was brought by the litigant who initiated the proceeding, and did not use it as a defensive claim (see: HCJ 6090/08 Berger v. Minister of Justice [23], at para. 5; Hina, supra; Lakser [15], at para. 29). The ability to present their claims in the form of an “indirect attack” also gives the petitioners the ability to pursue an alternative remedy (see: Hina, supra; Berger [15]; Orian, supra; and see:  Sheikh Abed Al Karim Abayet; and see: Lobel [1], per President A. Barak, at para. 12, and per Justice Naor, at para. 1). And furthermore: in the context of an administrative petition, it will be possible to ask for temporary relief in the form of an order for the non-implementation of the sanction.

35.  The existence of an available alternative proceeding and remedy in this case reinforces the conclusion that this petition is not ripe for decision by this Court. If a petition does need to be filed, it will be filed in the Administrative Matters Court, and to the extent necessary, it will be based on a concrete factual background, and not on hypothetical scenarios, as is the case in the petition which is before us now. The concrete facts will also allow that court to decide whether or not a concrete interpretation of the Law justifies the particular decision reached by the Minister of Finance, or whether the constitutional question needs to be decided.

36.  In conclusion: the petition before us contains complex questions that are of public importance, but at this stage, there is no need to render a judicial decision concerning the claims that have been presented. The petition is not ripe because of the absence of a concrete factual background – and we must have a concrete factual background in order to reach a decision regarding the various issues raised by the petitioners. In addition, if the petitioners or any of them or others are harmed as a result of the Law’s implementation, they have an alternate proceeding and remedy available to them in the Administrative Matters Court, where they will also be able to file an application for an order nisi preventing the implementation of the Law with respect to them.

37.  I propose to my colleagues that the petition be denied without an order regarding expenses.

President D. Beinisch

I agree with my colleague Justice M. Naor that the petition before us raises complex questions which are of public importance. I stress that these questions can, in certain circumstances, reach the core of the problems that currently divide Israeli society. However, I accept my colleague’s position that the petition before us is not ripe for judicial review. At a declarative level, the Law raises, on its face, difficult and complex questions, but the constitutionality of the Law is largely dependent on the interpretive content that is given to its provisions, and the nature of this content will only become clear when the Law is implemented by the relevant authorities.

Before a judicial determination can be made regarding the circumstances to which the Law will apply and the scope of its implementation, the executive needs to be allowed to set the boundaries and procedures for its implementation. The petitioners have painted various scenarios of hypothetical possibilities, and we cannot yet determine the likelihood that any of these scenarios will be realized. We do not know to whom they will apply, whether they will indeed relate to the petitioners, or what event will justify the implementation of the Law. We must therefore leave for a later time a deliberation of the constitutionality of the Law’s provisions – if indeed there is a need for such at the stage when they are put to concrete use, if such a stage is reached, and if the chosen form of implementation passes through the relevant filters established in the Law itself.

As of now, I also do not see a need to decide the question of the availability of an alternative remedy, and whether, when the time comes, a decision reached pursuant to the Law should be deliberated in the Administrative Matters Court or in this Court. That question will also be decided in the future, on the basis of the particular circumstances that arise.

I therefore join in the result reached by my colleague.

 

Vice President E. Rivlin

I join in the judgment of my colleague Justice M. Naor. I believe that under the circumstances, we are far from the concrete stage of the  implementation of the law. This is because according to the law itself, a long way must be travelled between the occurrence of an event mentioned in the Law and the actual imposition of a sanction – and there are many obstacles to overcome over the course of this distance. Furthermore, it is not at all certain that the Law will actually apply to the petitioners. With respect to constitutional judicial review, this natural selection is the result of the absence of factual circumstances which raise the constitutional question. In foreign systems which implement concrete factual examinations, this natural selection precedes constitutional review. Such examination often renders the actual constitutional review redundant.

For these reasons and for the reasons described by my colleague Justice M. Naor and those listed in the judgment written by my colleague President Beinisch, I join in their decisions.

 

Decided as per Justice M. Naor

10th of Tevet 5772.

15 January 2012.

Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs

Case/docket number: 
HCJ 7245/10
Date Decided: 
Tuesday, June 4, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

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: 
Primary Author
majority opinion
Author
concurrence
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

                                   

                                                v.

 

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: 

                                                v.

 

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                                             

 

                                                v.

 

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

  1. 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

  1. 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

  1. 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

  1. 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.
  2. 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.
  3. 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).
  4. 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” ”)).
  5. 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”)).
  1. 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”)).
  2. 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)).
  3. 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”)).
  4. 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”)).
  5. 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).
  6. 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).
  7. 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”)).
  8. 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)).
  9. 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.
  10. 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)).

  1. 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.
  2. 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.
  3. 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

  1. 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.
  2. 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)).
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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

  1. 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.
  2. 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.
  3. 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).
  4. 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)).
  5. 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).
  6. 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).
  7. 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.
  8. 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.
  9. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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. 
  10. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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).
  7. 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

  1. 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?
  2. 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).
  3. 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.
  4. 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?
  5. 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.
  6. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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)).
  7. 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)).
  8. 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

  1. 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.
  2. 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.
  3.  

Justice E. Hayut:

  1. 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.
  2. 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.
  3. 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.                

  1. 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)).                   

  1. 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.

  1. 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.       

  1. 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.
  2. 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.
  3. 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.
  1. 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).

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Yated v. Ministry of Education

Case/docket number: 
HCJ 2599/00
Date Decided: 
Wednesday, August 14, 2002
Decision Type: 
Original
Abstract: 

Facts: The Special Education Law, 1998, provides that the State must provide special education, as per the definition of that term in the statute. Petitioners are the parents of children with special needs who are integrated into the regular educational system. They claim that that State does not provide financial aid to aid them with the expense of educating their children. Petitioners assert that this infringes their children’s fundamental rights, discriminates against them, and violates the provisions of the Special Education law.

 

Held: The Court held that the right to education is a fundamental right. This right is recognized by sources of Jewish law, the law of the State of Israel, international law, and the laws of foreign countries. The Court interpreted the provisions of the Special Education Law, 1998, in light of this fundamental right. It held that the State had an obligation to provide special education, free of charge, to those children with special needs who have been integrated into the regular educational system.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

                

                                      HCJ 2599/00

1.                            Yated – Non-Profit Organization for Parents of Children with Down Syndrome

2.            54 Parents (Anonymous)

v.

1.            The Ministry of Education           

2. The Minister of Education      

 

The Supreme Court Sitting as the High Court of Justice

[August 14, 2002]

Before Justices T. Or, D. Dorner, E. Levi

 

Petition for an order nisi. Petition accepted.

Facts: The Special Education Law, 1998, provides that the State must provide special education, as per the definition of that term in the statute. Petitioners are the parents of children with special needs who are integrated into the regular educational system. They claim that that State does not provide financial aid to aid them with the expense of educating their children. Petitioners assert that this infringes their children’s fundamental rights, discriminates against them, and violates the provisions of the Special Education law.

 

Held:. The Court held that the right to education is a fundamental right. This right is recognized by sources of Jewish law, the law of the State of Israel, international law, and the laws of foreign countries. The Court interpreted the  provisions of the Special Education Law, 1998, in light of this fundamental right. It held that the State had an obligation to provide special education, free of charge, to those children with special needs who have been integrated into the regular educational system.

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty

 

Statutes Cited:

Special Education Law, 1998

Compulsory Education Law, 1949

Rights of the Student Law, 2000

Equal Rights for People With Disabilities Law

Special Education Law (Amendment No.6), 2002

 

Treaties Cited:

The International Covenant on Economic, Social and Cultural Rights of 1966

Convention on the Rights of the Child, 1989

 

Israeli Supreme Court Cases Cited:

[1]          HCJ 7715, 1554/95 Shoharie Gilat v. The Minister of Education and Culture, IsrSC 50(3) 2

[2]          HCJ 4541/94, Miller v. Minister of Defense, IsrSC 49(4) 94

[3]          HCJ 7081/93, Botzer v. Municipal Council of Maccabim-Reut, IsrSC 50(1) 19

[4]          FH 10/69, Boronovsky v. The Chief Rabbis of Israel, IsrSC 25(1) 7

[5]          HCJ 153/87, Shakdiel v. The Minister for Religious Affairs, IsrSC 42(2) 221

[6]          HCJ 953/87, 1/88, Poraz v. Mayor of Tel-Aviv/Jaffa, IsrSC 42(2) 309

[7]          CrimA 131/67 Kamier v. The State of Israel, IsrSC 22(2) 85

[8]          CA 522/70, Alkotov v. Shaheen, IsrSC 25(2) 77

[9]          CrimA 3112/94, Abu Chassan v. The State of Israel, IsrSC 53(1) 422

 

[10]        HCJ 1113/99 Adallah – The Legal Center for the Rights of the Arab Minority in Israel v. The Minister for Religious Affairs, IsrSC 54(2) 164

[11]        HCJ 507/81 Abu Hatzeira v. The Attorney-General, IsrSC 35(4) 561

 

Foreign Constitutions Cited:

[12]        Constitution of Belgium

[13]        Constitution of South Africa

[14]        Constitution of Spain

[15]        Constitution of Ireland

 

United States Cases Cited:

[16]        Oberti v. Board of Educ., 995 F.2d 1204 (2d Cir. 1993)

[17]        Daniel RR v. State Bd. Of Educ., 874 F.2d 1036 (5th Cir. 1989)

 

Israeli Articles Cited:

[18]        Gershon Gontovnik, The Constitutional Law: Direction of Development after the Constitutional Revolution, 22 Iyunie Mishpat 129 (1999)

 

Jewish Law Sources Cited:

[19]        Maimonides, Laws of Torah Study, Ch. 1,2

[20]        Babylonian Talmud, Tractate Nedarim 81b

 

For petitioners—Omri Kabiri, Ori Kaidar

For respondents— Dana Briskman, Office of the State Attorney

 

JUDGMENT

Justice D. Dorner

This petition raises the following questions: Are children with special needs only entitled to free special education in a special education institution? Or is the State also under an obligation to provide free special education to children with special needs who have been integrated into the regular education system?

The Statutory Provisions

1. Section 4 of the Special Education Law, 1988 provides that “[t]he State is responsible to provide special education under this law.” Sections 3 and 7 of the statute regulate the placement of children with special needs in educational institutions. Pursuant to section 3 of the law:

A child with special needs is entitled to free special education in a special education institution in his area of residence. Where an institution is not located in the child’s area of residence, the local education authority must provide such special education, in a suitable institution, as close as possible to the child’s area of residence, even if this institution is located within the jurisdiction of another municipal authority.

Section 7 of the law further provides:

(a) The Placement Committee shall determine the eligibility of a child with special needs for special education and his placement in a special education institution.

(b) In determining the placement of a child with special needs, the Placement Committee shall prefer placement in a recognized educational institution which is not a special education institution.

(c) Where the Placement Committee has decided on the placement of a child with special needs in an institution as stated in subsection (b), the Committee shall recommend the treatment or special lessons that shall be given in that institution.

Section 1(a) of the law defines the terms “special education,” “special education institution,” and “recognized educational institution” in the following manner:

“special education” – systematic instruction, teaching and treatment given under this law to a child with special needs, including physiotherapy, speech therapy, occupational therapy, and treatments as per other professional disciplines that shall be determined, all in accordance with the needs of the child with special needs;

“special education institution” – a recognized educational institution in which special education is provided, including a class in a recognized educational institution in which special education is provided;    

“recognized educational institution” – as defined in the Compulsory Education Law, 1949.

Facts, Procedure, and Claims

2. Yated, a registered non-profit organization, together with 54 parents of children with Downs syndrome, asks that we order the State to provide free special education to children who, though having special educational needs, have been found suitable for integration in regular educational institutions. Petitioners claim that the authorities are required by the Special Education Law to finance special education in any educational institution where a child is placed. They claim that the approach expressed in section 7(b) of the law requires the Placement Committee to prefer the placement of children with special needs in a regular educational institution. Furthermore, pursuant to the policy of the Ministry of Education, children with special needs should, wherever possible, be placed in the regular educational system and also be given additional educational assistance. Petitioners explained that the Ministry of Education, though it encourages such integration, does not provide financial aid. As such, the financial burden falls on the parents. As such, parents who are unable to bear these expenses are forced to transfer their children to special education institutions, despite the fact that these children have been found suitable for integration into the regular educational system.

Petitioners referred us to the State Comptroller’s Report. This report examined the special education framework for 2001 and concluded that the budgetary framework, as set forth above, was inadequate. Report No. 52B of the State Comptroller (2001) noted that the Ministry of Education’s interpretation of the law was that there was no entitlement to receive free special education within the regular education framework. The Report noted that this interpretation found expression in the Ministry’s guidelines and in the allocation of resources. Special education institutions received monies as per the services to which their pupils were entitled. In contrast, the budgetary allocation for the integration programs did not suffice to meet the needs of the integrated pupils. The Report also stated that, in recent years, the number of hours allocated by the Ministry of Education has been inadequate to meet the needs of the integrated students. Moreover, a large majority of the monies of the Special Education Department is directed to special education frameworks; only a small part thereof is directed to integration. The Report concluded by stating that the limited resources allocated to the integration program do not meet the needs of the children in the program. Under these circumstances, the economic and psychological burden of integration falls on the children’s parents, who are forced to finance the services independently. Since most families lack such resources, the integration options for many children are limited.

This was the background for petitioners’ claim that the policy of the Ministry of Education violates the right to education – a fundamental right. They further alleged that this policy infringes the fundamental right to equality. This is because it discriminates between parents whose children’s special education needs are paid by the Ministry of Education and between parents who are forced to bear these costs independently. Furthermore, they claim, the policy also discriminates between those children integrated into regular classes – as their parents can bear the expenses involved – and those children placed in special education institution solely due to their parents’ inability to bear those expenses.

3. In its response, the State did not dispute the pedagogical advantages of integrating children with special needs into regular educational institutions, and that the policy of the Ministry of Education was to encourage such integration. As part of this policy, since 1996 the Ministry of Education has even implemented programs for children with special needs who have been integrated into the regular education system.  The Minister of Education appointed a public committee in 2000, which noted the importance of giving preference to integration within the regular education system, as provided by the Special Education Law. The Committee also noted the inadequacy of the resources allocated towards such integration. Internal ministerial committees were appointed to implement the recommendations of the public committee. These determined that the regular education system should be granted monies for additional integration hours and personnel trained in special education. They further determined that those special education students studying within the regular education system should receive the services provided by the law, as available resources allow.

The State claims that, subject to budgetary pressures, significant resources are allocated towards integration. Even so, the State contended that the clear import of section 3 of the law is that the right to free special education, which is conferred by section 4 of the law, can only be realized in an institution for special education or in a special education class within a regular institution. The actual extent of assistance granted to children with special needs in the regular education system is subject to the discretion of the Placement committee. The State claimed, however, that the Placement Committee is not authorized to provide assistance for all “special education,” as per the broad definition of that term in the law. They further argued that, pursuant to section 7(b) of the law, the State is under no statutory obligation to provide such assistance. This is because the decisions of the Placement Committee are only recommendations; their realization is contingent upon the resources actually available to the State.

The Right to Education

   4. The right to education has long been recognized as a basic human right. The right is anchored in the Universal Declaration of Human Rights of 1948. Article 26 of this Declaration provides that every person has the right to education and that education must be free, at least in the elementary and fundamental stages. The International Covenant on Economic, Social and Cultural Rights of 1966 was also ratified by Israel in 1991. This declared in article 13 that education should be directed to the full development of the human personality, and that it should strengthen the respect for human rights and fundamental freedoms. It also determined that elementary education should be compulsory and freely available. See XXXI Treaties of Israel 1037, at 205. The right to education is also anchored in articles 28 and 29 of the Convention on the Rights of the Child, 1989. See XXXI Treaties of Israel 1038, at 221.

   The right to education is also anchored in numerous constitutions, such as the Belgian Constitution (article 24) [12], the South African Constitution (article 29) [13], the Constitution of Spain (article 27) [14], and the Irish Constitution (article 42) [15]. The German Constitution and the constitutions of most of the states of the United States establish the government’s responsibility to provide education for its citizens.

  5. In Judaism the right to education and the obligation to educate are fundamental, and are deeply rooted in Judaic sources. The traditions of scholarship and diligence which have characterized Judaism for thousands of years are firmly grounded in a variety of obligations under Jewish law. Education and study were seen as being of equal value to all other religious commandments combined. The best students were directed into education and teaching, and the teachers were mandated to facilitate equal education for all, so as to avoid discrimination against the poor. See Maimonides, Laws of Torah Study, Ch.1 [19]. In this context the Babylonian Talmud states: “[b]e heedful of [do not neglect] the children of the poor, for from them the Torah goes forth.” See Babylonian Talmud, Tractate Nedarim 81b [20].

The obligation of education was not only imposed on individuals. It was the responsibility of the entire community. The community was responsible for ensuring the education of all children whose parents could not take care of them. The community had to provide this critical service and make it equally available to all persons. It was the community that bore the burden of the consequences of the failure to provide education. This was Maimonides’ ruling on the matter:

In every country, district and town we should arrange for study classes for the children. A city which does not have schools for its children is excommunicated until arrangements for classes are made.

See Maimonides, Laws of Torah Study, Ch. 2 [19].

6. Shortly after its establishment, with the enactment of the Compulsory Education Law, 1949, the State of Israel delineated the scope of its obligation to ensure the rights of its citizenry to education. This law sets out an arrangement for compulsory education for every boy and girl until the age of 15, as well as the State’s responsibility to ensure the provision of such education. More recently, the right of children to education in Israel was anchored in the Rights of the Student Law, 2000. The purpose of this law is to determine the principles for the rights of the student in the spirit of human dignity and the principles of the United Nations Convention on the Rights of the Child.

Case law, too, recognized the right to education as a fundamental right. Justice Theodor Or made the following comments regarding the importance of this right:

One cannot exaggerate the importance of education as a social tool. This is one of the most important functions fulfilled by the government and the State. Education is critical for the survival of a dynamic and free democratic society. It constitutes a necessary foundation for every individual’s self-fulfillment. It is essential for the success and flourishing of every individual. It is crucial to the survival of society, in which people improve their individual well-being and thus contribute to the well-being of the entire community.

HCJ 7715, 1554/95 Shoharei Gilat v. Minister of Education and Culture, at 24 [1].

The right to free education is also an expression of the principle of equality. It enables every child to realize their innate talent and potential, to integrate into society and to progress therein, irrespective of their parents’ socio-economic status.

Even so, to date, the question whether the right to education is included in the right to human dignity, as defined in sections 2 and 4 of the Basic Law: Human Dignity and Liberty, has yet to be definitively resolved. Indeed, Justice Or contended that the right to education was not included in the right to human dignity. See HCJ Shoharei Gilat, [1] at 26. But this was a solitary view, and the other two justices preferred to leave the question open. Id. at 34.

Discrimination in the exercise of the right to education, if occasioned on the basis of group affiliation, may indeed be regarded as degradation that violates the right to human dignity. Compare HCJ 4541/94 Miller v. Minister of Defense, [2] at 131-32. By contrast, unequal treatment occasioned by political, administrative, or budgetary reasons is not degrading, and does not, therefore, violate human dignity. For our purposes, discrimination against children with special needs, though rooted in their group affiliation, is motivated by budgetary considerations. As such, the question of whether such discrimination violates human dignity is not unequivocal and I see no need to answer it. Petitioners did not claim that the law should be annulled because it violates the right to human dignity. Their claim was rather that the law should be interpreted and applied in light of the right to education. Indeed, the basic right to education, as established by statute, our case law, and international law, is of independent validity, and has no necessary connection to the right to human dignity prescribed by the Basic Law: Human Dignity and Liberty. See Gershon Gontovnik, The Constitutional Law: Direction of Development after the Constitutional Revolution, 22 Iyunei Mishpat 129, 132-47 (1999) [18].

 

The Right to Special Education

7. The right to special education is a derivative of the right to education. Children with special needs are not able to exercise their right to education unless they receive special education that addresses their needs. Accordingly, the signatory States to the Convention on the Rights of the Child recognized the right of children who are physically or mentally disabled to enjoy full and decent lives in conditions that ensure dignity, promote self-reliance and facilitate their active participation in communal life. See section 23 of the Convention. In order to ensure the protection of these rights, the Convention provides:

Party States recognize the right of the disabled child to special care. Party States shall encourage and ensure the extension, subject to available resources, to the suitable child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.

Children with special needs are entitled to an education suitable for their needs; this right is recognized in most of the countries around the world. For example, in the United States, the Individuals with Disabilities Education Act, 20 USCS § 1400 et seq. provides:

The purposes of this title are:

(1) (A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;

Many States have also recognized the importance of integrating people with special needs generally and children in particular into regular frameworks, and have created statutory arrangements for such integration. Thus, the Disabilities Education Act provides, in section 1412(a), that preference shall be given to placing children with special needs in the regular education system:

5. LEAST RESTRICTIVE ENVIRONMENT-

(A) [States must establish procedures to ensure] to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

See also Oberti v. Board of Education, 1204 F. Supp. 995 (2d Cir. 1993) [16]; Daniel R.R. v. State Board of Education, 874 F. Supp. 2d 1036, 1049 (5th Cir.1989) [17].

In a similar vein, section 6(a)(2) of the Equal Rights For People With Disabilities Law of 1998 provides that “the exercise of right and the grant of services to a person with disabilities shall be carried out … within the framework of the services granted and intended for the general public, after making such adjustments as may be required under the circumstances….” We ourselves ruled that the integration of the handicapped in the regular fabric of community life is intended to protect the dignity and the liberty of such persons, by ensuring equality and participation in society. HCJ 7081/93 Botzer v. Municipal Council of Maccabim-Reut, [3] at 19. This is the background for the interpretation of the Special Education Law.

Interpretation of the Law

8. As stated above, the questions raised by this petition are: Is the right to special education conferred by the Special Education Law limited to special education provided in separate institutions for special education (as argued by the State)? Alternatively, does this right extend also to special education provided to children studying in the regular education system (as argued by petitioners)?

Our presumption is that statutes are interpreted in a manner commensurate with the basic values of the legal system. As such, our interpretations must accord with the principle of equality. See, for example, FH 10/69 Boronovsky v. The Chief Rabbis of Israel, [4] at 35; HCJ 153/87 Shakdiel v. The Minister for Religious Affairs, [5] at 275; HCJ 953/87, 1/88 Poraz v. Mayor of Tel-Aviv/Jaffa, [6] at 320-29. Similarly, statutory interpretation must harmonize with the right to education, including the right to special education.

Another rule of interpretation is the presumption that the norms adopted by the State should be in accord with the norms of international law by which the State is bound. According to this presumption, all rules will, wherever possible, be interpreted in a manner consistent with the norms of international law. See CrimA 131/67 Kamier v. The State of Israel, [7] at 80; CA 522/70 Alkotov v. Shaheen, [8] at 80; CrimA 3112/94 Abu Chassan v. The State of Israel, [9] at 430 (Landau, J.).

These interpretive presumptions may be rebutted only when the language of the statute, or its particular purpose as specified in the law, cannot be reconciled with the general values of the legal system or with the international norm. See Poraz, at 329-30 [6]; Kamier,[7] at 112.

9. For our purposes, the Special Education Law is intended to provide special education free of charge to any child with special needs, in order to ensure that he fulfills his potential and that he integrates into society. See also the Explanatory Notes to the Special Education Law Bill, 1988. The notes point out that special education is intended to aid integration into society and ensure the full development of the innate potential – physical, intellectual, and emotional – of each student. This purpose conforms with and gives expression to the right to education, the principle of equality, and the international conventions ratified by the State of Israel.

Section 7 of the law, which discusses special education in a regular educational institution, does not specifically provide that such education must be funded by the State, as it provides in section 3 regarding special education in separate institutions and classes. However, in view of the rights to education and to equality, the principles of international law, as well as the purpose of the law as described above, the necessary conclusion is that the funding duty of the State also applies to the assistance required for a child with special needs integrated into a regular educational institution.

Until now, the State has been guided by a discriminatory interpretation, which leads to an unreasonable result. The Special Education Law prescribes two paths for the provision of special education. The first path is within the separate framework of special education. The second path is within the regular educational framework. In the latter path, children receive assistance as determined by the Placement Committee in accordance with their needs. It is implausible that the Knesset would have arbitrarily decided to limit the State’s duty to provide free special education to only one of these statutory frameworks. This is especially true in light of the undisputed fact that the regular framework has substantial advantages.

Furthermore, it is unacceptable that parents of children with special needs should waive their children’s right to integration within the framework of regular education solely due to financial difficulties. This would undermine the very heart of substantive equality. The aspiration for such equality is manifest in the goal to provide equal opportunities for every child in Israel. When children with special needs are sent to frameworks for special education rather than the regular education framework – solely due to financial reasons – these children are deprived of this equal opportunity. Such discrimination is unacceptable.

10. The State’s claim – that the duty of assistance under section 7 of the law is narrower than the duty set out by the definition of special education – is unacceptable. The provision regarding the recommendation for separate assistance is the natural result of placing a child with special needs in a regular educational framework. In such a case, it is the Placement Committee’s duty to determine the type of assistance the child requires. This determination is classified as a “recommendation,” not because the State is released from its duty to provide the assistance, but rather because flexibility is required in implementing the recommendation. This implementation must consider the evolving needs of the particular child.

The Remedy

11. A purposive interpretation of the law requires that the state implement it in accord with the principle of equality. Discharge of this duty requires an equal budgetary allocation for all the frameworks providing special education. In this context, a distinction must be made between the current budget and future budgets, beginning with the next fiscal year.

As for the future: it is clear that it is incumbent upon the Ministry of Education, with the assistance of the Ministry of Finance, to allocate its budget in a manner that implements the law as interpreted by this judgment. The Supreme Court has elucidated the nature of this obligation in the context of cemeteries, which are the responsibility of the Ministry for Religious Affairs:

In all of its actions, the Ministry for Religious Affairs, like any public body, must be guided by the principle of equality; as such it must adhere to this principle already in the preparatory stages of the draft budget for the coming year. At this stage the workers of the Ministry, together with the workers of the Ministry of Finance, may adopt one of two main routes: The first is for the Ministry for Religious Affairs to stipulate the total amount designated for cemeteries of all religions in the draft budget itself. The Ministry for Religious Affairs will then divide that amount between the cemeteries of the different religions, naturally on the basis of equal allocation. The second route is for the Ministry for Religious Affairs to designate, in the draft budget, different amounts to the cemeteries of different religions.

HCJ 1113/99 Adallah – Legal Center for the Rights of the Arab Minority in Israel v. The Minister for Religious Affairs, [10] at 182 (Zamir, J.)

Similarly, in our case, the State must allocate its budget for the coming year in a manner that implements the right to education on the basis of equality. This can be done by the allocation of one global sum for educational expenses, to be subsequently divided up on an equal basis. Alternatively, this right can be realized by making a separate allocation, within the framework of the draft budget itself, of sums designated for the education of these children in institutions of special education as well as in regular schools.

 And as for the present year: the appropriate remedy when human rights are violated is to compel the authorities to undo this breach immediately, even if this involves amending the budget structure. Such was the ruling of this Court in HCJ Adallah, [10] at 185-86:

Now it may well be that the Ministry for Religious Affairs has already decided on its budgetary allocation for cemeteries for the present year; it may even have notified the particular bodies who are to receive the funds, and they would have certainly planned their activities for the year on the basis of that notification. Indeed, some of the money may already have been transferred, pursuant to such notification. Nonetheless, and despite the possible difficulty, the Ministry can still, and indeed, must uphold the principle of equality between the different cemeteries. This applies even at this stage of the year, regardless of any additional administrative burdens and any additional funding that may be required for the cemeteries. If indeed there is a need for additional funding, the Ministry for Religious Affairs must take measures (with the assistance of the Ministry of Finance, if required) to obtain it. Such measures may be achieved by economizing in other sections of the Ministry, by digging into the reserves of the Ministry, or by any other manner.

This is the rule, but in the present case it would be inappropriate for us to issue a rigid order, one that applies to the current fiscal year. For we fear that, as a result of the current dire economic straits in which the State finds itself, a renewed budgetary allocation would adversely affect those children with special needs currently being educated in special education institutions. In many cases the situation of these children is more acute than that of those in regular educational institutions, and it is not appropriate that the realization of the rights of the latter be at the expense of the former. Even now, however, the State should, wherever possible and at least partially, attempt to provide funding for the education of children with special needs in the regular educational institutions.

 

I therefore propose that the petition be accepted in the sense that it will be declared that the State has not discharged its statutory duty to provide free special education for children placed in regular educational institutions; that it must quickly adopt the measures necessary for it to come into compliance with the statutory requirements; and that it must comply with these requirements no later than the preparatory stages of the budget for the coming fiscal year, all subject to the restrictions of section 7(e) of the law. I also suggest that the State should bear petitioners’ costs, in the sum of NIS 15,000.

Justice E. Levi

I agree.

Justice T. Or

1. Petitioners suffer from Down Syndrome and, as such, they require special treatment and guidance in school. As with all other children of compulsory education age, each of them is entitled to free special education, pursuant to section 6 of the Compulsory Education Law, 1949. Our concern is whether they are also entitled to receive “special education” free of charge in a regular school. Petitioners assert that this right is conferred by statute. The State claims that the statute confers that right only to children with special needs who are studying in a special education institution, and not to those studying in a regular framework.

Like my colleague Justice Dorner, I also believe that the State is obligated to provide free special education (within the statutory limitation, see infra para. 10) to children with special needs who have been integrated into the regular framework of a recognized educational institution, and not only to children with special needs who have been integrated into a special education institution. In my view this is the 

necessary conclusion to be drawn from the provisions of the Special Education Law, 1988.

2. The Special Education Law is concerned with providing special education to children with special needs. Section 1(a) of the law sets out the following definition of a “child with special needs:”

“child with special needs” – a person between the ages of three and twenty one who has limited ability for adaptive behavior and is in need of special education.

The special education required by the child with special needs is also defined in section 1(a) of the law:

“special education” – systematic instruction, teaching and treatment given under this law to a child with special needs, including physiotherapy, speech therapy, occupational therapy and treatments as per additional professional disciplines that shall be determined, all in accordance with the needs of the child with special needs;

The import of these two definitions is that a child with special needs is not only a child who receives special education in the framework of a special education institution, but also a child who has been integrated into a regular recognized educational institution.

3.            According to the statute, a child with special needs may be directed by the educational authorities to one of two kinds of institutions. The first is a special education institution, defined by section 1(a) of the law as “a recognized educational institution in which special education is provided, including a class in a recognized educational institution in which special education is provided.” The second is a recognized educational institution, though not a special education institution, in which the child is integrated into a regular class. Placement Committees are authorized to place the child in either one of these frameworks. These committees were established pursuant to the statute, which prescribed the manner of their appointment, their composition, and their powers. See sections 5-13 of the law. The law also established an Appeal Committee, to which appeals can be made against the decisions of Placement Committees.

Recently, section 7(A1) was added to the law, and it provides for the possibility of placing a child with special needs in a special education institution even without a referral from the Placement Committee. See Special Education Law (Amendment No.6), 2002. Similarly, a child with special needs may be placed in a regular class even without a referral from the Placement Committee. Referrals by the Placement Committee, however, remain the principle manner of placement.

4. Section 7(b) of the law sets forth guidelines for the Placement Committee. It provides:

In determining the placement of a child with special needs, the Placement Committee shall prefer placement in a recognized educational institution which is not a special education institution.

These guidelines are directed towards the best interests of the special needs child. From the perspective of such a child, a regular study framework is preferable, if integration is possible. This is the position of the education authorities, of the Ministry of Education, and of the special committee established by the Minister of Education, the Margalit Committee. This recommendation is also consistent with the purpose of the law, which is to accommodate, as far as possible, the integration of children with special needs into society. This purpose is set out by section 2 of the law, which provides that:

2. The aim of special education is to advance and develop the skills and ability of the child with special needs, to improve his physical, intellectual, and emotional behavior, and to impart knowledge, skills and habits, and to facilitate his integration in both society and the workforce.

For our purposes, however, the important factor is that section 7(b) regards all children referred by the Placement Committee to the framework of regular education as “children with special needs.” Such children are those who require “special education” as defined by the law, namely those children who require systematic instruction and teaching as provided by the statute, in accordance with their needs, within the definition of “special education” in the law.

5. The conclusion from all of the above is that placement of a child with special needs – whether in a special education institution or as an integrated child in a regular educational institution – is regulated by the law; and that “special education” is provided to both categories: both to the integrated child with special needs as well as to the child with special needs who learns in a special education institution.

6.            It is against this background that section 4(a) of the law must be read. This section provides that “[t]he State is responsible for the provision of special education pursuant to this law.” This section must be interpreted to provide that it is the State’s responsibility to provide special education free of charge. As stated above, “special education” within the meaning of the law means special education provided for children with special needs. This applies regardless of whether such education takes place within a special education institution or within an institution for regular education. The term “pursuant to this law” in the concluding part of section 4(a) directs the interpreter of the law, first and foremost, to the definitions in section 1(a) of the law. As we observed above, these definitions designate special education for every child with special needs. Second, it directs him to the special arrangements of the statute concerning the manner of providing special education, which I will discuss below. I should also note that section 4(a) comes in addition to the provisions of section 3 of the law, which provides that a child with special needs studying in a special education institution is entitled to receive free education in that institution. Such education must, to the extent possible, be located near his place of residence.

This interpretation of section 4(a) is preferable to the alternative interpretation that the section only identifies the body that has responsibility for providing the special education which, pursuant to section 3(a), must be provided free of charge to those learning in a special education institution. The interpretation is preferable because it conforms with the interpretative principles elucidated by my colleague, Justice Dorner, especially the principle that a statutory provision must, whenever possible, be interpreted in a manner that does not discriminate. Justice Barak dwelled on this point in HCJ 507/81 Abu Hatzeira v. The Attorney-General, [11] at 561, 585:

A fundamental principle, which serves as a legislative purpose of all acts of the legislative body, is the principle of equality before the law …. One must therefore presume and interpret legislative acts as being intended to realize this purpose and not to contravene it

This is also true in our case. The interpretation that section 4(a) provides for free special education for all children with special needs accords with the principle of equality, and also accords with the general purpose of special education, as defined by the law itself. As such, this is the appropriate and correct interpretation of the section.

7.            The current statutory arrangements regarding the two educational frameworks are not set out in the same amount of detail. The statutory arrangement concerning special education institutions is comprehensive. See chapter 4 of the statute. By contrast, the arrangement for the studies of integrated children is not detailed to the same extent. Nonetheless, the definition of “special education” in section 1(a) of the law makes it clear that special education must be adjusted to the needs of every child, including children integrated in the regular educational system. The definition even articulates the assistance that must be provided to all children in special education. Furthermore, section 7(c) instructs the Placement Committee as follows:

Where a Placement Committee has decided on the placement of a child with special needs in an institution as defined in subsection (b), the Committee shall recommend the treatment or special lessons that he shall be given in that institution.

In other words, the law even regulates the procedure to be adopted by the Placement Committee when it recommends extra support for an integrated student. This arrangement is only partial, and does not touch on the details of the study program. In practice, as things currently stand, institutions for regular education in which children with special needs are studying must adjust their syllabus to the needs of those children.

The current absence of a statutory arrangement regulating the development of a syllabus for integrated children is undesirable. The legislature is aware of the problem and, at this time, steps are being taken to amend the law and add a chapter that regulates the development of a syllabus for integrated children. In December 2001 a bill was tabled in the Knesset, entitled “Special Education (Integration of Children with Special Needs into Regular Frameworks) Law, 2001.” This bill adds Chapter D1 to the statute, entitled “The Integration of a Child with Special Needs into the Regular Education System.” Section 20B of the bill provides:

An integrated child shall be entitled, within the framework of his studies in a regular institution, to additional systematic instruction and teaching, and to special services set out in this statute;

The amendment, however, does not affect the issue of free special education, to which integrated children are entitled under section 4(a) of the law.

8.            In its arguments against this interpretation of section 4(a) the State relies primarily on the provisions of section 7(c) of the law. The State claims that the fact the Placement Committee can only recommend the treatments or lessons that are to be given to the integrated child indicates that the integrated child does not have a right to receive such treatments and lessons in the framework of the regular institution in which he is to study.

I concur with my colleague Justice Dorner; a different interpretation must be given to this provision. The latter does not purport to resolve the question of whether treatments and lessons required for integrated children are to be provided free of charge. For, as stated above, section 4(a) of the law answers that question. Section 7(a) is only intended to charge the Placement Committee with the duty of specifying what it considers to be the needs of the child. The Placement Committee examines and assesses the child’s condition and may deem it appropriate to refer him to the regular education framework. Accordingly, and having regard for the Committee’s knowledge of the particular circumstances of the child concerned, it is only natural that it be charged with informing the institution to which the child is referred regarding that child’s special needs. The fact these provisions are limited to the Committee’s recommendation regarding lessons and treatments does not derogate from the integrated child’s right to receive free “special education,” as defined by the statute. This right to special education is granted by other sections of the statute. It is not limited by the particular fact of the child’s placement in an institution for regular education. Nor is it limited by the fact that the Placement Committee’s opinion regarding the special education required by the child is only a recommendation.

9. It should be added that, in their response to the petition, respondents noted that they recognize the importance of the integration of children with special needs in regular education frameworks. They further mentioned that the Ministry of Education makes every effort to use the resources at its disposal in order to advance the interests of children in integrated frameworks. In respondent’s words:

There are guidelines for the teacher to develop individualized educational programs which take into consideration the specific learning difficulties of every student.

The principle of equality mandates the provision of tools for the integration of children with special needs into the framework of regular education. The principle requires equality between children with special needs in regular educational frameworks, and between children with special needs in special education frameworks. It also requires the provision of equal opportunities to children, regardless of any special needs they may have.

This is also the import of the Equal Rights for People with Disabilities Act, 1998, whose goal it is to integrate persons with disabilities into society.

I mention this fact in order to clarify that, even before this judgment, the Ministry of Education did not ignore the needs of integrated children, and made efforts to locate resources in order to provide financial aid. It is now clear, however, that the Ministry is obligated to provide free special education for all children with special needs. 

10. The legislature was aware of the budgetary ramifications of the implementation of the law. Section 7(e) deals with this problem and establishes a mechanism for a “budget increase” in favor of special education. The section provides:

The Minister of Education, with the approval of the Minister of Finance, shall, with respect to each academic year, fix a budget for an increase in the number of persons entitled to special education. The Minister of Education shall determine the number of entitled persons that the Placement Committee may approve for each academic year.

The existence of a “budget increase” mechanism attests to the real problem confronting those dealing with special education: the resources at their disposal do not enable the provision of free education for all children with special needs. This being the case, the Ministers are required to determine, on an annual basis, the quota for those entitled to special education. From now on, the Ministers will also have to include integrated children in the “budget increase” section. And, as clarified in the judgment of my colleague, Justice Dorner, this applies to the next budgetary year.

 

 

 

Based on all of the above, I concur with the opinion of my colleague, Justice Dorner.

 

Decided as per the opinion of Justice Dorner.

August 14, 2002

Supreme Monitoring Committee for Arab Affairs in Israel and others v. Prime Minister of Israel

Case/docket number: 
HCJ 11163/03
Date Decided: 
Monday, February 27, 2006
Decision Type: 
Original
Abstract: 

Facts: The government adopted a decision to establish ‘national priority areas’ in outlying parts of the country. These areas were defined in a map that was attached to the government decision. The towns and residents of these areas were given benefits, including in the field of education. The petitioners attacked the legality of the government decision on the ground of discrimination, since hardly any Arab towns were included in the national priority areas. The respondent argued that the criterion for determining the national priority areas was purely geographic, that there was no intention to discriminate against Arab towns and that there were simply very few Arab towns in the most outlying parts of the country in the north and south. The respondent also argued that other measures had been adopted to improve education in Arab towns.

 

Held: (President Barak) The government decision should be set aside because it was discriminatory in its result. Discrimination may occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. The discriminatory outcome is sufficient to set aside the government decision.

(Vice-President M. Cheshin) The decision to create ‘national priority areas’ is in essence a primary arrangement. Primary arrangements can only be made by the legislative branch, the Knesset, and not by the executive branch, the government. Therefore the creation of the ‘national priority areas’ was ultra vires.

 

Petition granted.

Voting Justices: 
Primary Author
majority opinion
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concurrence
majority opinion
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concurrence
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Full text of the opinion: 

HCJ 11163/03

Supreme Monitoring Committee for Arab Affairs in Israel

and others

v.

Prime Minister of Israel

 

 

The Supreme Court sitting as the High Court of Justice

[27 February 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, S. Joubran

 

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

 

Facts: The government adopted a decision to establish ‘national priority areas’ in outlying parts of the country. These areas were defined in a map that was attached to the government decision. The towns and residents of these areas were given benefits, including in the field of education. The petitioners attacked the legality of the government decision on the ground of discrimination, since hardly any Arab towns were included in the national priority areas. The respondent argued that the criterion for determining the national priority areas was purely geographic, that there was no intention to discriminate against Arab towns and that there were simply very few Arab towns in the most outlying parts of the country in the north and south. The respondent also argued that other measures had been adopted to improve education in Arab towns.

 

Held: (President Barak) The government decision should be set aside because it was discriminatory in its result. Discrimination may occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. The discriminatory outcome is sufficient to set aside the government decision.

(Vice-President M. Cheshin) The decision to create ‘national priority areas’ is in essence a primary arrangement. Primary arrangements can only be made by the legislative branch, the Knesset, and not by the executive branch, the government. Therefore the creation of the ‘national priority areas’ was ultra vires.

 

Petition granted.

 

Legislation cited:

Basic Law: Freedom of Occupation, s. 2.

Basic Law: Human Dignity and Liberty, ss. 1A, 8.

Basic Law: the Government, 5728-1968, s. 29.

Basic Law: the Government, 5752-1992, s. 40.

Basic Law: the Government, 5761-2001, ss. 1, 3, 32.

Basic Law: the Knesset, ss. 1, 4, 5.

Budget Principles Law, 5745-1985, s. 40(a).

Compulsory Tenders Law, 5752-1992, s. 3A(a)(3).

Council of Higher Education Law, 5718-1958, s. 25B.

Development Towns and Areas Law, 5748-1988, ss. 1, 3, 4(a), 5, 6, 7, 8, 9, 10, 12, 13-18.

Encouragement of Capital Investments Law, 5719-1959, s. 40D.

Encouragement of Research and Development in Industry Law, 5744-1984, s. 28(c).

Free Manufacturing Areas in Israel Law, 5754-1994, ss. 18, 19.

Government and Justice Arrangements Ordinance, 5708-1948, s. 7(a).

Natural Disaster Victims Compensation Law, 5749-1989.

Palestine Order in Council, 1922-1947, art. 5.

State Economy Arrangements (Legislative Amendments for Achieving Budgetary Goals) Law, 5759-1999, s. 4(2).

Student Rights Law, 5761-2000.

Transition Law, 5709-1949, s. 1.

 

Israeli Supreme Court cases cited:

[1]        HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

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

[3]        HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [2003] IsrSC 57(3) 31.

[4]        HCJ 240/98 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [1998] IsrSC 52(5) 167.

[5]        HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[6]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[7]        HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social Affairs [1998] IsrSC 52(3) 630.

[8]        HCJ 6698/95 Kadan v. Israel Land Administration [2000] IsrSC 54(1) 258.

[9]        EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.

[10]     HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[11]     HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [1996] IsrSC 50(3) 2.

[12]     HCJ 421/77 Nir v. Be’er Yaakov Local Council [1978] IsrSC 32(2) 253.

[13]     HCJ 7374/01 A v. Director-General of Ministry of Education [2003] IsrSC 57(6) 529.

[14]     HCJ 4363/00 Upper Poria Board v. Minister of Education [2002] IsrSC 56(4) 203.

[15]     HCJ 7351/03 Rishon LeZion Municipal Parents Committee v. Minister of Education (not yet reported in Hebrew); [2005] (2) IsrLR 1.

[16]     HCJ 693/03 Marciano v. Minister of Finance (not yet reported).

[17]     HCJ 727/00 Committee of Heads of Arab Local Councils in Israel v. Minister of Building and Housing [2002] IsrSC 56(2) 79.

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

[19]     HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [2000] IsrSC 54(2) 164.

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

[21]     HCJ 3792/95 National Youth Theatre v. Minister of Science and Arts [1997] IsrSC 51(4) 258.

[22]     HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

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

[24]     HCJ 1000/92 Bavli v. Great Rabbinical Court [1994] IsrSC 48(2) 221.

[25]     HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[26]     HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[27]     HCJ 2814/97 Supreme Education Monitoring Committee v. Ministry of Education [2000] IsrSC 54(3) 233.

[28]     HCJ 6488/02 National Board of Heads of Arab Local Councils in Israel v. Committee of Directors-General (not yet reported).

[29]     HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[30]     HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[31]     HCJ 2313/95 Contact Linsen (Israel) Ltd v. Minister of Health [1996] IsrSC 50(4) 397.

[32]     CA 4275/94 Tel-Aviv Stock Exchange Ltd v. A.T. Management of Torah Literature Database Ltd [1996] IsrSC 50(5) 485.

[33]     HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [1993] IsrSC 47(5) 832.

[34]     HCJ 154/98 New General Federation of Workers v. State of Israel [1998] IsrSC 52(5) 111.

[35]     HCJ 9232/01 Noah, the Israeli Federation of Animal Protection Organizations v. Attorney-General [2003] IsrSC 57(6) 212; [2002-3] IsrLR 225.

[36]     HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[37]     HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

[38]     HCJ 5128/94 Federman v. Minister of Police [1994] IsrSC 48(5) 647.

[39]     HCJ 8600/04 Shimoni v. Prime Minister (unreported).

[40]     HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9] IsrLR 567.

[41]     HCJ 5062/97 Association of Insurance Appraisers in Israel v. State of Israel [2001] IsrSC 55(1) 181.

[42]     HCJ 2632/94 Degania A v. Minister of Agriculture [1996] IsrSC 50(2) 715.

[43]     HCJ 5018/91 Gadot Petrochemical Industries Ltd v. Government of Israel [1993] IsrSC 47(2) 773.

[44]     HCJ 35/62 Bachar v. Minister of Defence [1962] IsrSC 16 806.

[45]     HCJ 313/63 Haramati v. Director of Property Tax [1964] IsrSC 18(2) 356.

[46]     HCJ 381/91 Gross v. Ministry of Education and Culture [1992] IsrSC 46(1) 53.

[47]     LCA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables Ltd [1998] IsrSC 52(4) 289.

[48]     CA 167/47 Minkovitch v. Fisztner [1948] IsrSC 2 39.

[49]     CA 108/59 Pritzker v. Niv Ltd (in liquidation) [1960] IsrSC 14 1545.

[50]     BAA 663/90 A v. Bar Association Tel-Aviv District Committee [1993] IsrSC 47(3) 397.

[51]     CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[52]     CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[53]     HCJ 5503/94 Segal v. Knesset Speaker [1997] IsrSC 51(4) 529.

[54]     LCA 7678/98 Benefits Officer v. Doctori (not yet reported).

[55]     LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

[56]     HCJ 6845/00 Niv v. National Labour Court [2002] IsrSC 56(6) 663.

[57]     HCJ 7351/95 Nevuani v. Minister of Religious Affairs [1996] IsrSC 50(4) 89.

[58]     HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.

[59]     HCJ 606/78 Awib v. Minister of Defence [1979] IsrSC 33(2) 113.

[60]     HCJ 302/72 Hilo v. Government of Israel [1973] IsrSC 27(2) 169.

[61]     HCJ 287/91 Cargal Ltd v. Investment Centre Administration [1992] IsrSC 46(2) 852.

[62]     HCJ 222/68 National Groups Registered Society v. Minister of Police [1970] IsrSC 24(2) 141.

[63]     HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

[64]     HCJ 6971/98 Paritzky v. Government of Israel [1999] IsrSC 53(1) 763.

[65]     CA 733/95 Arpal Aluminium Ltd v. Klil Industries Ltd [1997] IsrSC 51(3) 577.

[66]     HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructure [2002] IsrSC 56(6) 25.

[67]     CrimA 53/54 Eshed Temporary Transport Centre v. Attorney-General [1954] IsrSC 8 785.

[68]     HCJ 1539/05 Mashlat Law Institute for the Study of Terror and Assistance of Terror Victims v. Prime Minister (not yet reported).

[69]     HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[70]     HCJ 113/52 Sachs v. Minister of Trade and Industry [1952] IsrSC 6 696.

[71]     HCJ 2740/96 Chancy v. Diamond Supervisor [1997] IsrSC 51(4) 491.

[72]     HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 746.

[73]     HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[74]     HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[75]     HCJ 8569/96 Federation of Working and Studying Youth v. Minister of Education [1998] IsrSC 52(1) 597.

[76]     HCJ 363/71 Dagan Flour Mill Ltd v. Minister of Trade and Industry [1972] IsrSC 26(1) 292.

[77]     HCJ 198/82 Munitz v. Bank of Israel [1982] IsrSC 36(3) 466.

[78]     HCJ 366/81 Association of Tour Bus Operators v. Minister of Finance [1983] IsrSC 37(2) 115.

[79]     HCJ 49/83 United Dairies Ltd v. Milk Board [1983] IsrSC 37(4) 516.

[80]     HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

[81]     HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [1994] IsrSC 48(5) 441.

[82]     HCJ 28/94 Zarfati v. Minister of Health [1995] IsrSC 49(3) 804.

[83]     HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 358; [2004] IsrLR 1.

[84]     HCJ 6671/03 Abu-Ghanem v. Ministry of Education [2005] IsrSC 59(5) 577.

[85]     HCJ 869/92 Zvilli v. Chairman of Central Elections Committee for Thirteenth Knesset [1992] IsrSC 46(2) 692.

 

Canadian cases cited:

[86]     Re Language Rights under Section 23 of the Manitoba Act, 1870 (1985) 19 D.L.R. (4th.) 1 (S.C.C.).

 

Jewish law sources cited:

[87]     Malachi 2, 10.

 

For the petitioners — H. Jabareen.

For the respondent — D. Briskman, R. Kedar.

 

 

JUDGMENT

 

 

President A. Barak

The government of Israel decided to define national priority areas in Israel. The residents in these areas receive benefits in various fields that are regulated by the government, including the field of education. The question before us is whether this government decision — in so far as it concerns the benefits in the field of education — should be set aside for discriminating against the Arab residents of the State of Israel.

National priority areas

1.    For many years government ministries have had the practice of granting benefits to various towns on the basis of the determination that they are located in ‘national priority areas.’ The basis for these benefits was introduced in a government decision on 24 January 1993 with regard to a reclassification of development towns and development areas. The government decided that ‘the premise for determining national priority areas is the government policy of population distribution, changing national priorities and absorbing immigration in these areas’ (para. a.1 of the decision). The decision determined two different classifications of national priority areas — ‘national priority area A’ and ‘national priority area B’ — and these were demarcated on a map that was attached to the decision. In national priority area A the maximum benefits are given in all fields, whereas in national priority area B benefits are given which are smaller or at most equal to those given in national priority area A. It was also decided that the government would not give any town or area greater benefits than those given in national priority area A, and that any change in the national priority areas would require government approval. And indeed, over the years, several government decisions that made changes to the national priority areas were adopted.

2.    An additional government decision with regard to the national priority areas was adopted several years later on 15 February 1998. This was decision no. 3292 (hereafter — decision no. 3292). This decision revised the map of national priority areas and the list of towns included in the national priority areas A and B (para. b of the decision). It was decided to cancel the classification of towns that were defined with a separate permanent status to their surrounding area and to make them conform to the existing status of that area (para. c of the decision). Notwithstanding, it was decided that a list of towns (Carmiel, Upper Nazareth, Kiryat Gat, Kiryat Malachi, Migdal HaEmek and Acre) would continue to receive benefits in the field of education like those given in national priority area A, for a period of two years. A similar town-oriented status was also given to several towns for the purpose of benefits granted by other government ministries. It was also decided to give benefits, like those given in national priority area A by the Ministry of Education, to towns in the Druze and Circassian sectors (para. f of the decision). Together with all of these, the government decided that the Ministry of Education should formulate a plan for dealing on a town-oriented basis with towns requiring support and strengthening in education, and for towns in the Arab sector, and that the resources saved as a result of the changes in the classification of towns in the priority areas would be used as a budgetary source for financing this plan (para. e of the decision). Following government decision no. 3292, the original petition was filed in this court.

The original petition

3.    The original petition was filed on 5 May 1998 by three organizations that are active in advancing the rights of the Arab sector in Israel: the Supreme Monitoring Committee for Arab Affairs in Israel; the Supreme Monitoring Committee for Arab Educational Affairs in Israel and Adalah Legal Centre for Arab Minority Rights in Israel (HCJ 2773/98). The petition argued that decision no. 3292 should be set aside. The petition included several parts and sought several alternative forms of relief. The joint basis for all of these was that the government decision is not lawful for several reasons: first, it was argued that the government did not have any power to adopt — by means of a government decision — a norm of such significant scope and application. This matter fell only within the jurisdiction of the Knesset. Second, it was argued that the decision that was adopted, even if it was intra vires, was unlawful, since it was tainted with discrimination. According to the petitioners, the government decision did not rely on any criteria whatsoever for classifying the towns, and it ignored the main purpose underlying the classification of the towns, which is the strengthening of weak towns with a low socio-economic status. The petitioners sought to highlight the claim of discrimination by means of the following figures: decision no. 3292 classified seventeen towns from an area without national priority as a national priority area A, without giving a single Arab town a priority classification. The decision transferred eleven towns from national priority area B to national priority area A, without including among them a single Arab town. By contrast, the list of towns that lost a status of a national priority area included 14 Arab towns (out of a total of 34 towns). In addition, the government granted entitlement to benefits in the field of education to many towns, without including the Arab sector in the arrangement, even though this sector is most in need of assistance in this field. According to the petitioners, the criteria for determining the national priority areas were neither clear nor consistent, and in any case they were not applied in an equal manner. In so far as the criterion was geographic, Arab towns near Jewish towns were excluded from the priority areas; in so far as the criterion was socio-economic, many Arab towns whose socio-economic status is very low were excluded from the priority areas, whereas Jewish towns whose status is far better were included in it. In the petitioners’ opinion, the geographic criterion should be applied to all the towns that are adjacent to one another, both Arab and Jewish; where the government decided to give a specific town an individual status as if it were included in a national priority — for alleged socio-economic reasons — this status ought to be given first and foremost to towns from the Arab sector whose position in this respect is especially difficult. Several preliminary hearings were held in that petition. It was subsequently heard before an extended panel of seven justices, and an order nisi was issued.

Government decision no. 2288

4.    On 14 July 2002, while the petition was pending, the government adopted a new decision with regard to national priority areas. This was decision no. 2288 (hereafter — decision no. 2288). This decision replaced decision no. 3292. At the beginning of the decision, the government declared that —

‘We are deciding to determine the national priority areas and towns in the Negev, Galilee, Jerusalem and Judaea, Samaria and Gaza. In these areas a variety of benefits and incentives will be given in order to further their advancement, reduce the gaps in the standard of development and standard of living between the national priority towns and all other towns in Israel, encourage the next generation to settle in the national priority towns, encourage the settlement of new immigrants and of longstanding citizens in the national priority towns, while implementing government policy with regard to the planned distribution of the population throughout the territory of the state.’

The decision discussed the aid and incentives in several fields: industry, agriculture, tourism, education and housing. For the first time a separate classification of towns was provided for each of the types of aid and incentives, and for the various government ministries. With regard to the aid in education, the government announced that:

‘The aid in the field of education is intended to improve the standard of achievement of students in the national priority areas with the aim of reducing gaps and creating a high quality and equal education system, in view of the fact that the level of education constitutes a main factor in the creation of a socio-economic spectrum of opportunities.’

With regard to the classification of the towns for the purpose of the benefits in the field of education, it was decided that —

‘The map of the national priority areas, for the purpose of benefits from all ministries, which was determined in government decision no. 3292 of 15 February 1998, shall remain in force as a framework for providing aid and incentives in the field of education’ (para. d.1 of the decision).

An inter-ministerial committee was also appointed to formulate recommendations with regard to the towns that had a temporary status of a priority area and with regard to including additional towns in the national priority area in the field of education.

5.    In view of government decision no. 2288 and its ramifications for the petition, the panel decided on 2 December 2003 that the petition should be cancelled, a new petition should be filed in accordance with the revised legal position and that an order nisi would be made in it. So on 22 December 2003 the petitioners filed an amended petition, which is the petition that is before us. In the petition, the petitioners again argue that decision no. 3292 should be set aside. The petitioners clarify that even though decision no. 3292 was replaced by decision no. 2288, the later decision refers in the matter of determining the national priority areas in the field of education to decision 3292, so that the factual basis remains unchanged. The amended petition was made up of three parts. The first part concerns the setting aside of decision no. 3292, which determined the priority areas in a manner that it excludes — so it is argued — Arab towns that satisfy the geographic criteria according to which the areas were determined. In the second part the petitioners requested that eleven Arab towns, which were not classified as a national priority area A, should have an identical status to the status given to the Jewish towns of Upper Nazareth and Migdal HaEmek, which are close to them from a geographic viewpoint and are higher than them on the socio-economic scale. In the third part of the petition, we were asked to add the towns of the Arab sector to the towns that receive benefits in the field of education as national priority areas A. An order nisi was made with regard to the three parts of the petition (on 6 January 2004). Later, a fourth part was added to the petition, with the consent of the respondents, in which the petitioners sought to add the seven recognized Bedouin towns in the Negev to the list of towns that are entitled to benefits in the field of education as a national priority area A. It was decided (on 12 March 2004) to make an order nisi also with regard to this relief.

The petitioners’ claims

6.    In the amended petition, the petitioners once again argue that the method of classifying the towns for the national priority areas, which grants extensive benefits by virtue of government decisions, is improper because it does not rely on primary legislation. It is argued that the government does not have any authority to adopt decisions in such a complex and fundamental matter as determining national priority areas. This matter should be regulated in a primary arrangement in the primary legislation of the Knesset, just like any arrangement that grants personal payments to the individual. The petitioners further argue that the government decision has no equal, open, clear and written criteria. The criteria on which the classification is based are unclear; sometimes they are geographic and sometimes they are socio-economic. The drawing of the map was done arbitrarily and it has itself become a criterion in the opinion of the respondent. By giving an individual status to towns, a socio-economic criterion was taken into account, and sometimes also a political criterion, but once again there are no clear written criteria and no weight was given to the socio-economic position of the Arab towns. In any case, it is difficult to find a connection between the criteria stated by the respondent and the manner of implementing them de facto, especially with regard to towns from the Arab sector. Thus, for example, whether the criterion is geographic or the criterion is socio-economic, it is not clear why the Arab towns close to Upper Nazareth and Migdal HaEmek were not given similar benefits in the field of education. The petitioners argue that government decision no. 3292 is discriminatory and unlawful, since it distinguishes unjustifiably between Jewish towns and non-Jewish towns, and especially with regard to Arab towns. According to the petitioners, a study of the map of national priority areas for the purpose of the benefits in education shows that of the 491 towns with a status national priority area A according to the map, only four towns are Arab towns, and all of these are small towns. The decision gives a status of national priority area A to 36 additional towns, which include not even one Arab town. In the field of education it was decided to give a status of national priority areas to eight additional towns, and these also do not include even one Arab town. The result that emerges from all this is that for the purpose of the benefits in education, 535 towns in total have been given a status of national priority area A, and these include only four small Arab towns. According to the petitioners, this result is discriminatory. The benefits in education should be universal and independent of ethnicity. The discrimination is starker in view of the fact that the respondent gave the benefits to certain sectors (the orthodox Jewish sector, the Druze and Circassian sectors) while it excluded the Arab sector. The result indicates discrimination on the basis of ethnicity. The respondent argued on more than one occasion that the basis for the benefits in education, and especially in adding the towns on a pinpoint basis, is socio-economic. This principle should have been applied to the Arab towns as well. This is especially true in view of the reduced socio-economic position of most of the Arab towns in the country, which is not in dispute. This is even more true with regard to the recognized Bedouin towns. Benefits in the field of education should be given on the basis of principles of distributive justice that require the consideration and implementation of socio-economic criteria for all of the population in an equal manner. In the current case, not including the Arab towns in the classification of the national priority areas for education is discriminatory and tainted by extreme unreasonableness.

The position of the respondent

7.    At the beginning of his reply, the respondent sought to clarify that the decision in force at this time is decision no. 2288 and not decision no. 3292 which preceded it. Therefore the respondent argues that there is no basis for considering arguments concerning a decision of the government that has been cancelled and the relief sought for this is no longer relevant. Moreover, in so far as the petition addresses the discrimination between Arab towns and nearby Jewish towns (such as Upper Nazareth and Migdal HaEmek) that received an individual status of a national priority area for education  (the second part of the petition), the specific status given in the past to those towns, within the framework of decision no. 2288 and its implementation, was for a fixed transition period and has been cancelled. The respondent pointed out that in the field of education, at present, the status of the towns has been determined entirely on the basis of the geographic test, in accordance with the map of national priority areas (except for the towns in the Druze and Circassian sectors). The significance of this is that the claim of discrimination is no longer relevant, and the petition should be denied.

8.    On the question of authority, the respondent argues that the government does have the authority to determine national priority areas by virtue of its residual authority in s. 32 of the Basic Law: the Government. The determination of the national priority areas is merely a basis for giving benefits and incentives, and since no other authority has any power under the law in this regard, these matters are within the general authority of the government. According to the respondent, there is also no basis for the argument that the determination of national priority areas is not based on criteria and is arbitrary. The map of the national priority areas is based mainly on geographic criteria. National priority area A is located in the areas that are most distant from the centre of the country and from employment centres; national priority area B is located in areas that are closer to the centre of the country and to employment centres; the remaining areas of the country are not located in any national priority area at all. It is argued that the logic underlying the geographic distribution assumes that the spectrum of opportunities for the citizen in outlying areas is narrower in many respects that what is available in the centre of the country, and that the cost of living in these areas is higher than in the other areas of the country. According to the respondent:

‘Determining the national priority areas was intended to encourage settlement and to assist residents in remote areas from a geographic viewpoint or in areas of security importance, where successive governments of Israel, according to their fundamental policies, have been interested in encouraging settlement. The national priority areas were not intended to improve the position of towns in distress according to socio-economic factors, as the petitioners claim, and the socio-economic consideration was not a decisive factor in determining the national priority areas. The precise demarcation of the map of priority areas was prepared mainly in accordance with a map of natural districts and areas, in which the demarcation was also influenced by the topography and the location of roads’ (para. 11 of the reply).

The respondent argues, with regard to the claim of discrimination, that there was no deliberate intention to exclude the petitioners, and certainly not on the basis of ethnicity, as they claim. A town that is situated within an area that has been declared to be a national priority area will receive benefits whether it is a Jewish town or an Arab town. A town that is not situated in the aforesaid geographic area will not receive benefits, whether it is a Jewish town or an Arab town. Since the criterion is solely geographic, there is no basis for the claim of discrimination, since the distinction is based solely on geographic location. The small number of Arab towns that are included in the national priority area can be attributed, so it is argued, to the geographic distribution ‘of the Arab towns that are not situated in the Upper Galilee or in the Southern Negev.’ Indeed, in the northern outlying area which is defined as national priority area A there are relatively few Arab towns, but ‘there is no basis for the argument that the line passes in a manner that is intended to discriminate between the Jewish sector and the Arab sector’ (para. 45 of the reply). From a practical viewpoint, the respondent points out, the geographic line that separates national priority area A from national priority area B passes mainly (more than 70%) along the boundary lines of the towns near this line, and only in a few points does the line cross open areas.

9.    The respondent objects to the petitioners’ demand that the towns of the Arab sector and the Bedouin sectors should be added to the list of towns that receive benefits. The respondent clarifies that even in the field of education the national priority areas were not determined in accordance with socio-economic criteria but in accordance with geographic criteria. Notwithstanding, the government decided to give benefits on an individual basis to several Druze and Circassian towns, but only to these towns. These sectors need considerable strengthening in education in order to reduce gaps that have accumulated over many years. The benefits given to these sectors are merely affirmative action, which is a part of the overall policy of the government in dealing with these sectors. The respondent makes clear that there is no practical possibility of introducing affirmative action on a sweeping basis and at the same time for all the sectors that require it. Therefore granting the petitioners’ demand to make their status equal to the status of the Druze and Circassian towns will make it necessary to take away the benefits from the Druze and Circassian towns and to harm them unfairly. Notwithstanding, the government is acting in other ways to promote education in the Arab sector and the Bedouin sector. Over the years, several commissions were established and these made various recommendations on the subject. In addition the government decided (on 22 October 2000) to take action in the form of a multi-year plan to develop and promote the Arab sector socio-economically, including in the field of education. In consequence of this decision, the Ministry of Education formulated the Homesh plan whose purpose is to create equal opportunities in the Arab and Druze sector, to increase the number of persons entitled to a matriculation certificate, to strengthen basic learning skills, to strengthen the special education system, etc.. Implementation of the plan began in the 2000 academic year with a total budget of NIS 250 million over five years, in addition to all the resources allocated to the Arab and Druze education system. To complete the picture, the respondent mentioned the report of the Public Commission for Examining the Budgeting System in Israeli Elementary Education, which was headed by Dr Shimon Shoshani (hereafter — the Shoshani report) which was submitted to the Minister of Education on 22 August 2002. The report recommended that a uniform and common budgeting index should be fixed for all the educational institutions and for all the students in Israel, in accordance with equitable criteria, that would be based on a series of variables, including the education of the parents, country of origin, geographic distance from the centre of the country and living in a national priority area and within range of hostile borders. The respondent added that implementing the budgeting system in accordance with the Shoshani report will result in a significance improvement in the Arab sector. The hours of teaching in the Arab sector will increase by 70,000 hours per year, which are 80% of the extra teaching hours that were designated for all students in Israel; the teaching hours in the Arab sector would increase by approximately 30%, whereas in the Jewish sector they would increase by only 5%. The report itself, according to the reply, was implemented for official elementary schools starting in the 2003-2004 academic year. Thus we see, according to the respondent, that there is no basis for adding the towns of the Arab and Bedouin sector — which are addressed in the third and fourth parts of the petition — to those entitled to a status of national priority areas, since the handling of their socio-economic status and their need for educational advancement is being dealt with within other frameworks and in a proper manner. In summary, it is argued, the petition should be denied in its entirety.

The scope of the dispute

10. We ought first to state the scope of the dispute, as it appears to us from a study of the material and from hearing the parties: first, we accept the position of the petitioners that decision no. 3292 is still of relevance, even though it has been cancelled from a formal viewpoint. Decision no. 2288 — which according to everyone is the valid decision at the present — refers with regard to benefits in education to the map of national priority areas that was determined in decision no. 3292. It is therefore not possible to separate the two government decisions with regard to the petitioners’ claim that the determination of the national priority areas in the field of education is unlawful. Second, it cannot be denied that decision no. 2288 changed the position that prevailed at the time of filing the original petition. Whereas the petitions focused their arguments in the original petition on the absence of a clear and uniform criterion for determining the national priority areas within the framework of decision no. 3292, with regard to decision no. 2288 it is certain — both from its content and from the respondent’s position — that the criterion adopted by it is a single clear criterion, namely the geographic criterion. This criterion was also adopted, according to the respondent, with regard to determining the national priority areas in the field of education. Notwithstanding the reference to decision no. 3292, the actual determination of the national priority areas as of the present, including in the field of education, is done by virtue of decision no. 2288. Third, we accept the respondent’s position that in the current position the second part of the petition has become redundant. Admittedly, the essence of this part revolves around the argument of discrimination that decision no. 3292 made between towns, such as Upper Nazareth and Migdal HaEmek, that were granted the status of a national priority area on an individual basis, even though they did not satisfy the geographic criterion, and nearby Arab towns that were not granted this status. But the respondent said that this individual status of the Jewish towns was cancelled and no longer exists, and therefore there is no basis to the claim of discrimination at the present. The temporary position that prevailed until the government policy was changed may have significance for the purpose of the relief, but there is now no longer any need to consider the claim of discrimination.

11. In view of the aforesaid, three main issues remain relevant: first, is the government competent to determine an arrangement of national priority areas, by virtue of s. 32 of the Basic Law: the Government? Second, is the map of national priority areas for the purposes of education that was determined by the government (in decisions nos. 3292 and 2288) discriminatory on the basis of ethnicity, and therefore void? Third, should the towns of the Arab and Bedouin sector be given a status of towns in the national priority area A with regard to education, in the same manner that has been adopted with regard to the Druze and Circassian towns? The first question is addressed in the opinion of my colleague the vice-president, Justice M. Cheshin. I agree with his remarks. I will therefore concentrate my remarks on the other two questions.

Is the government decision regarding the determination of national priority areas in education discriminatory?

12. On one side, the respondent argues before us that the whole purpose of determining national priority areas in the field of education is to compensate the outlying areas for their remoteness from the centre of the country, and therefore the relevant consideration that is taken into account is the geographic consideration. According to the respondent, this consideration is not discriminatory. On the other side we have the petitioners, who argue that the actual demarcation of the geographic line, as it has been determined, discriminates against the Arab sector. The geographic line determined by the government leads to a result in which the towns that are entitled to national priority in the field of education, which number approximately 500, include only four small Arab towns. Who is right?

The principle of equality

13. The principle of equality is one of the most basic principles of the State of Israel. The right to equality is one of the most important human rights. It is the ‘heart and soul of our whole constitutional regime’ (per Justice M. Landau in HCJ 98/69 Bergman v. Minister of Finance [1], at p. 698 {18}). Indeed, ‘it is well known that equality is one of the basic values of the state. It is the basis of social existence. It is one of the cornerstones of democracy’ (see HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2], at p. 415; HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [3], at p. 39). It is one of the most fundamental principles for the interpretation and implementation of statutes (HCJ 240/98 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [4], at p. 177). A violation of equality is ‘the worst thing of all’ (per Justice M. Cheshin in HCJ 7111/95 Local Government Centre v. Knesset [5], at p. 503). Discrimination is one of the worst evils that can befall a human being and human rights. It may lead to humiliation and a violation of human dignity (HCJ 4541/94 Miller v. Minister of Defence [6], at p. 132 {224-225}). This is certainly the case where the discrimination is on the basis of a person’s religion or race. Such a ‘generic’ discrimination ‘… inflicts a mortal blow on human dignity’ (per Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social Affairs [7], at pp. 658-659; see also Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2], at p. 414, and A. Barak, A Judge in a Democracy (2004), at p. 142).

14. The principle of equality applies to all spheres of government activity. Notwithstanding, it is of special importance with regard to the duty of the government to treat the Jewish citizens of the state and non-Jewish citizens equally. This duty of equality for all the citizens of the State of Israel, whether Arab or Jewish, is one of the foundations that make the State of Israel a Jewish and democratic state. As I have said elsewhere:

‘We do not accept the approach that the values of the State of Israel as a Jewish state justify… discrimination by the state between the citizens of the state… The values of the State of Israel as a Jewish and democratic state do not imply at all that the state should act in a manner that discriminates between its citizens. Jews and non-Jews are citizens with equal rights and obligations in the State of Israel’ (see HCJ 6698/95 Kadan v. Israel Land Administration [8], at pp. 280-281).

Moreover:

‘Not only do the values of the State of Israel as a Jewish state not require discrimination on the basis of religion and race in Israel, but these values themselves prohibit discrimination and require equality between religions and races’ (ibid. [8], at p. 281).

I added that ‘the State of Israel is a Jewish state in which there are minorities, including the Arab minority. Each member of the minorities that live in Israel enjoys complete equality of rights’ (ibid. [8], at p. 282, and EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [9], at p. 23).

15. A violation of equality is always serious. It is much more serious when it harms the right to education. Indeed, the right to education is a basic right in our law, a right that is given to everyone. This is ‘one of the basic human rights’ (HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [10]). The right to education finds expression in the constitutions of many democratic countries, and in international conventions. It has rightly been said that:

‘Education is a social device of an importance that cannot be overestimated. It is one of the most important functions of the government and the state. Education is essential for the existence of a free, living and functioning democracy. It constitutes an essential basis for the self-realization of every person. It is essential for the success and prosperity of every individual. It is essential for the existence of a society in which people live and act in order to improve their welfare and thereby contribute to the welfare of the whole community… Education is, without doubt, an important instrument for ensuring the rights and liberties of every individual and the realization of his basic political rights, including the freedom of expression and the right to vote and to stand for office’ (per Justice T. Or in HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [11], at p. 24).

The right to education is not limited to the right of the individual to choose the education that he wants. It sometimes also includes the obligation of the state to allow the individual — every individual — to receive basic education on an equal basis (see and cf. HCJ 421/77 Nir v. Be’er Yaakov Local Council [12], at p. 265). It has already been said that:

‘The right to education is a basic right that is recognized in the countries of the world and in Israel. The recognition was expressed already at the very founding of the state in the Declaration of Independence and in the first education laws that were enacted shortly after the state was founded. Alongside the right to education, there is another converse aspect, a duty for every child to be educated. This duty is imposed on the individual, and at the same time the public authority has a duty to provide education and to give it at no cost to the whole public’ (per Justice A. Procaccia in HCJ 7374/01 A v. Director-General of Ministry of Education [13]; see also the Student Rights Law, 5761-2000; Shoharei Gilat Society v. Minister of Education [11]; HCJ 4363/00 Upper Poria Board v. Minister of Education [14]; HCJ 7351/03 Rishon LeZion Municipal Parents Committee v. Minister of Education [15]; for further discussion, see Y. Rabin, The Right to Education (2002), at p. 65).

An additional reflection of the exalted status of this basic right can be found in an interpretive presumption to the effect that the statute should be interpreted in a manner that upholds the right to education rather than interpret it in a way that denies it (HCJ 693/03 Marciano v. Minister of Finance [16]).

Determining the national priority areas in the field of education

16. Against this normative background, the question that arises is whether the government decision to determine national priority areas with regard to the benefits given in the field of education satisfies the requirements of equality, or whether it is discriminatory. Our answer to this question is that from the figures brought before us we have been persuaded that the government decision concerning the determination of the national priority areas is not consistent with the principle of equality, since its consequences lead to an improper discrimination against members of the Arab sector in realizing their right to education, and this results in its being unlawful.

17. As a premise for examining this petition we are prepared to assume that the consideration underlying the determination of the national priority areas was mainly geographic. It was intended to distinguish between areas that are geographically close to the centre of the country and outlying areas that are distant from it. According to the government decision, priority in the field of education should be given to those towns that are situated in the outlying areas. This position was expressed in the respondent’s reply (of 28 March 2004), according to which the relatively low number of Arab towns in the national priority areas —

‘… derives from the geographic location of the Arab towns that are not situated in the Upper Galilee or in the southern Negev and not from any racial consideration. Indeed, in the northern outlying areas of the State of Israel, which is defined as a national priority area A for education, there are relatively few Arab towns. Notwithstanding, there is absolutely no basis for the claim that the line was drawn in a manner that was intended to discriminate between the Jewish sector and the Arab sector…’ (para. 30 of the reply).

Our premise is therefore that the geographic consideration alone is what formed the basis for determining the national priority areas. There is nothing in the material before us that directly indicates that the actual choice of the geographic criterion or the manner of drawing the geographic line were done in order to discriminate against members of the Arab population. It should be emphasized that this premise of ours, according to which the manner of demarcating the national priority areas for the purpose of the benefits in education was done in accordance with criteria of geographic remoteness from the centre of the country, without any intention of discrimination between various sectors of the population, is not self-evident in the circumstances of the case. This is because the respondent did not present to the court any figures or clarifications to explain how the government determined the geographic borderline that separates the outlying areas from the centre of the country, national priority area A from national priority area B and national priority area B from the areas without priority, and to justify giving preference to the persons in one area and not in another area. Apart from the declaration that the criterion is one of geographic remoteness, we have not found in the material before us any explanation or formula that explains what constitutes the centre of the country, and what distance from the centre justifies benefits, particularly in the field of education. The government also had before it figures concerning the various sectors in Israeli society to which the towns in the outlying areas belong. In the absence of an explanation or formula, there is a considerable difficulty in accepting the position of the respondent according to which geographic remoteness was the only consideration taken into account is demarcating the areas (see and cf. HCJ 727/00 Committee of Heads of Arab Local Councils in Israel v. Minister of Building and Housing [17], at p. 90). Moreover, the absence of any explanation or formula that were used to determination the geographic remoteness of national priority areas for the purpose of the benefits in education gives rise to a question as to whether any weight, or sufficient weight, was given to the consideration of upholding the principle of equality in general and equality in education in particular (see and cf. HCJ 59/88 Tzaban v. Minister of Finance [18], at p. 706; see also HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [19], at p. 172; Committee of Heads of Arab Local Councils in Israel v. Minister of Building and Housing [17], at p. 89; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [20]; HCJ 3792/95 National Youth Theatre v. Minister of Science and Arts [21], at p. 282). But even if we assume that the government decision was made after considering all the relevant factors, and there was no intention to distinguish between various sectors of the population, decision no. 2288 is still tainted by discrimination that goes to the heart of the legality of that decision.

18. Indeed, prohibited discrimination may also occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. Where discrimination is concerned, the discriminatory outcome is sufficient. When the implementation of the norm created by the authority, which may have been formulated without any discriminatory intent, leads to a result that is unequal and discriminatory, the norm is likely to be set aside because of the discrimination that taints it. Discrimination is not determined solely according to the thought and intention of the creator of the discriminatory norm. It is determined also in accordance with the effect that it has de facto (HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [22], at p. 764 {493-494}). ‘The principle of equality looks to the outcome; no matter how pure and unsullied the intention of a person may be, if the outcome following from his act is a discriminatory one, his act shall be set aside as if it had never been done’ (per Justice M. Cheshin in Israel Women’s Network v. Minister of Labour and Social Affairs [7], at p. 654). The test for the existence of discrimination is an objective test that focuses on the outcome of realizing the norm that is under scrutiny. It is not limited to the subjective thinking of the creator of the norm. The question is not whether there is an intention to discriminate against one group or another. The question is what is the final outcome that is created in the social context. I discussed this in one case:

‘The question does not only address the motive of the persons making the decision; the question also addreses the result of the decision. The decision is improper not only when the motive is to violate equality but also when the motive is otherwise, but equality is violated de facto’ (Poraz v. Mayor of Tel-Aviv-Jaffa [20], at pp. 333-334. See also HCJFH 4191/97 Recanat v. National Labour Court [23], at p. 348).

In another case I wrote:

‘The presence or absence of discrimination is determined, inter alia, on the basis of the effect that the legislation achieves de facto… Consequently, a law that is couched in “neutral” language may be discriminatory if its effect is discriminatory. Indeed, discrimination may be unintentional… Even if the purpose of the legal norm is not to create discrimination, if discrimination is created de facto, the norm is tainted by discrimination… Discrimination may be “latent” and “systemic,” in the sense that it is not evident “on the face of” the norm, but it derives from the “effect” of the norm’ (HCJ 1000/92 Bavli v. Great Rabbinical Court [24], at pp. 241-242; see also Kadan v. Israel Land Administration [8], at pp. 279-280).

This was also discussed by Justice G. Bach with regard to sexual discrimination between workers, when he said:

‘I am prepared to assume that the employers of the petitioner had no intention to discriminate against her and against the other women workers when they signed the employment code. But the intention of the respondent is not the final word on the question that we are required to decide, since the test for examining whether discrimination exists or not is objective rather than subjective. The motive for creating a difference between men and women is not the decisive issue in this matter, and in order to determine whether discrimination is present we must examine the final outcome, as it can be seen in the social context’ (HCJ 104/87 Nevo v. National Labour Court [25], at p. 759 {149}).

Similar remarks were made by Justice E. Mazza with regard to discrimination against women:

‘Searching for the causes of discrimination against women in any sector, when its existence as a social reality in that sector is proved by statistical evidence, is of secondary importance; for in general it is possible to assume that discrimination against women in any sphere — particularly when their promotion does not depend merely on the qualifications of the candidates but also on decisions made at organizational power centres — is a result of a deep-rooted consensus which many upright people act upon without being aware of the impropriety in their behaviour. But the absence of discriminatory intent is irrelevant; for the problem is the phenomenon of discrimination against women, as a proven fact, and discrimination is wrong even when there is no intention to discriminate’ (HCJ 453/94 Israel Women’s Network v. Government of Israel [26], at p. 524 {450}).

19. In our case, the way in which the government demarcated the national priority areas in education achieved a discriminatory result, whether it was an intentional result or not. The geographic demarcation along the lines that were chosen led to a result in which the 500 towns that received the status of a national priority area for the purpose of benefits in education included only four small Arab towns. This numerical proportion in no way corresponds to the size of the Arab sector in the population as a whole and its geographic distribution in Israel. Admittedly, Arab towns are apparently not concentrated in the most outlying areas of the Galilee and the Negev. It follows that, prima facie, the geographic criterion excludes these towns not because they belong to the Arab sector but because of their physical location. But the practical result of using the geographic criterion, with the boundaries that were chosen, is that the map of the national priority areas in education is de facto a map of Jewish towns only. The great disparity between the number of Jewish towns with the status of a national priority area in the field of education and the number of Arab towns with a similar status indicates a discriminatory result. As my colleague Vice-President M. Cheshin said in a similar context, ‘this disparity can be said to speak for itself’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [4], at p. 178). It is impossible to allow this result. This is a discriminatory result that cannot stand. This is a result that Israeli democracy cannot tolerate. The effect of the government’s decision is that it discriminates against the members of the Arab sector in the field of education. Indeed —

‘Such discrimination, especially if it is systemic, may seriously harm not only a particular person or a particular group, but also the fabric of society and the feeling of partnership that is a condition for proper coexistence’ (per Justice I. Zamir in Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [19], at pp. 170-171).

 Even on the assumption that the respondent had clear reasons when he decided upon the geographic lines that distinguish between national priority areas and other areas, it is not possible to ignore the result arising from these demarcation lines. If a slightly different line had been chosen, which still satisfies the purpose of ‘compensating’ the outlying areas for their distance from the centre of the country, this line could have included more Arab towns and thus achieved a more equal result. This was not done. The geographic line that was chosen leads to a discriminatory result.

20. It should be noted that whether something in the circumstances of the case has a discriminatory effect is not a question of arithmetic but a question of substance. The government decision addresses one of the most basic of fundamental rights — the right to education. Its outcome is tainted by one of the most ‘suspect’ distinctions of all — a distinction on the basis of ethnicity and race. It is to be expected that government policy in this field will promote equality between Jews and Arabs. This is required by the Jewish and democratic values of the State of Israel. It could have been assumed that a policy of giving preference to outlying areas in the field of education would be done on an equal basis and would also promote real equality between Jews and Arabs. This is not the result of the government’s policy. In order to emphasize the gap that has been created as a result of the government’s policy in the field of education, we can repeat the figures that were presented before us (in appendix 5 filed by the petitioner) with regard to the significance of the status of a national priority area in education. A town that is included in a national priority area A is entitled to significant benefits, including a 75% contribution towards teachers’ studies; a full contribution towards travel expenses for teachers’ studies; an 80% contribution towards rent for teachers; payment of the teacher’s contribution towards study funds; a full contribution towards teachers’ travel expenses during sabbaticals; an exemption from tuition fees for pre-school children; a contribution towards matriculation examination fees; an increased balancing grant to the local authorities; an allocation of additional tuition hours in accordance with pedagogic needs; full funding for installing computer systems in schools (subject to approval of plans); an additional budget that takes account of the special needs of schools that have six grades of classes; preference in scholarships for students; a grant of NIS 100,000 to each community centre for the benefit of new population groups. By contrast, we were presented with serious figures concerning the poor socio-economic position in the Arab sector: thus, as of the year 2002, approximately half of the Arab towns were in the two lowest groups according to the reports of the Central Statistics Bureau. Approximately 94% of Arab towns were in the four lowest groups (of the ten existing groups). Significant differences can be found in a range of additional parameters, including the number of students in the twelfth grade, the number of students who drop out in the ninth to eleventh grades and the number of students entitled to a matriculation certificate who satisfy the minimum requirements of the universities. The state commission of enquiry that examined the clashes between the security forces and Israeli citizens in October 2000, which was chaired by his honour Justice Emeritus T. Or, in its report that was published in the year 2003, said in this context that —

‘The discrimination against Arab schools continued until the end of the 1990s in many respects: the number of students per teacher, the number of students in a class, the number of official classes, sports facilities, laboratories, the number of computers per student, etc.. The establishment of compulsory-age kindergartens, and subsequently pre-compulsory-age education for children aged 3 and 4, special education, special needs classes, enrichment programmes, professional education are all far behind these services in the Jewish sector’ (ibid., at p. 48; also see and cf. HCJ 2814/97 Supreme Education Monitoring Committee v. Ministry of Education [27]).

We learned of similar matters from the respondent himself, within the framework of the explanation concerning the new budgeting system in the Shoshani report.

21. In this situation, and in view of the figures that have been discussed, our conclusion is that if there is a desire to give compensation in the field of education to outlying areas as compared with central areas, we cannot accept a result in which only four small Arab towns receive the benefits of a national priority area in education, when no less than 500 Jewish towns are receiving these benefits. This is the case in general, and this is especially the case when the Arab sector is so far behind in the field of education. Indeed, ‘the exclusion of Arab towns from socio-economic programmes, whose purpose is specific and different, constitutes improper discrimination’ (per Justice D. Dorner in HCJ 6488/02 National Board of Heads of Arab Local Councils in Israel v. Committee of Directors-General [28]). Public resources — especially resources that are allocated to remedy a socio-economic injustice — should be allocated equally and fairly in view of the purpose for which they were allocated and the different needs of members of society to receive the resources. Our conclusion is therefore that in the circumstances of the case before us the principle of equality has been violated.

22. This determination that the principle of equality has been violated is not the bottom line with regard to the legality of the government’s decision. The decision, even if it is discriminatory, may turn out to be lawful, if it satisfies the criteria set out in the Basic Law: Human Dignity and Liberty. Indeed, whenever administrative power is exercised in violation of basic human rights it should always be exercised in the spirit of the Basic Laws (Miller v. Minister of Defence [6], at p. 138 {231}; HCJ 5016/96 Horev v. Minister of Transport [29]). Even when a violation of equality has been proved, we should therefore examine whether the violation satisfies the requirements of the limitations clause in s. 8 of the Basic Law, namely whether the decision befits the values of the State of Israel, whether it is intended for a proper purpose and whether the violation of equality is not excessive. There may therefore be permitted discrimination (see HCJ 3434/96 Hoffnung v. Knesset Speaker [30], at p. 76). Indeed, the right to equality, like all other human rights, is not an ‘absolute’ right. It is of a ‘relative’ nature. This relativity is reflected in the possibility of violating it lawfully, if the conditions of the limitations clause are satisfied. In this regard, the respondent did not argue, and therefore he obviously did not prove, that the conditions of the limitations clause are satisfied. The respondent did not argue or prove that the manner in which the national priority areas were demarcated was necessary in order to promote proper purposes and values that befit the Jewish values and the democratic values of the state. He did not argue or prove that the violation is proportionate. As my colleague, Vice-President M. Cheshin has shown, the violation is not enshrined in statute or based upon an express authorization in statute. Indeed, according to the facts presented before us, and in the absence of any explanation on the part of the respondent for choosing the geographic line or the formula for demarcating the priority areas, there is no basis for determining that the government’s decision satisfies the requirements of the limitations clause in the Basic Law.

23. Thus our conclusion is that in view of the figures that were brought before us and the law that applies in this regard, the government’s decision no. 2288 cannot stand, since it leads to a result that discriminates between the Jewish sector and the Arab sector. If the government did indeed think that the distance from the centre of the country results in undesirable disparities in the field of education, then this is true not only with regard to Jewish towns but also with regard to Arab towns. But the result whereby the towns that are considered to be outlying areas for the purposes of education are almost entirely Jewish towns necessarily indicates a discriminatory outcome. What is prima facie a relevant difference — the geographic distance from the centre of the country — becomes an irrelevant and discriminatory difference as a result of the aforesaid policy. No explanation whatsoever was given for the discriminatory arrangement that might have been capable of convincing us that the policy, despite its being discriminatory, is lawful in accordance with the criteria of the Basic Laws. The conclusion is therefore that this policy of the government, as expressed in decision no. 2288, is discriminatory and unlawful.

Not including the Arab and Bedouin towns among the towns that are entitled to the benefits of a national priority area in education

24. An additional argument made by the petitioners, in the third and fourth parts of their petition, is that apart from the discriminatory result in determining the national priority areas on a geographic basis, the government decision is tainted by another discrimination, which is that the benefits given to the national priority areas in education are not given to all the Arab and Bedouin towns, as was done at least with regard to some of the Druze and Circassian towns. The argument in this respect is therefore unrelated to the map of national priority areas, but addresses the discretion of the government to decide that certain towns that are not included in a geographic area that has been declared to be a national priority area should nonetheless receive the benefits in the field of education as if they were in a national priority area. The state, in its reply as aforesaid, does not deny the special needs of the Arab sector in this respect at all, but it rejects the claim by means of two arguments: first, it argues that the resources of the government are limited and therefore giving the benefit to the Arab sector would means that other sectors in need, such as the Druze and Circassian sector, would lose the benefit; second, it argues that the government is taking action in order to correct the failures and problems in the field of education in the Arab sector that does not involve the national priority areas. This policy makes the claim of discrimination baseless.

25. Within the framework of this petition there is no reason for us to order the towns of the Arab and Bedouin sectors to be given a status of national priority areas in the field of education. This is for two main reasons. First, this relief of giving a specific status to the towns of the Arab and Bedouin sectors was requested by the petitioners as an alternative relief, in the third and fourth parts of their petition. Since we have seen fit to accept the petition and grant the first and main relief that the petitioners sought — a determination that the government decisions that classify the national priority areas in education are void — there is no basis for considering the alternative reliefs sought by the petitioners. Second, even if we addressed the arguments on their merits, we would not be able to grant the petitioners the desired relief. The petitioners have the burden of showing that the Arab and Bedouin sectors have ultimately been discriminated against in the field of benefits in education, as compared with other sectors, such as the Druze and Circassian sectors. This claim was not proved and sufficient figures were not presented to support it. For this reason we saw no reason to intervene in the respondent’s decision in this manner. Naturally, the petitioner still has the right to file a separate petition in this regard, which should include all of the figures required for this purpose.

The relief

26. Our conclusion is therefore that there was a defect in government decision no. 2288 concerning the determination of the national priority areas in the field of education. This defect has two aspects: first, the aforesaid government decision is unlawful, since in a matter of this kind the government does not have the power to make an arrangement that is in essence and character a primary arrangement, which falls within the sole jurisdiction of the Knesset. Second, the aforesaid government decision is unlawful since it discriminates in a prohibited manner between Jews and Arabs, and this discrimination violates the right to equality to a disproportionate degree. What is the proper relief in a situation of this kind? Indeed, in view of the seriousness of the defects that tainted the government decision we are compelled to decide that government decision no. 2288, in so far as it relates to the determination of the national priority areas in education, should be declared void. The defects that occurred in this decision are serious defects of ultra vires and the unlawful exercise of discretion. This decision cannot therefore be left as it is, and it should be declared void.

27. Notwithstanding it should be recognized that a declaration of voidance in the circumstances of this case gives rise to difficulties that are not simple with regard to the date on which the declaration of voidance should come into effect. We should not ignore the serious result that will be caused if the declaration of voidance comes into effect immediately. The determination of the national priority areas has a wide-ranging normative significance and we should seek to avoid a situation in which there is a ‘legislative void’ in a matter that is so important and that has such wide-ranging national implications (cf. Re Language Rights under Section 23 of the Manitoba Act, 1870 [86]). We should avoid harming an important public interest (see and cf. HCJ 2313/95 Contact Linsen (Israel) Ltd v. Minister of Health [31]; CA 4275/94 Tel-Aviv Stock Exchange Ltd v. A.T. Management of Torah Literature Database Ltd [32]), which in our case is the stability of regulating national policy in the field of education. Moreover, many parties have naturally relied on the existing position that is based on the national priority areas in the field of education, and if the declaration of voidance comes into immediate effect this may harm them excessively (see HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [33]; HCJ 154/98 New General Federation of Workers v. State of Israel [34]). Moreover, any decision concerning an alternative comprehensive arrangement regarding national priority, of the type considered in the petitions before us, requires not only Knesset legislation but a fundamental study of a whole range of factors of wide-ranging significance, both in the field of education and in other fields. A study of this kind needs a suitable period of time during which it can be considered by the legislature (see, for example, HCJ 9232/01 Noah, the Israeli Federation of Animal Protection Organizations v. Attorney-General [35]). Finally it should be remembered that government decision no. 2288 does not stand alone, but is connected with government decision no. 3292 and even refers to it. Declaring the decision void with immediate effect may create normative uncertainty with regard to the relationship between the various government decisions and the normative position after the more recent decision among them is declared void.

28. Indeed, the proper relief in circumstances of this kind is therefore to suspend the declaration of voidance (in this regard, see Y. Mersel, ‘Suspending a Declaration of Voidance,’ 9 Mishpat uMimshal (2006) 39). In view of the serious defect that occurred in the government decision, there is no alternative to declaring it void, but in view of the ramifications of an immediate voidance of a government decision of this kind, it should be held that the declaration of voidance is suspended for a certain period of time. This has been done in the past in this court when a government decision was set aside with regard to national priority areas (see Kiryat Gat Municipality v. State of Israel [33], in the majority opinion); we also held that the consequences of a declaration of voidance should be suspended in other contexts (see, for example, HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [36]; HCJ 3267/97 Rubinstein v. Minister of Defence [37]). Notwithstanding, the length of this period should be determined with a view to the nature of the matter, which involves not only an ultra vires act of the government but in particular serious and unjustified discrimination specifically in the field of education. The length of the suspension should also take into account the need for a reasonable period of time to determine an alternative legal and constitutional arrangement in place of the arrangement that is being set aside. Against this background, and in view of all of the circumstances of the case, we determine that the declaration that government decision no. 2288 is void, in so far as it concerns the field of education, shall come into effect twelve months after the date of giving this judgment.

29. In concluding, it should be noted that our judgment naturally relates only to the scope of the dispute in the petitions before us, which as aforesaid concerns government decision no. 2288 only in so far as it relates to the field of education. Notwithstanding, our judgment is based not only on the determination that there was a defect of improper and unjustified discrimination in the result of the government plan in this field, but also on the determination that an arrangement of this kind cannot be made in a government decision but must be a primary arrangement of the Knesset, all of which as stated in the opinion of our colleague, Vice-President M. Cheshin. There is consequently no doubt that this normative determination has a possible ramification not only on determining national priority areas in the field of education, which is the subject of the case before us, but also on determining national priority areas in other fields that were regulated in government decision no. 2288. We should therefore expect that any alternative arrangement that is made, in view of this judgment, will result in an overall amendment of the issue of determining national priority areas, not merely in the field of education but also in other fields.

Therefore we are making the order nisi absolute, in the sense that government decision no. 2288 — in so far as it relates to the field of education — is set aside as of twelve months from the date of this judgment.

 

 

Vice-President Emeritus M. Cheshin

I agree with the opinion of my colleague President Barak. His approach is my approach and his conclusions are my conclusions. I would nonetheless like to address the petitioners’ claim that the government was not entitled or competent to determine national priority areas by virtue of its residual power under s. 32 of the Basic Law: the Government, 5761-2001.

Scope of the dispute

2.    The government decided to determine national priority areas and to give various material benefits — pecuniary benefits and benefits with a pecuniary value — to the residents of those areas. Was the government competent to do what it did? Everyone agrees that the government does not have authority to do something that the Knesset has not allowed it to do, first and foremost in a law of the Knesset. Everyone also agrees that there is no provision of law in the statute book that authorizes and permits the government to establish national priority areas like those that it established in its decision. This leads to the question: in the absence of a provision of statute that authorizes it to set up national priority areas, is the government entitled to set up these areas by virtue of the residual power given to it in the provisions of s. 32 of the Basic Law: the Government, 5761-2001? Let us recall that s. 32 of the Basic Law: the Government, 5761-2001, says the following:

‘Residual powers of the government

32. The government is competent to do on behalf of the state, subject to any law, any act whose performance is not delegated by law to another authority.’

3.    The petitioners claim that the power provided in the provisions of s. 32 of the Basic Law: the Government, 5761-2001, does not include a power for the government to order the establishment of national priority areas in the manner in which it did this. The reason for this is that the decision to establish national priority areas is a decision that concerns a wide-ranging policy, a policy that has an effect — directly and indirectly — on the whole state, and as such the provisions of s. 32 of the Basic Law are too narrow to contain it. The government was not competent — and it is still not competent— to make a decision of such a kind without the Knesset, the primary legislator, addressing the issue and authorizing it to do so. The decision to establish national priority areas, so the petitioners claim, is a decision that falls into the category of ‘primary arrangements,’ namely those arrangements that require an enabling law of the Knesset, and there is no law of the Knesset in this case. The respondents reply that this is not so. The decision to establish national priority areas is an executive decision. It is a decision of the kind that the government, as the executive branch of the state, is required to make — and which it does make — on a regular basis in the course of its everyday and routine activity. As such, this decision falls within the residual power of the government as authorized in s. 32 of the Basic Law: the Government. The respondents agree, of course — for how could they do otherwise — that we are speaking of a decision whose ramifications are wide-ranging, but according to them the decision goes no further than the executive decisions that the government makes from time to time on a routine basis, decisions that the government is required and authorized to make as a tool for effective and proper government in Israel, for the benefit of all the inhabitants. This is the case in general, and especially when no other authority in the state is competent to make a decision like the one made by the government.

4.    The dispute between the parties therefore concerns the question of where the borderline lies between the powers of the Knesset and the government. The question is whether the government strayed from its own sphere of operations into the Knesset’s sphere of operations — according to the petitioner — or whether, in its decision to establish national priority areas, the government was operating in its own sphere of operations by virtue of the power that it acquired under s. 32 of the Basic Law: the Government?

Difficulties arising from section 32 of the Basic Law: the Government, 5761-2001

5.    The provisions of s. 32 of the Basic Law: the Government, 5761-2001, were carried over from earlier provisions of statute. The original version was in art. 5 of the Palestine Order in Council, 1922-1947, from which it passed into s. 29 of the Basic Law: the Government, 5728-1968, and from there into s. 40 of the Basic Law: the Government, 5752-1992. Section 32 of the Basic Law: the Government, 5761-2001, follows on from s. 40 of the Basic Law: the Government, 5752-1992, and the wording of the aforesaid sections 29, 40 and 32 is identical. This provision of law, in its different versions, has been the subject of interpretation and clarification in case law and legal literature, but we shall only speak of the main issues that concern our case.

6.    According to s. 1 of the Basic Law: the Government, 5761-2001: ‘The government is the executive branch of the state.’ This is the ‘nature’ of the government, as the title of section 1 says, and everyone agrees that the government is charged with managing the affairs of the state. In general, according to the principle of the rule of law and administrative legality accepted in Israel, the Knesset determines in statute the functions of the government and the scope of its powers, and the government is entitled and competent to act solely and exclusively within the scope of those powers that it acquired in statute. But the scope of the activity for which the government is responsible is very broad indeed. It is not possible to regulate in statute every activity that it needs to carry out, and as a result the government is required, on a routine basis, to act and operate in areas which the Knesset has not addressed and therefore has not regulated in statute. This was discussed by President Shamgar in HCJ 5128/94 Federman v. Minister of Police [38], where he said (at p. 651):

‘The government is the executive branch of the state… Various pieces of legislation give the government or one of its ministers defined powers. But the powers given to the government are broader than those specified in the individual statutes. It is not possible to cover all the possible fields of operation of the executive branch by means of a provision of statute. The duty of the government as the executive branch incorporates many spheres of activity in which it is required to act, even though there is no express statute that gives details of its powers in the aforesaid sphere.’

But since the basic principles of the system of government that prevails in Israel — which are the principle of the rule of law and the principle of administrative legality — each prevent the government from doing what it has not been authorized to do in statute, and in order not to leave the government without the power to act where it needs to act, the Knesset enacted s. 32 of the Basic Law: the Government, 5761-2001, which is the provision that authorizes the government to act in a ‘residual’ capacity, i.e., even without express and specific authority in statute. The purpose of the provision and the reasons for enacting it were discussed by Prof. I. Zamir in his book Administrative Authority (vol. 1, 1996), at p. 334:

‘In practice, the scope of the functions for which the government is responsible is far broader than the scope of the powers that statute gives the government and ministers in express language. Many of the government’s functions, some of which are basic functions of every government, are not mentioned at all in statute. This position is to a large extent dictated by the realities of life. The legislature is unable, and therefore does not seek, to regulate all the spheres of the government’s activity, which are very wide-ranging, and to determine expressly in every sphere the necessary powers. The result is that the government is engaged on a daily basis in a very wide range of actions that have no express basis in statute…

How is this position consistent with the principle of administrative legality? The answer is provided by s. 29 [today, s. 32] of the Basic Law: the Government…’

In his article, ‘Administrative Authority,’ 1 Mishpat uMimshal (1992) 81, at pp. 113, 115, Prof. Zamir expands on this issue, and we shall cite some of his remarks in that article:

‘Government activity that has no basis in statute conflicts with the principle of administrative legality. A broad loophole in the application of the principle of administrative legality vis-à-vis the government might undermine the effect of the principle vis-à-vis other administrative authorities. Moreover, government activity that is not regulated by statute tends to depart from the constraints of proper administration, and even the court has difficulty in scrutinizing it. Prima facie, it may be deduced from this that such activity is improper and prohibited. But such a conclusion is inconsistent with the needs of reality and common sense. Consequently, the need arises to find a solution to the problem in a manner that accepts the realities of life, while finding a middle road between reality and the principle of administrative legality.

… It would appear that the problem was finally resolved in 1968, by means of s. 29 of the Basic Law: the Government.’

7.    Section 32 of the Basic Law: the Government, 5761-2001, was therefore intended to build a constitutional bridge between the principles of administrative legality and the rule of law and the daily needs of the state, in order to allow the government to realize properly its role as the executive branch of the state. Thus, ever since the government acquired a residual power to manage the affairs of the state in an express statute — and what is more, in a Basic Law — we have known two things: first, the government may make use of those ‘residual areas’ even when there is no express authorization in a special law of the Knesset, and second, when taking action in those ‘residual areas,’ the government is acting by virtue of and in accordance with an authorization of a law of the Knesset. Thus the principle of administrative legality is completely satisfied in its formal sense, i.e., that government activity — all government activity — is done, and should be done, in accordance with an express statute. As for the rule of law in its substantive sense, we shall discuss this in our remarks below.

8.    Section 32 of the Basic Law: the Government, 5761-2001, gives the government very broad power to act beyond the limits of statute: to do acts and to carry out operations that statute has not regulated expressly and in detail. In the past, the question was asked whether the provisions of s. 29 of the Basic Law: the Government, 5728-1968, only provided that the government could act as the competent organ of state in the absence of a provision of statute empowering another organ, or whether it authorized the government to act on behalf of the state in general. It was decided that the latter interpretation was the correct one, and rightly so. Everyone agrees, therefore, that s. 32 of the Basic Law: the Government, 5761-2001, constitutes an independent source of authority for doing acts which the government wishes to do but which are not regulated in a law of the Knesset. See, for example, HCJ 8600/04 Shimoni v. Prime Minister [39], at paras. 9-12 of the opinion of President Barak; Zamir, ‘Administrative Authority,’ supra, at pp. 115-116; M. Cohen, General Powers of the Executive Branch (2002), at p. 174, and cf. ibid., at p. 230. In the spirit of this important case law ruling, we all agree that the residual power of the government is a power that is necessary and essential for its proper and effective functioning. Thus, and only thus, can the executive branch operate properly and effectively; thus, and only thus, can it run the state.

9.    We all agree therefore that the provisions of s. 32 of the Basic Law: the Government, 5761-2001, are essential. But even if we recognize the great importance of this provision of statute, we cannot escape the fear that it involves a danger — a considerable danger — of a violation of the principle of the rule of law and the democratic system. Thus we see, like in the case of any provision of statute that authorizes an executive authority to do certain acts, the government may slip and overstep the boundaries of the residual power given to it; and if this is true as a rule, it is particularly true when we consider the all-embracing wording of the provisions of s. 32. The truth is that in the various laws of the Knesset we will find many powers that are given to the executive branch — to ministers in the government and to other officials — but when we consider the scope of the power given to the government as residual power, and when we consider the exalted status of the government, there are considerable grounds for the fear that the damage which may result from the government overstepping its residual power is damage that may harm the democratic fabric of the state. Indeed, we cannot avoid the conclusion that the provision of statute that gives the government such broad power to act without a special authorization or approval from the Knesset may to no small degree blur the boundaries that separate the legislative branch and the executive branch, and at the same time it gives the government — so it may be argued — greater power than the power that it should be given in a democracy that is based on the doctrine of the separation of powers. Admittedly, the government is acting by virtue of statute, by virtue of the provisions of s. 32; but this power that was given to it in statute is so broad and so unlimited that it can be said that the rule of law in its substantive sense may suffer a mortal blow.

10. What, then, should we do so that what is good and necessary is not harmed or damaged by what is pernicious and bad? How should we establish the limits of the provisions of s. 32 of the Basic Law: the Government, 5761-2001, and reduce the risk that may arise from its improper use? How should we resolve the conflict between these two forces that pull in opposite directions — on the one hand, the force that seeks to extend the residual powers of the government in order to allow it to control and manage the affairs of the state with maximum effectiveness, and, on the other hand, the power that warns us and urges us to act to reduce the power of the government, because of the fear that too broad a power will undermine the principle of the rule of law and the democratic fabric of the decentralization of power and the separation of powers? The answer to all these questions will be found in restrictions that have been placed on the residual power of the government. With regard to these, we should distinguish between ‘internal restrictions’ and ‘external restrictions.’ ‘Internal restrictions’ are those restrictions that are expressly provided in the provisions of s. 32, whereas ‘external restrictions’ are restrictions that are required by the basic principles of the system of government and the legal system in Israel, and mainly by the position of the government as the executive branch alongside the Knesset as the legislative branch. Let us begin our remarks with the internal restrictions and afterwards we can turn to the external restrictions, which are the main ones in this case.

‘Internal restrictions’ on the power of the government

11. The provisions of s. 32 of the Basic Law: the Government, 5761-2001, contain two restrictions on the residual power of the government. One restriction provides that the residual power of the government is ‘subject to any law,’ and a second restriction provides that the residual power of the government enables it to do an act ‘whose performance is not delegated by law to another authority.’ These two restrictions are what make the power of the government under s. 32 a ‘residual’ power; they are what classify this power of the government as residual. It might be argued that the second restriction — the existence of another competent authority under the law — is already included in the first restriction (the restriction of ‘subject to any law’), but whether or not this is the case, for our purposes we are not required to distinguish between the two restrictions, and we shall indeed not distinguish between them. See and cf. Cohen, General Powers of the Executive Branch (2002), supra, at pp. 178-181; Zamir, Administrative Authority, supra, at pp. 336-338.

12. The power of the government according to s. 32 is a ‘residual’ power — that is its description and that is its essence and content — and the government may make use of it only when the legislature has left a ‘void.’ This is the case, for example, where the legislature has not called upon a competent authority to do a certain act. See HCJ 5100/94 Public Committee Against Torture v. Government of Israel [40], at p. 832 {585-586}. But when the legislature has its say, there is then no void — or the void has been filled — and the residual power, in the manner of a ‘residual’ power, is not created at all or it evaporates into nothingness. In the words of Justice Goldberg in Kiryat Gat Municipality v. State of Israel [33], at p. 844):

‘… When there is a law that creates an arrangement, the power of the government yields to it, and it may not create an alternative arrangement. If there was a legal void, it existed until the enactment of the law that created the arrangement. From that moment onwards, the void was filled, and the government no longer had any residual power in that same matter…’

13. Indeed, ‘… where there is legislation that addresses a certain issue, general administrative powers do not apply’ (Federman v. Minister of Police [38], at p. 652). The reason for this is obvious: if the government is permitted to act where the Knesset has empowered another authority to act, the rule of law will be seriously harmed, the doctrine of the separation of powers and the decentralization of power will be undermined and the authority of the Knesset will be unlawfully diminished. In the words of Justice Goldberg in Kiryat Gat Municipality v. State of Israel [33]:

‘An extension of the power of the government that will allow such a situation blurs the boundaries between the executive branch and the legislative branch and undermines the very nature of the constitutional system in Israel, which is based on the distribution of powers between the organs of government’ (ibid. [33], at p. 844).

A law that dictates a certain mode of operation obliges the government to act in the manner stipulated in the law, and it consequently prevents it from creating an ‘alternative track’ that is based on its residual power (HCJ 5062/97 Association of Insurance Appraisers in Israel v. State of Israel [41], at p. 190). Indeed —

‘The government may not determine an arrangement that will replace an existing statutory arrangement. It is not entitled to replace the statutory arrangement with another, alternative arrangement that was designed and formulated by it’ (HCJ 2632/94 Degania A v. Minister of Agriculture [42], at p. 729).

Cf. also HCJ 5018/91 Gadot Petrochemical Industries Ltd v. Government of Israel [43], at p. 786; and see also the position of Justice Haim Cohn in HCJ 35/62 Bachar v. Minister of Defence [44], at p. 809, and in HCJ 313/63 Haramati v. Director of Property Tax [45], at p. 361; but cf. the position of the court (per Justice Malz) in HCJ 381/91 Gross v. Ministry of Education and Culture [46], at p. 57.

14. Where the legislature has regulated a certain area of life expressly and specifically, it is clear that the government will not have any residual power. For if there is any meaning to the concept ‘subject to any law’ or the concept that the power is ‘residual,’ this is that meaning. If the government acts without permission in the same field that has been regulated by the legislator, not only can its activity not be called ‘residual,’ but it is activity that is contrary to the law. Thus, for example, Justice Goldberg told us the following in Kiryat Gat Municipality v. State of Israel [33]:

‘The proviso in s. 29 [of the Basic Law: the Government, 5728-1968, which is now s. 32 of the Basic Law: the Government, 5761-2001] that the government is competent to act “subject to any law,” does not merely tell us that the acts of the government should not conflict with any law or violate any law, but also that when there is a law that creates an arrangement, the power of the government yields, and it does not have an ability to create an alternative arrangement’ (ibid. [33], at p. 844).

In Association of Insurance Appraisers in Israel v. State of Israel [41], Justice Or was called upon to interpret the Natural Disaster Victims Compensation Law, 5749-1989, and in his analysis of that law he held that the expression ‘subject to any law’ tells us that before it exercises its residual power, the government has the duty first to exhaust the procedures in the statute. In his words:

‘Only after the question of the implementation of the statute has been considered, all the relevant considerations and reasons have been examined and considered objectively and reasonably, and after this procedure it is found that a natural disaster should not be declared — then, and only then, will the proviso of “subject to any law,” which is in s. 40 of the Basic Law: the Government [5752-1992, which is today s. 32 of the Basic Law: the Government, 5761-2001], not prevent the government from resorting, by virtue of its residual power, to another track, in order to consider whether to compensate the victims of a natural disaster on that track’ (ibid. [41], at pp. 191-192).

Thus Justice Or held that there is nothing that prevents the payment of compensation outside the Natural Disaster Victims Compensation Law, since the statute does not contain a negative arrangement. We should mention in this context that, in the opinion of Justice Dorner, the word ‘law’ in the expression ‘subject to any law’ includes not only legislation but also case law, and from this it follows that:

‘The proviso in s. 29 [today, s. 32] of the Basic Law: the Government, which makes the general powers of the government subject to the law, prevents it not only from acting contrary to a provision of statute, but also prohibits it from harming the rights of the individual’ (Kiryat Gat Municipality v. State of Israel [33], at p. 847).

This outlook is in essence shared by Prof. Zamir, but in his opinion ‘the legal source for human rights in Israel lies in the rules of common law that were absorbed in Israel’ (Zamir, ‘Administrative Authority,’ supra, at pp. 116-117; see also Zamir, Administrative Authority, supra, at p. 337).

15. An arrangement in statute that prevents the government from having residual power does not merely include a positive arrangement but also a negative arrangement (cf. LCA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables Ltd [47]). We should also say that we have known for some time that sometimes ‘there are cases where the silence of the legislature is more significant that its words, or at least as significant as its words, and if it refrains from determining a law, where it needed to do so or could have done so, then its silence speaks for itself and tells us clearly what was its position on the question under consideration’ (per Justice Silberg in CA 167/47 Minkovitch v. Fisztner [48], at pp. 42-43). Thus, where the silence of the legislature is ‘deliberate silence,’ this silence speaks to us; in other words, where the legislature chose deliberately to refrain from making a certain arrangement, we are consequently not dealing with a lacuna, and the silence of the law encompasses it in a certain negative arrangement. See CA 108/59 Pritzker v. Niv Ltd (in liquidation) [49], at p. 1549; BAA 663/90 A v. Bar Association Tel-Aviv District Committee [50], at p. 404. In the words of President Barak in Shimoni v. Prime Minister [39], at para. 12: ‘Only when the silence of a particular statute in a certain sphere cannot be interpreted as a negative arrangement is it permitted to make use, in that sphere, of the provisions of s. 32 of the Basic Law: the Government.’ In our case this question of a negative arrangement asserts itself most forcefully, and later in our remarks below we will address this question further.

16. The rule is therefore that the government is not competent to exercise residual power — or to be more precise, residual power, in as much as it is ‘residual,’ does not come into being — where the legislature has regulated or has deliberately refrained from regulating a certain course of action. The question of what the law is in each specific case is a question of the interpretation of the arrangement and how it integrates into the legal system as a whole, with its general principles.

‘External restrictions’ on the power of the government

17. Up to this point we have discussed two restrictions on the residual power of the government, which is the power provided in s. 32 of the Basic Law: the Government, 5761-2001. We called these restrictions ‘internal restrictions,’ since they are restrictions that are stipulated in the provision of statute that gives the government the residual power and they are an integral part of that power. The question is whether, apart from these two restrictions that were imposed on its residual power, the government is entitled and competent to act as it wishes and pleases (subject, of course, to the prevailing rules of administrative law)? Do only those two restrictions stipulated by the legislature in s. 32 limit the government when it acts by virtue of its residual power? Our answer to this question is a most definite no. The provisions of s. 32 do not exist in a vacuum, and the methods of interpreting them are not found solely in the section itself. The provisions of s. 32 are a limb of the body of Israeli law, and its scope of application shall be determined while taking into account everything around it, above it, beneath it and alongside it: basic principles, doctrines and the other rules and sub-rules that permeate Israeli law and run through the length and breadth of the legal system. Israeli law, like the laws of all nations — both in the present and in the past — is replete with basic principles, doctrines, premises, customs and outlooks that are all an integral part of the legal system and the rules in it. And if we understand the law in this way — and this is indeed how we should understand it — it logically follows that before we can thoroughly understand a certain provision of statute, we are obliged to examine it and to scrutinize it very well against the background of the legal system as a whole. In CA 3798/94 A v. B [51], at p. 182 {307}, I spoke of the relationship between morality and law, and this inter alia is what I said:

‘Morality and its imperatives are like a lake of pure water, and the law and its imperatives are like water lilies, spread over the surface of the water and drawing life and strength from the water. Morality nourishes the law at the roots and it surrounds the law.’

The same is true of the relationship between the provisions of statute and the basic principles and doctrines of the law. As we elaborated in CFH 7325/95 Yediot Aharonot Ltd v. Kraus [52], at pp. 73-74:

‘It is customary to say that the interpretation of statute begins with the words of the statute. This statement is of course correct when we wish to comprehend fully the words of the statute and how they relate to one another. But we are the persons who are doing our best to interpret the statute, and we are not a tabula rasa. Before we approach the statute we must ask: who are we? And the answer to this question is that we are those values, those principles, that morality, those proper outlooks on life. Thus it transpires that we start the interpretive voyage — whether consciously or unconsciously — with those values and principles and doctrines, the foundation upon which the law is based, and our path continues onward from them. We cannot “understand” a statute unless we examine it with the analytical tools that we carry with us, and these analytical tools are what will guide us.’

Similarly I said in HCJ 5503/94 Segal v. Knesset Speaker [53], at p. 562:

‘When we approach a statute of the Knesset, we do not come empty-handed. We come with a weight of language, linguistic definitions and meanings, social customs and morality, consensuses and first principles, justice and equity, principles and doctrines in our knapsack. Our minds and hearts have been trained in the skill of interpretation, consciously and unconsciously. When we approach the art of interpretation, we do not equip ourselves merely with a dictionary. We also have the Bible and our heritage, our love of mankind and our innate need to be free. This is how we approach a statute of the Knesset, equipped with all these work tools, and we do our best to interpret the text.’

See also LCA 7678/98 Benefits Officer v. Doctori [54], at para. 18 of the judgment.

We will commit a serious error if we ignore these basic principles and doctrines. Even though on the face of it they might be regarded as ‘external’ to the positive legal system, in reality they form the backbone that supports and protects the law; they support the legal system and the legal system is based on them. Law is replete with them even though they are not enshrined in an express provision of statute. They are present in every sphere of law and they encompass all the provisions of statute, including, of course, the provisions of s. 32 of the Basic Law, 5761-2001. And in encompassing the provisions of s. 32, all those principles demarcate the areas to which the power given in the section applies and they define its scope.

18. Indeed, the legal system — every legal system, including the Israeli legal system — is built on basic principles that comprise the genetic code of the norms that prevail in that system. The basic principles lie at the heart of every norm in the law. They include, for example, the principles of good faith, integrity, fairness and the like (LCA 6339/97 Roker v. Salomon [55], at pp. 269-270; ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables Ltd [47]); they include the basic human rights: human dignity, liberty, equality, free will and property rights (Israel Women’s Network v. Minister of Labour and Social Affairs [7], at p. 650; HCJ 6845/00 Niv v. National Labour Court [56], at p. 683); in the same way, ‘the democratic principle — as such — permeates the whole of the legal system in Israel, and adds itself to the genetic code of all the binding norms in Israeli law’ (HCJ 7351/95 Nevuani v. Minister of Religious Affairs [57], at p. 121; Rubinstein v. Minister of Defence [37], at p. 529 {201}). All these principles make up the law, and in the interpretation of statute they present themselves before the interpreter and demand that he gives them the place of honour that they deserve. This is the case with every provision of statute, and it is also the case with the provisions of s. 32 of the Basic Law: the Government, 5761-2001.

19. The residual power of the government under s. 32 of the Basic Law: the Government, 5761-2001, was not intended to free itself of the restraints of the basic principles. On the contrary, in the absence of any other provision — and there is no other provision — we should interpret the residual power of the government as a power that is subject to the basic principles of the legal system. Section 32 regards itself as subject to the restraints of the basic principles of the legal system, and it is compatible with them. Moreover, the section is designed to further these principles, and this purpose is compatible with it. It follows from this that there are acts and activities that the government will not be competent to do simply because they conflict with the basic principles of the legal system, including the basic constitutional outlooks on which our legal system is based. As President Shamgar told us in Federman v. Minister of Police [38], at p. 652:

‘There are actions that are not within the jurisdiction or power of the government, since exercising these without legal authorization is contrary to basic normative outlooks that derive from the character of our system of government.’

Indeed, we can presume that both s. 32 and its historical precursors in the Basic Laws were intended to be consistent with the basic constitutional outlooks in Israel, and that these basic outlooks are a basis for their existence and a part of the genetic code of which they are made. As President Barak said in Shimoni v. Prime Minister [39], at para. 14:

‘The purpose of this provision was not to undermine the basic principles of the constitutional system in the State of Israel. On the contrary, this provision was intended to realize these basic principles and it should be interpreted in the light of them… Section 32 of the Basic Law: the Government should not be interpreted in a manner that undermines the principles of the separation of powers, the independence of the judiciary, the substantive rule of law and human rights. Section 32 of the Basic Law: the Government should find its proper place within the framework of the comprehensive constitutional outlook that can be seen from the Basic Laws as a whole, and it should realize “basic normative outlooks that derive from the character of our system of government” … In this way we will achieve the proper balance between the practical need to ensure that the executive branch has a general power in order to realize its functions and the ethical need to ensure that this power is consistent with the comprehensive fabric of our constitutional outlook.’

20. In the context of the case before us, it has been held — and this case law rule is universally accepted — that the government is not authorized, by virtue of its residual power under the provisions of s. 32, to violate the basic rights of the individual. These rights are an integral part of the law, and a violation of them can be effected solely by means of a statute of the Knesset. Each of the basic rights ‘is part and parcel of every statute’ (HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [58], at p. 96); ‘Its force and importance are like the force and importance of statute,’ and ‘only express and unambiguous language in statute is capable of restricting or limiting…’ a right of this kind (ibid.). Moreover —

‘The “residual” power of the government is not a source of power that violates the liberty of the individual. The “residual” power of the government gives it power to act where there is an “administrative void”… Such an “administrative void” does not exist in the case before us, since it is “filled” with the general principle concerning the liberty of the individual. A violation of this liberty requires a special provision’ (per President Barak in Public Committee Against Torture v. Government of Israel [40], at p. 832 {585-586}).

Indeed, the basic freedoms that are a part of the genetic makeup of the law can be found in every norm in the law even though they are not mentioned in statute, and it follows from this that the government is not authorized to violate them unless it has been expressly authorized to do so by the Knesset. This was discussed by President Shamgar in Federman v. Minister of Police [38], at p. 652:

‘There are actions that are not within the jurisdiction or power of the government, since exercising these without legal authorization conflicts with basic normative outlooks that derive from the character of our system of government. This is the case with regard to basic rights that are a part of our positive law, whether they have been included in a Basic Law or whether this has not yet been done. Thus, for example, the government will not have power to close a newspaper on the basis of an administrative decision, unless there is an express provision of statute that regulates a matter of this kind, even if a Basic Law that defines the freedom of speech has not yet been enacted; such an act would be contrary to our basic outlooks concerning the liberties of human beings which are inherent in our system of government and which can only be restricted by statute… This means that the basic right of freedom of speech, which is a part of our positive law, creates a restriction that restrains the executive branch and does not allow it to avoid the prohibition against violating the freedom granted by it without authorization in law.’

See also Shimoni v. Prime Minister [39], at para. 17; Zamir, Administrative Authority, at p. 337; Kiryat Gat Municipality v. State of Israel [33], at p. 847; Cohen, General Powers of the Executive Branch, at pp. 275 et seq.. This case law ruling, we should point out, was further strengthened by the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, which are the Basic Laws that gave the rights provided in them a supreme status, and also went on to provide expressly that the rights provided in them may only be violated by statute or ‘by virtue of an express authorization’ in statute. Thus we see that not only have the basic rights that are included in the aforesaid two Basic Laws become statutory ‘law,’ and therefore the principle of ‘subject to any law’ provided in s. 32 applies directly to them, but it also states expressly in the Basic Laws that a violation of those rights requires express authorization in statute. It is clear that the general language of the provisions of s. 32 of the Basic Law: the Government, 5761-2001, does not amount to an express authorization of this kind, and therefore it does not allow the government to violate basic rights that the Basic Laws address. See the remarks of Prof. Baruch Bracha in his article ‘Constitutional Human Rights and Administrative Law,’ Itzchak Zamir Book on Law, Government and Society (2005) 161, at p. 190. See also Kiryat Gat Municipality v. State of Israel [33], at p. 847, per Justice Dorner; Zamir, ‘Administrative Authority,’ supra, at pp. 116-118.

Limits of residual power — the government as the executive branch

21. Alongside the basic rights of the individual, one of the basic principles on which the legal system in Israel is based — one of the most supreme principles — is the principle of the separation of powers and the decentralization of power. Let us now turn to this principle and its various derivatives.

22. There are three main branches of government in Israel: the Knesset, the government and the judicial system. We are currently concerned with the first two branches, and it is these that we will address. The Knesset is ‘the house of elected representatives of the state’ (s. 1 of the Basic Law: the Knesset), it is the ‘legislature’ (s. 1 of the Transition Law, 5709-1949), it is the ‘legislative branch’ (s. 7(a) of the Government and Justice Arrangements Ordinance, 5708-1948). As for the government, according to s. 1 of the Basic Law: the Government, 5761-2001, ‘it is the executive branch of the state.’ It need not be said that the concepts of ‘house of elected representatives,’ ‘legislature’ and ‘legislative branch,’ which are descriptions of the Knesset, and similarly ‘executive branch,’ which describes the government, cannot in themselves tell us the scope of the powers of the Knesset and the government and the boundary that separates the one from the other. Indeed, in order to examine the scope and the limits of the powers of the Knesset and the government — and within the scope of the powers of the government, to define the limits of the residual power — we need to examine and understand the basic principles that form the basis for the system of constitutional law that exists in Israel, since only in this way will we be able to read the map of the division of powers properly. These basic principles are, first and foremost, the principle of the rule of law (in the substantive sense of the concept) and the principle of the decentralization of power and the separation of powers. Within this framework, we recognize the supreme status of the Knesset and the subordination of the government to the Knesset and the laws of the Knesset.

23. The boundaries of the government’s power are determined with a view to its being an ‘executive’ authority that is subordinate to the legislative branch, and it is from this perspective that its residual power should also be examined. In determining the activities that fall within the residual powers of the government, we should, of course, consider the activities that according to our accepted constitutional tradition are regarded as activities that are in the government’s sphere of operations. Thus, for example, it is agreed that the government has the power to manage the foreign affairs of the state (see Federman v. Minister of Police [38]); matters involving the preservation of state security and matters ancillary thereto (HCJ 606/78 Awib v. Minister of Defence [59]; HCJ 302/72 Hilo v. Government of Israel [60]; HCJ 287/91 Cargal Ltd v. Investment Centre Administration [61], etc.; see also, for example: HCJ 222/68 National Groups Registered Society v. Minister of Police [62]; Bracha, ‘Constitutional Human Rights and Administrative Law,’ supra, at pp. 174-175). The main point for our current purposes is that the residual power of the government only exists for the purpose of realizing its power as an executive authority within the field of ‘executive’ activity. Since the government is the ‘executive branch,’ the purpose of s. 32 of the Basic Law: the Government, 5761-2001, is to give it the tools to carry out its role as the executive branch, and its power should be interpreted and preserved within the scope of this purpose. The Basic Law sought to give the government tools to realize its powers as an executive authority, and the limits of the residual power should be determined, almost automatically, by the limits of executive power. Thus, where the boundaries of executive powers are determined, there too, in most cases, the boundaries of the residual power will be determined within the framework of the external limitations. The boundary of the residual power is therefore the boundary of executive power, and the government is not permitted to cross that boundary and trespass into an area that was not originally allocated to it. This was discussed by President Barak in Shimoni v. Prime Minister [39], at para. 15:

‘Residual power operates within the limits of the government’s powers as the executive branch. It should be regarded as a tool to realize the stipulation of the Basic Law: the Government that the government is the executive branch of the state. No use should be made of it in order to turn the government into an organ that is competent to act in areas that fall outside the limits of the executive branch.’

24. Against the background of these basic principles that we have discussed, let us look closer at our case, and try to examine the external framework for the residual power of the government. In other words, let us make our best efforts to translate the basic constitutional concepts that we have mentioned — especially the power of the Knesset as the legislative branch and the power of the government as the executive branch — into legal norms with legal significance, and apply these norms to the question of the government’s residual power. Let us study the limits of executive power and from this we will know the limits of the residual power.

The rule of law, the separation of powers and the decentralization of power

25. The principle of the rule of law in Israel instructs us with regard to the system of the separation of powers and the decentralization of power: the legislature should exercise legislative power; the executive should exercise executive power; the judiciary should exercise judicial power. At the same time there should be mutual checks between the branches of state and a balance of their powers and authority. In the words of Professors Rubinstein and Medina in their book, The Constitutional Law of the State of Israel, at pp. 127-128:

‘The separation of powers is expressed in two basic characteristics: one is the division of power between the various authorities. Legislative power, namely the power to determine fundamental social issues and to make general arrangements, is given to the legislative branch; the power to implement the general arrangements is given to the executive branch; and the power to decide disputes with regard to the exercising of power by the other branches is given to the judicial branch… A second basic characteristic of the principle of the separation of powers is the mutual supervision between the powers and determining mechanisms for balancing between them.’

This delicate and complex formula of the decentralization of power and mutual supervision is what empowers the three branches of government and determines the relations between them. This is what creates and preserves the rule of law and democracy, and undermining this is likely to endanger the whole system of government. We recently discussed the delicate balance between the three branches of government and the great danger inherent in a breach of this balance in HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [63]:

‘The essence of the formula is this: each of the three branches involved in government has its own sphere, in which it has sole power — the legislative sphere, the executive sphere and the judicial sphere. At the same time, each branch counterbalances the other two branches and is counterbalanced by the other two branches, so that no branch encroaches upon another and no branch seizes control of the sphere of the other two branches. The branches are therefore separate from one another, but also connected to one another. We are speaking of a kind of roundabout with three seats. The art of statesmanship is to maintain one’s balance, and for the roundabout to rotate gently for the benefit of all. However, when one of the powers tries to exert its authority excessively, or when one of the riders on the roundabout upsets the balance, arrangements are undermined and the whole system of government is shaken.’

 26. The purpose of the principle of the separation of powers and the decentralization of power is obvious: it is to decentralize the powers of government and to give them to different bodies and thereby prevent a ‘concentration of power in one body, something which is characteristic of a dictatorial system of government’ (HCJ 6971/98 Paritzky v. Government of Israel [64], at p. 790). Indeed, experience has taught us that where both legislative power and executive power are entrusted to one authority, there is no liberty, there are no human rights, democracy dissipates and tyranny prevails. We were taught this by no other than the author of the doctrine of the separation of powers, Baron de Montesquieu, in his book De l’esprit des lois (On the Spirit of Laws):

‘Lorsque, dans la même personne ou dans le même corps de magistrature, la puissance législative est réunie à la puissance exécutrice, il n’y a point de liberté; parce qu’on peut craindre que le même monarque ou le même sénat ne fasse des lois tyranniques pour les exécuter tyranniquement.

Tout serait perdu, si le même homme, ou le même corps des principaux, ou des nobles, ou du peuple, exerçaient ces trois pouvoirs: celui de faire des lois, celui d’exécuter les résolutions publiques, et celui de juger les crimes ou les différends des particuliers.’

 

‘When legislative power is united with executive power in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise that this monarch or senate will enact tyrannical laws to be executed in a tyrannical manner.

All would be lost, were the same man or the same body, whether of nobles or of the people, to exercise these three powers — that of enacting laws, that of executing public resolutions, and that of trying crimes and the cases of individuals’ (ibid., book 11, ch. 6; translated by the editor).

The essence of the principle of the separation of powers can therefore be found mainly in the decentralization of powers that are divided among different authorities, in the guarantee that a single entity will not have powers that are too great and thereby become a dictatorial leader, and in upholding the principle that the authorities that hold the various powers will be separate from one another. Thus we know that the three branches that hold separate powers may not enter the realm — or to be more precise, the palace — of the others. Each power should operate and act solely within the scope of the authority that has been given to it in the law (and in the constitution) and it may not trespass into the realm given to the other powers. The legislature shall not engage in executive or judicial acts; the executive shall not engage in legislative and judicial acts; the judiciary shall not engage in legislative and executive acts. We discussed some of these issues in Paritzky v. Government of Israel [64], where we said, at p. 790:

‘The combination of words “separation of powers” does not indicate the full content of the expression. The essence of this principles does not lie in the “separation of powers,” i.e. the separation between the branches for the sake of separation, but in the decentralization of power and authority between different and separate branches. The essence lies in the legislature engaging solely in legislative acts and not in executive and judicial ones, the executive engaging solely in executive acts and not in legislative and judicial ones and the judiciary engaging solely in judicial acts and not in legislative and executive ones.’

We went on to say (ibid. [64], at p. 807):

‘The legislature is intended for passing legislation; the executive is intended for executive action; the court is intended for judicial activity. Where one of these three trespasses into the realm of another — without express authority in a law — the balance that alone can sustain proper government and administrative arrangements is undermined. This is the case when the executive authority engages in legislative activity and the same is true where the legislative authority seeks to block the path to the courts…’

Indeed, the principle of the decentralization of power is what lies at the heart of the democratic system of law that prevails in Israel.

‘The brain of democracy is made up of three lobes: the legislative lobe, the executive lobe and the judicial lobe. The brain — with its three lobes — is what controls the body, gives the body vitality and shapes its life. If one of these three lobes is paralyzed, democracy vanishes and is no more’ (CA 733/95 Arpal Aluminium Ltd v. Klil Industries Ltd [65], at p. 630).

Now that we have said this, we should add that in reality, as we all know, the principle of the separation of powers and the decentralization of power is not observed and upheld completely and absolutely. Real life is not like life in a closed laboratory, and there are cases where the powers intermingle. But this truth cannot detract from the essence that we are obliged to consider at all times, namely the division of powers and authority between the branches of government.

27. The principle of the separation of powers tells us therefore that there are powers that are separated from one another, and together with the principle of the decentralization of power we see that functions and powers are divided between various organs. In our case, functions are divided between the legislature and the executive: the legislature legislates — i.e., it determines general arrangements according to which members of society act — and the executive branch implements and executes these. Moreover, the principle of decentralization tells us that it is prohibited to cross the boundaries between the branches. Each branch has been permitted to act in the realm allocated to it and it is prohibited from acting in the realm of the other branches. For our purposes, the legislature should not implement or execute statute, whereas the executive branch should not legislate.

The rule of law, the separation of powers and the decentralization of power: primary arrangements (continued)

28. The basic approach that lies at the heart of the constitutional system in Israel tells us that the legislative branch — the Knesset — is the organ that stands at the top of the pyramid of the branches of government that determine the norms that prevail in Israel, and that the government and its agencies have the function of implementing the norms determined by the Knesset. In the language of the law, it is said that the Knesset is competent to determine, in statutes, ‘primary arrangements’ — arrangements that determine the main norms and the criteria for implementing them — whereas the government is in principle only competent to determine, in various types of regulations and actions, ‘secondary arrangements.’ In other words, the government and its agencies are not competent to determine ‘primary arrangements’ other than at the behest of the legislature, by virtue of a law of the Knesset. This basic outlook, which derives from the principle of the rule of law (in its substantive sense), has been well established and clarified in case law and scholarly literature. Thus, for example, we were taught many years ago by our great teacher of administrative law, Prof. Yitzhak Hans Klinghoffer, in his article ‘The Rule of Law and Subordinate Legislation,’ Hed HaMishpat (1957) 202, at p. 203:

‘… Every administrative act, whether it is an act of subordinate legislation or an individual act, should be determined, from the viewpoint of the content of all its main parts, by a norm that takes the form of statute. In this sense, it is possible to say that in a state where the rule of law prevails, the power to determine primary arrangements is given to the legislature, whereas the organs of the administration may determine secondary arrangements only, within the framework of the law.’

This basic principle has become established in case law, and the courts have again and again made clear that the Knesset is the source for enacting ‘primary arrangements’ that determine the way of life in the state, and the executive authority — the government and its agencies — has the power to determine secondary arrangements only. Thus, for example, President Barak tells us in Rubinstein v. Minister of Defence [37], at p. 502 {164}:

‘A basic rule of public law in Israel provides that where a government act is enshrined in a regulation or an administrative provision, it is desirable that the general policy and fundamental criteria underlying the act should be enshrined in primary legislation by virtue of which the regulation was enacted or the administrative order was made. In more “technical” language, the basic rule provides that “primary arrangements” that establish the general policy and the guiding principles should be determined in a law of the Knesset, whereas the regulations or the administrative orders should only determine “secondary arrangements”.’

Justice Or added in HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructure [66], at p. 56:

‘It has been established in case law that for reasons of the separation of powers, the rule of law and democracy (in its formal-representative sense and its substantive sense), it is proper that the determination of general and fundamental policy — the one that constitutes the primary arrangement — whose effect on the lives of individuals in society is great, should be made in primary legislation, whereas the methods of realizing and implementing the policy may be determined in subordinate legislation by the authorities.’

This, then, is the principle of primary arrangements, the principle that tells us that the main norms should be determined by the legislature, the Knesset, and not by the executive branch, the government. Indeed, we have known for a long time that ‘there is no legislator other than the legislature, and it alone has the power to pass acts of legislation’ (CrimA 53/54 Eshed Temporary Transport Centre v. Attorney-General [67], at p. 819), and ‘when we say legislation, we are referring not only to the formal act of creating statute, but to the fact that primary arrangements should be determined specifically by the legislature’ (Paritzky v. Government of Israel [64], at p. 790).

Indeed, the court has held, time and again, that the principle of the rule of law in a democracy teaches us ‘that primary arrangements must be determined in primary legislation. Secondary legislation should carry out the arrangements prescribed in statutes’ (Paritzky v. Government of Israel [64], at p. 777). ‘It is desirable… that the primary legislator should determine the primary arrangements, and leave to the secondary legislator the determination of the secondary arrangements’ (Horev v. Minister of Transport [29], at pp. 75-76 {233}). See also, for example, HCJ 1539/05 Mashlat Law Institute for the Study of Terror and Assistance of Terror Victims v. Prime Minister [68], at para. 4 of the judgment; HCJ 144/50 Sheib v. Minister of Defence [69], at p. 411; HCJ 113/52 Sachs v. Minister of Trade and Industry [70], at p. 702; A. Barak, Legal Interpretation (vol. 2, 1993), at p. 528; I. Zamir, ‘Guidelines of the Attorney-General — Subordinate Legislation: Practice and Guidelines,’ 11 Tel-Aviv University Law Review (Iyyunei Mishpat) (1986) 329, at p. 345, etc..

29. This basic approach, according to which primary arrangements are made by the primary legislature, which is elected by the people, whereas the executive branch, the government, is only supposed to determine secondary arrangements, is part and parcel of the principle of the rule of law. As the court said in HCJ 2740/96 Chancy v. Diamond Supervisor [71], at p. 504:

 ‘The principle of the rule of law in its substantive sense tells us that “primary arrangements” should find their place in a statute of the Knesset, and that regulations are only intended, in principle, to implement statutes. This is the pillar of fire and this is the pillar of cloud that guide us on the road night and day, and we shall follow them.’

The principle of the rule of law in the substantive sense is the source for all the principles that are the basis of democracy: the separation of powers and the decentralization of power; protection of human rights, etc.. These principles are interconnected with one another — in reality, they are manifestations of the same basic principle — and they are all intended solely to prevent a concentration of power in the hands of one person or a small group of persons, and to protect the individual against the arbitrariness of the government and the administration. Each of these principles that we have listed, whether on its own or together with the other principles, tell us that primary arrangements must be determined specifically by the primary legislator, the Knesset, and that the government should only have power to determine secondary arrangements.

30. The meticulous and precise implementation of the rule of law requires primary arrangements to be determined solely in primary legislation. The legislature may not waive its powers in favour of the executive and administrative branch. In the words of Prof. Klinghoffer, in his article ‘The Rule of Law and Subordinate Legislation,’ supra, at p. 203:

‘… The rule of law also does not allow the legislature to waive its power to determine primary arrangements in favour of the administration, i.e., to transfer this power to it. Any delegation of the aforesaid power to the administrative branch is contrary to the rule of law. Where the rule of law prevails, the legislature is not free to choose between two paths, i.e., to restrict the administration by enacting primary arrangements itself, or to authorize the administration to do this legislative work in its stead; it is obliged to determine these arrangements on its own. The principle of the rule of law demands that every administrative act should be enshrined, in so far as its main and important characteristics are concerned, in primary arrangements that are determined in a formal statute, and that determining those arrangements should be in the exclusive jurisdiction of the legislature and should not be delegated to administrative authorities.’

But an absolute separation of this kind between the legislature, which enacts primary legislation, and the executive, which executes and implements them, only exists in Utopia, since —

‘The complexity of life in modern society leaves the legislature with no choice other than to transfer some of its powers to the executive branch, mostly by delegating to the government and those who act on its behalf the power of enacting regulations that contain primary arrangements (praeter legem regulations)’ (Paritzky v. Government of Israel [64], at p. 790; see also Rubinstein v. Minister of Defence [37], at pp. 504-505 {166-167}).

We are therefore witnesses to a phenomenon, which is commonly known, that the Knesset authorizes the executive branch on a frequent basis to determine primary arrangements in various matters. And the more complex our lives become, the more the legislature delegates the power to make primary arrangements to the executive branch. But, even if we have become accustomed against our will to this undesirable phenomenon — ‘undesirable’ in that it undermines the important principle of the separation of powers and the decentralization of power — the power of the executive branch in all these cases must be enshrined in a law of the Knesset, and apart from in exceptional cases (such as traffic regulations, for example) the legislature directs the executive branch as to how to exercise its power. This phenomenon as a whole and the problems that it creates were discussed by President Barak in Rubinstein v. Minister of Defence [37], and this is what he said (at pp. 504-505 {168}):

‘… primary legislation, which empowers the executive branch to carry out legislative or administrative acts, should determine the primary arrangements within whose scope the executive branch will operate.

“If the Knesset is the ‘legislative branch,’ then only an authorization for subordinate legislation that implements the principles and basic criteria (the primary arrangements) that were prescribed in the primary legislation is consistent with this principle”…

By contrast, if the primary legislation authorizes the subordinate legislator to determine primary arrangements, without any directive or guidance, this constitutes a violation of the principle of the separation of powers. “When the Knesset divests itself of the mantle of legislator and entrusts it to the public administration, the legislature seriously violates the principle of the separation of powers”…’.

31. The essence of the matter is that the principle of the primary arrangements and the principle of the separation of powers and the decentralization of power are both, in practice, merely different aspects of the same basic outlook. And the basic outlook that nourishes both of these at their roots is merely this, that primary arrangements are supposed to be determined in a statute of the Knesset — specifically in a statute — whereas the executive branch, the government, is not authorized to determine primary arrangements by virtue of its own authority unless it has been permitted to do so in statute. We should also say that notwithstanding the fact that the principle of the separation of powers and the decentralization of power applies with equal strength, prima facie, to both the legislative and the executive branches, in principle ‘the essence of the principle of the separation of powers seeks to limit the power of the executive branch’ (Rubinstein and Medina, The Constitutional Law of the State of Israel, at p. 159). The reason for this is that unlike its two colleagues, the role of the executive branch is to execute and implement the law and to ensure that citizens comply with norms of conduct.

The principle of primary arrangements as a corollary of the democratic principle

32. Moreover, the requirement that primary arrangements should be determined in a statute of the Knesset — specifically in a statute of the Knesset — is necessitated by the system of government in Israel, which is a system of representative democracy. This was discussed by Justice Beinisch in Israel Poultry Farmers Association v. Government of Israel [63] (at para. 10 of her opinion):

‘The approach according to which the fundamental decisions and norms that bind citizens should be adopted both formally and substantively by the legislature and not by the executive is based not merely on the principle of the separation of powers but is derived from the very concept of democracy and from the representative democracy practised in Israel.’

And as the court said in Nevuani v. Minister of Religious Affairs [57], at p. 121:

‘... The democratic principle — as such — permeates the whole legal system in Israel, and it combines with the genetic code of all the binding norms in Israeli law. The genetic force of the democratic principle is not, admittedly, equal in each norm, but there is no norm that is completely devoid of it. In each case we are required to examine the force of the democratic principle, and to decide whether it prevails over other principles and interests that compete with it, or whether it yields to them, even if only in part.’

See also Yediot Aharonot Ltd v. Kraus [52], at pp. 72-74.

Indeed, Israel is a democracy. This is stated ceremoniously by the Basic Law: Human Dignity and Liberty, in s. 1A, and by the Basic Law: Freedom of Occupation, in s. 2. Even though a bystander might imagine sometimes that the government is the supreme organ of state, rather than the Knesset (see, for example, the discussion of the ‘arrangements laws’ in Israel Poultry Farmers Association v. Government of Israel [63]), let us not be deceived and permit ourselves to be misled by this erroneous impression. The Knesset is the house of elected representatives of the state; it is the supreme legislative branch, and the government is the executive branch; the Knesset is elected in general and free elections and has the confidence of the people (ss. 4 and 5 of the Basic Law: the Knesset), whereas the government holds office only by virtue of the confidence of the Knesset (s. 3 of the Basic Law: the Government). Since the Knesset was elected by all the citizens of the state, it represents the citizens and acts as their spokesman. When we realize this, we will also realize that the Knesset alone has the power to decide the basic issues of the state, i.e., to determine primary arrangements for leading the state and its inhabitants. The citizen placed his confidence in the Knesset and thereby authorized it to determine his lifestyle. As President Barak told us in Rubinstein v. Minister of Defence [37], at p. 508 {173}:

‘Democracy means the rule of the people. In a representative democracy, the people choose its representatives, who act within the framework of parliament… The major decisions concerning the policy of the state and the needs of society should be made by the elected representatives of the people. This body was chosen by the people to enact its laws, and it therefore enjoys social legitimacy in its activity of this kind… Indeed, one of the aspects of democracy is the outlook that the fundamental and substantive decisions concerning the lives of the citizens should be made by the body that was elected by the people to make these decisions.’

It follows from this that (ibid. [37], at p. 510 {175}):

‘Thus from the democratic character of the political system it follows that subordinate legislation and administrative directives of the executive branch should have both a formal and a substantive basis in primary legislation, the creation of the primary legislator. The legislature should not transfer the decisive and difficult decisions to the executive branch without giving it instructions. Even if it is directly elected by the people… its function — as its name tells us — is an executive one.’

In other words, the Knesset was chosen by the people to decide basic issues of the state, and we will not find that it is entitled to shirk its authority and transfer it to the government. If it subjects its will to the will of the government, if it yields to the will of the government, then the Knesset will betray its role and the confidence that the people have placed in it. This was discussed by Prof. Zamir in his article ‘Administrative Legislation: The Price of Efficiency,’ 4 Hebrew Univ. L. Rev. (Mishpatim) 63 (1972), at p. 80:

‘The Knesset can and should fulfil its central role, without which there is almost no reason for its existence, and this is the role of determining the general principles by means of statute. If the legislature shirks this role for any reason, it will fail to carry out its function, undermine its very existence, and what is worse, it will undermine the basis of the democratic nature of the system of government. A political system in which the legislative branch transfers the function of legislating, in the sense of determining general principles, to the public administration will remain a democracy only in name and appearance, but not in practice.’

See also A. Barak, ‘Parliament and the Supreme Court — A Look to the Future,’ 45 HaPraklit 5 (2000), at p. 7:

‘The supremacy of the Knesset implies that the decisions that are important and fundamental to the nature of the system of government will be made by the Knesset and not by the other branches. This is a unique power of the Knesset. This power is accompanied by a duty. The Knesset itself is liable to realize this power, and it may not... transfer this power to another.’

33. Thus we see that the democratic principle also leads to the conclusion that the power to determine primary arrangements belongs to the Knesset, and that the Knesset should not transfer any of this power to the executive branch, at least not without directing it how to act and what path to follow.

Returning to the provisions of s. 32 of the Basic Law: the Government, 5761-2001, and the limits of residual power

34. Section 32 of the Basic Law: the Government, 5761-2001, is a provision of law that presents the interpreter with quite a few problems and difficulties. Interpreting it literally as it appears at first glance may lead the interpreter to very far-reaching conclusions. It may appear that not only did the government acquire by means of s. 32 a very broad power to act outside the framework of statute — a power that can be described as a limitless power — but also the provision itself does not contain any strict criteria, or any criteria at all, for exercising the power in practice. It may follow from this, one might say, that the government is authorized to make any arrangement that it wishes, provided that the primary legislature, the Knesset, has not addressed that matter and has not determined another arrangement as it sees fit. It need not be said that in the absence of any guide, and under the pressures of everyday life, the government and those acting on its behalf are likely to be drawn into making that power into a basis for activities that by their very nature were not entrusted, nor should they be entrusted, to the executive branch. In the words of Prof. Bracha in his article ‘Constitutional Human Rights and Administrative Law,’ supra, at p. 175:

‘Since the scope of the authority granted in s. 32 is not clear, there is great danger that resorting to it may constitute a source for an unnecessary broadening of the powers of the executive branch, as well as its trespassing into the realm of the other branches, the legislative branch and the judicial branch.’

We should cast off this interpretation of the law as an undesirable interpretation. We cannot accept that in such a manner — almost with unlimited authority — the Knesset delegated to the executive branch some of the legislative power entrusted only to it; that the Knesset in this way cast off the power of legislation and transferred it to the government. A separate question is whether the basic principles in a democracy, in which the doctrine of the separation of powers and the decentralization of power prevails, as in Israel, do not fundamentally rule out any power of the legislature to transfer primary legislative power to the government, at least in matters of primary arrangements. But there is no need for us to trouble ourselves with this weighty constitutional question. Let us content ourselves therefore by saying that the interpretation that we mentioned above is unacceptable. The provisions of s. 32 have another interpretation, and this is an interpretation that combines what is good with what is advantageous and brings reality close to the ideal. This other interpretation is the interpretation that is acceptable to us.

35. All streams lead to the sea, and all the basic principles in democracy and in Israel law — and in particular the principle of the rule of law in its substantive sense together with the secondary principles derived from it — lead to the conclusion that primary arrangements were entrusted to the primary legislature, to it and to no other, which also excludes the executive branch. There are two main reasons for this fundamental principle. First, it is to protect in so far as possible the liberties of the individual against executive arbitrariness. This is to say that ‘the requirement that primary legislation should determine the primary arrangements, whereas subordinate legislation or administrative orders should deal only with executive arrangements, is based on the need to protect the liberty of the individual’ (Rubinstein v. Minister of Defence [37], at p. 514 {180}). Second, it is to determine the limits of the power of the executive branch in its relations with the legislative branch. In other words, the legislative branch, which is the branch that the citizens of the state elected as their representatives, is the one that should speak for them. It is the one that should determine what may and what may not be done in society and in the state — it, and no other. Once we realize all this, it follows that we will also realize that the residual power that the government acquired in the provisions of s. 32 of the Basic Law: the Government, 5761-2001, which is a small part of all the powers of the government, does not by its very nature contain the power to give the government authority to determine primary arrangements. If we give another interpretation to the provisions of s. 32 — an interpretation that the residual power contains the power to determine primary arrangements — that interpretation will conflict directly with the basic principles of which we have spoken and undermine the principle of the rule of law in its substantive sense, and it may deal a mortal blow to the rights of the individual. Indeed, this other interpretation — the interpretation with which we do not agree — may be argued by some to be consistent with the principle of legality in its narrow and restricted sense. But the power that the government will acquire in accordance with that interpretation is such broad and unlimited power that the fear — and it a considerable fear — of harm to the rule of law will be sufficient to reject that interpretation. As Knesset Member Prof. Klinghoffer said, when he explained his opposition to the enactment of the provisions of s. 32 (at that time — s. 29):

‘The serious nature of this arrangement lies in the fact that it is in total conflict with the principle of the rule of law… The rule of law does not mean that it is sufficient for every official act to have a formal basis in statute. If this was the case, then there would be no reason to oppose section 29 [now section 32], since it will create the so-called “residual” power of the government and serve as a basis for it. But this meaning is not the accepted meaning of the rule of law. It would drain the idea of the rule of law of any content. Even in dictatorships there are laws, but they give the dictator an unlimited authority to do whatever he wishes. Is that called a state where the rule of law prevails?’ (Knesset session of 6 August 1968, Divrei HaKnesset, vol. 52, at p. 3101).

Indeed, we in the court have also discussed the dangers inherent in s. 32, and we have said that the broad power that the government acquired under this section to determine arrangements that are not mentioned in statute gives rise to difficult questions regarding the rule of law (Shimoni v. Prime Minister [39], at para. 12). There can only be one single conclusion that is implied by all of the above: the provisions of s. 32 are not capable of authorizing the government to determine primary arrangements.

36. The essence of the matter is that s. 32 of the Basic Law: the Government, 5761-2001, ought to be subservient to the basic principles of the law. For our current purposes we can say that it does not have the power to authorize the government to determine primary arrangements that are entrusted — according to the principles of the system of government in Israel — solely to the legislative branch, which is the Knesset.

The difference between a primary arrangement and a secondary arrangement

37. Now that we know that the residual power of the government pursuant to s. 32 of the Basic Law: the Government does not include a power to determine primary arrangements and that the determination of primary arrangements is the sole prerogative of the Knesset, whereas the government only has power to determine secondary or executive arrangements, there still remains the question of which criterion we should adopt to determine what is a primary arrangement. How do we distinguish between a primary arrangement and a secondary arrangement? The answer to this question is not at all simple, and the boundary between primary arrangements and secondary arrangements can sometimes be somewhat vague. Indeed, there are arrangements with regard to which everyone will agree that they are primary arrangements or secondary arrangements. We all agree, for example, that obligations that the state imposes on the individual — an obligation to pay tax, an obligation to serve in the army and other similar obligations — are all primary arrangements. By contrast, deciding upon forms that the individual is obliged to complete in order to implement a certain law is a secondary arrangement. But the main issue is the grey area between these two extremes, and the grey area, unfortunately, is a very broad area. It can be said of this area that the determination of the question of the distinction should be made in each case by addressing the nature and substance of this issue under discussion, the background of the basic principles upon which the legal system is based, and by using common sense and our logical faculties. Indeed, when we say that primary arrangements are those arrangements that by their very nature should be determined by the Knesset, and that the nature of the arrangements and the circumstances of the case will determine the matter, we are resorting in some degree to a tautology. As the court said in Paritzky v. Government of Israel [64], at p. 790:

‘Primary arrangements are those arrangements which, because they relate to norms of conduct that apply to the whole public or to basic issues in our lives, we expect the primary legislator to determine in statute… This definition of primary arrangements is a somewhat circular definition, and the identification of these primary arrangements will be made when the matter arises and on a case by case basis.’

At the same time, once we know that the starting point for the voyage of interpretation and deliberation is found in the basic principles that shape the legal system in Israel — the rule of law (in its substantive sense), the principle of the separation of powers and the decentralization of power, the rights of the individual, etc. — we shall also know that we can make use of these substantive principles to solve the difficulty. Therefore we can say that the substance of the arrangement, its social ramifications and the degree to which it violates the liberty of the individual all affect the determination whether we are dealing with a primary arrangement or a secondary arrangement. In the words of Justice Naor in HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [72], at p. 760:

‘The distinction between a primary arrangement and a secondary one is not straightforward. The nature of the arrangement, its social ramifications, the degree to which it violates the liberty of the individual — all of these affect the scope of the primary arrangement and the degree of detail required of it; even in a modern democracy it is difficult to uphold the doctrine of primary arrangements fully.’

The formulae for determining the scope of a primary arrangement vary, and there is no reason for us to go into them at length. All of this and more was discussed by my colleague President Barak in Rubinstein v. Minister of Defence [37], and whoever studies that judgment will understand the matter. See ibid. [37], at pp. 515-517 {182-185}.

38. The answer to the question whether a certain activity of the government constitutes a primary arrangement or not will therefore be found in the circumstances of each individual case, while taking into account the nature and substance of the matter and relying, of course, on good common sense and logic. Thus, inter alia, we should examine the degree to which the arrangement affects the public in Israel, and it is clear that an action that is designed to have a limited and specific purpose and is close in nature to executive powers should not be treated in the same way as an action that is capable of affecting a whole sector of the public, or even society as a whole, and which is close to a primary arrangement according to its definition (cf. Rubinstein v. Minister of Defence [37], at pp. 523, 529 {193, 202}; HCJ 910/86 Ressler v. Minister of Defence [73], at p. 505). Let us therefore examine the purpose of the act to see whether it is designed for a purpose that is a subject of disagreement among the public — a purpose that may arouse the anger and dissatisfaction of parts of the people — or whether it is supported by a broad public consensus (Rubinstein v. Minister of Defence [37], at pp. 527-528 {198-201}); the cost of the act will also affect its nature, and it is clear that an act whose financial significance is minimal cannot be treated in the same way as the transfer of tens of millions of sheqels from the public purse to a certain sector (cf. s. 40(a) of the Budget Principles Law, 5745-1985).

39. The extent of the legislature’s involvement in an act and its effect on it will also shed light on the question whether an arrangement is a primary one or a secondary one. Thus, for example, we should examine if we are dealing with acts that were intended to ensure the implementation of a statute that is in the advanced stages of legislation, or whether the act requires the approval of the Knesset or its committees (Shimoni v. Prime Minister [39], at para. 4 of my opinion). The circumstances of the case will also affect the nature of the arrangement. Thus, for example, we cannot ignore the stage at which the matter is brought before the court — whether it is before the event or after the event — since scrutiny and guidance before an event are not the same as scrutiny and guidance after an event (Shimoni v. Prime Minister [39], ibid.). The question of how urgent an activity is should be examined: are we speaking of an urgent act that the government is required to carry out as the executive branch of the state, or of a long-term policy decision that the Knesset can and should consider? Weight should be given to the degree of public reliance on a government promise, etc.. The list of considerations, it need not be said, is not a closed list. The decision, as aforesaid, should be made in accordance with common sense and logic, provided that we are guided by the basic principles of the rule of law and the other principles of which we spoke above.

Is a transfer of money from the state budget a primary arrangement?

40. Now that we know that the provisions of s. 32 of the Basic Law: the Government, 5761-2001, do not contain the power to authorize the government to determine primary arrangements in law, let us turn to look at our own case, and let us ask whether the government is permitted, by virtue of the state budget and according to its residual power in s. 32 — according to these alone since there is no specific law that authorizes it in this regard — to determine an arrangement according to which money from the state treasury will be allocated for certain purposes or for certain sectors of the population. If we compare the state to a body, then the budget is the blood that flows through the arteries and veins of the body, it is the elixir of life that allows the body to live and function. The blood flows throughout the body and is what allows the limbs to function, each according to its role, and the whole body to live and move. The question that arises, therefore, is the following: according to the wording and provisions of s. 32 — subject to every law and in the absence of any other authority that is authorized to carry out the act — is the government authorized, on behalf of the state, to allocate money from the state budget as it wishes and without any limit, merely by relying on what is stated in the annual budget law? Do the budget law and its residual power — in the absence of a specific law that allows it to expend budget money for various purposes — combine to make the government the sole arbiter and authority with regard to the ways of allocating the budget money?

41. In the past, the court has expressed criticism of the undesirable practice that has taken root in the activity of Israeli governments, whereby the government allocates huge budgets for certain purposes or for certain sectors of the population without a law that is designated for this purpose, without clear criteria being determined by the legislature, and without the Knesset, in its capacity as legislator, considering these transfers of money, ordering them or at least approving them. We compared these huge expenses to benefits that the government allocates for persons in need under an express and detailed statute, and inter alia this is what we said in HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [74], at p. 202:

‘If you study the matter, you will see that the National Insurance Institute (for example) will not pay a person in need a few hundred sheqels without that person satisfying detailed and precise tests that the law provides. Moreover, an examination is made for each individual payment, there are reviews, and every decision and every payment are subject to the scrutiny of the various courts in accordance with rules that have been determined in advance and in detail. All of this is the case with regard to subsistence payments. But when it comes to granting huge amounts, the tests are only general and vague tests: the government policy is what will decide the matter — a policy that was not formulated in the furnace of a substantive, specific and detailed statute — and for which there was no proper scrutiny, ab initio, of the legislature and the people.’

In the same vein, we said in HCJ 8569/96 Federation of Working and Studying Youth v. Minister of Education [75], at p. 620:

‘A person must take infinite pains and produce a significant number of documents, certificates and approvals to the authorities before he will be entitled to a state loan for housing. A person must make considerable efforts, he must run here and there to prove his personal status before he becomes entitled to a reduction for a payment that everyone has to make. He must do all this merely for subsistence. But when it comes to granting huge sums, civil servants are so easygoing. Can we reconcile ourselves to this serious phenomenon that has today been revealed to us?’

The same occurred recently, in Shimoni v. Prime Minister [39], where we discussed the congenital defect inherent in granting money by virtue of the government’s residual power, without any provision of statute providing primary arrangements for the distribution of that money (ibid. [39], at para. 2 of my opinion):

‘A disturbing question is whether the government is competent to give grants, benefits and support where the power to do all this is based only on the budget law and the residual power of the government in accordance with s. 32 of the Basic Law: the Government, 5761-2001. How can the government acquire such wide-ranging power to grant rivers of money, as a matter of policy, without the Knesset, the legislature, examining, checking, scrutinizing and approving the allocation of that money in a specific, explicit and detailed statute? Indeed, it is a disturbing question. We all know that payments that the government and public authorities make to an individual in accordance with statute are given only when exacting and extremely detailed requirements are satisfied by the individual, yet here grants, support and benefits worth millions are paid out in accordance with a decision that was not scrutinized by the Knesset on its merits. We have also discussed this in the past.’

Also see and cf.: Bachar v. Minister of Defence [44], at p. 809; Gross v. Ministry of Education and Culture [46], at p. 57; Z. Falk, ‘The State Budget and Administrative Authority,’ 19 HaPraklit 32 (1963).

42. It is true that in the past we have on more than one occasion encountered cases in which the government gave budgetary grants or benefits to various parties even without authorization in statute, and the court not only did not prevent those transfers of money but even went on to determine ‘rules and principles for guiding the state when distributing grants, and in addition to these, principles for its intervention where there was a departure from those rules and principles’ (C.A.L. Freight Airlines Ltd v. Prime Minister [74], at p. 202). Thus, for example, we held that an act of allocating money was subject to the principles of administrative law, in which the duty to act with good faith, fairness and integrity, in a proper and just manner, according to relevant considerations, equally and without discrimination. See, for example, Association of Insurance Appraisers in Israel v. State of Israel [41]; HCJ 363/71 Dagan Flour Mill Ltd v. Minister of Trade and Industry [76], at p. 298; HCJ 198/82 Munitz v. Bank of Israel [77], at p. 470; HCJ 366/81 Association of Tour Bus Operators v. Minister of Finance [78], at p. 118; HCJ 49/83 United Dairies Ltd v. Milk Board [79], at p. 524; C.A.L. Freight Airlines Ltd v. Prime Minister [74], at pp. 203-204; etc.. My colleague President Barak based his opinion in this case on these principles, and I agree entirely with his remarks. All of these rules, principles and doctrines revolve around the way in which the government acts within the scope of its authority, the way in which it implements a matter which everyone agrees the government is competent to consider and to do. But our case here does not concern methods of implementation; it concerns the question whether the government is competent, in principle, to do what it did in its decisions.

To remove doubt and to prevent misunderstandings, we should add that these spheres are not unrelated to one another. They are nourished by one another and affect each other. In other words, the question of authority is not completely separate from the question of discretion. Thus, for example, giving grants by virtue of the residual power to specific projects or certain sectors of the population may harm, and de facto does harm, the expectations of other project promoters or sectors of the population that do not receive grants. The state budget is limited, and it is the way of the world that resources do not cover needs. A good imagination is unnecessary in order to know and understand that giving grants to one sector — preferring that sector to other sectors — is tantamount to harming other sectors. See and cf. Rubinstein and Medina, The Constitutional Law of the State of Israel (fifth edition, 1996), at pp. 785 et seq.; C.A.L. Freight Airlines Ltd v. Prime Minister [74], at p. 216; HCJ 1030/99 Oron v. Knesset Speaker [80], at p. 658; HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [81], at p. 471; HCJ 28/94 Zarfati v. Minister of Health [82], at p. 817. Thus, all grants of money are intended for implementing a policy that seems right to the party giving the grant; all grants of money mean, expressly or by implication, a preference of one person or project over another person or project, and it may involve, intentionally or unintentionally, an unlawful preference, which is discrimination. And if we are speaking of a large injection of money, the question of preference — even if it is a preference without any impropriety — will enter into the question of authority by osmosis. In the language of numbers we can say this: giving 100 sheqels is the prerogative of the administration; giving one hundred million sheqels is the prerogative of the legislature.

43. Our case therefore is an attempt — and it is not an easy matter — to draw the line and distinguish between those matters that fall within the purview of the administration and are subject to the accepted rules of administrative law, and matters that are in the realm of the legislature because they are primary arrangements. As a premise we can say that a distribution of money by the government — in accordance with the budget law, of course — without the Knesset having considered that distribution expressly and specifically can only mean that the government, rather than the Knesset, has determined a primary arrangement for such distribution. Since we know that the government does not have the power to determine primary arrangements unless it has been authorized to do so by statute, we will know that such a distribution of money is not within its power even if it is intended for a proper purpose. This, however, is not the position in every case, and each case will require consideration on its own. But we can say that —

‘If the budget law gives the government authority to expend a certain number of billions of sheqels, without there being a specific and detailed law that stipulates specific conditions, qualifications and policies — i.e., without the Knesset enacting a law that determines primary arrangements — the act is tantamount to a delegation of legislative power from the Knesset to the government. This cannot be allowed in a democracy that is built on the principle of the decentralization of power’ (Shimoni v. Prime Minister [39], at para. 3 of my opinion).

Turning from general principles to the specific case — introduction

44. After all of this theoretical discussion, let us take a look at our case, at those government decisions that established national priority areas in Israel, namely government decision no. 3292 and government decision no. 2288. First, let us consider the government decisions themselves, and of these the more important and material one for our case is decision no. 2288.

45. A study of the documents will show us that the decision to establish a certain area as a national priority area is a decision of great significance, since it gives rise to many different benefits, in many different areas of life, to the residents and towns inside those areas. Thus, inter alia, the residents of a national priority area are entitled to benefits in housing and rent, including aid and reductions in buying real estate and plots of land; the education system in the area is entitled to benefits and incentives, including reductions in the payment of tuition fees in kindergartens, a subsidy of school buses, special budgets for schools, giving special incentives to teachers who teach in them, and even giving scholarships to students who live and study in the area; the residents are entitled to benefits in the field of welfare, including incentives and grants to persons of certain professions who choose to move their homes to the area; business owners who choose to operate in the area, and similarly the residents of the area are entitled to tax concessions (concessions that grant them, of course, an advantage over other businesses that do not receive those concessions); the business owners and residents in the area are also entitled to benefits in the field of employment and to preferential treatment for government purchasing; local authorities are entitled to development budgets and aid from the government; and there are many other benefits. Let us cite some of the remarks that were made at the beginning of government decision no. 2228 of 14 July 2002, which speak for themselves:

‘2228. National Priority Areas

It was decided (18 votes in favour):

To determine the national priority areas and towns in the Negev, Galilee, Jerusalem, Judaea, Samaria and Gaza. In these areas a variety of benefits and incentives will be given in order to further their advancement, reduce the gaps in the standard of development and standard of living between the national priority towns and all the other towns in Israel, encourage the next generation to settle in the national priority towns, encourage the settlement of new immigrants and of longstanding citizens in the national priority towns, while implementing the government policy with regard to the planned distribution of the population throughout the territory of the state.

The aid and incentives to encourage investment of capital in industry are intended to promote development of a production capacity and the improvement of human capital in national priority areas by means of private initiative, to act as an instrument for creating stable and flourishing places of employment, while reducing the environmental damage and making effective use of national infrastructures. In addition, where possible, the aid is intended to strengthen the cooperation between local authorities by means of common management of industrial areas in national priority areas.

The aid and incentives to encourage capital investments in agriculture are intended to promote development of agricultural exports, development of products that are major import replacements, effective use of natural conditions, economic capability, technical knowledge and professional experience that are involved in the agricultural sector, all of which while promoting the agricultural sector as a pioneer and a contributor to security and social welfare.

The aid and incentives to encourage capital investments in tourism are intended to develop tourism as a major sector of the state economy, which contributes towards improving the balance of payments and creates places of employment in peripheral areas.

The aid in the field of education is intended to improve the standard of achievement of students in the national priority areas with the aim of reducing gaps and creating a qualitative and equal education system, in view of the fact that the level of education constitutes a leading variable in creating a socio-economic spectrum of opportunities.

The incentives and benefits in the field of housing are intended to strengthen the socio-economic basis of the national priority towns, to help the second generation, new immigrants and long-standing citizens to buy an apartment and make their homes in national priority towns and to promote the policy of the government with regard to a planned distribution of the population throughout the country.’

If we look at the government decision to establish national priority areas and the benefits that the residents and towns in those areas are supposed to receive, even someone who is not blessed with a fertile imagination will know that we are dealing with a decision that is very far-reaching. It is a decision whose importance can hardly be exaggerated. Its ramifications are substantial and its influence extends far and wide.

46. In addition to the government decision, let us look at the statute book and we will see that there is no express substantive law that provides a power to make such decisions. The question is therefore whether the government was competent to make the decisions that it did by virtue of its residual power in s. 32 of the Basic Law: the Government, 5761-2001? We will recall that the aforesaid s. 32 tells us:

‘Residual powers of the government

32. The government is competent to do on behalf of the state, subject to any law, any act whose performance is not delegated by law to another authority.’

In order to examine this question, let us follow the path that we have outlined in our opinion. Let us first examine the ‘internal restrictions’ upon the creation of residual power — these are the restrictions provided in the actual provisions of s. 32 — and thereafter let us turn to consider those ‘external restrictions’ whereby basic principles and doctrines in the legal system prevent the creation of residual power.

Turning from general principles to the specific case — ‘the internal restrictions’

47. According to the provisions of s. 32 of the Basic Law: the Government, 5761-2001, the government has (residual) power to do on behalf of the state any act — and ‘act’ is agreed by everyone to include making various kinds of normative arrangements — subject to the following two restrictions: first, it is ‘subject to any law,’ and second, doing the act ‘is not delegated by law to another authority.’ We called these restrictions ‘internal restrictions.’ The meaning of this is, as we have seen, that where there is a ‘law’ that regulates a certain activity or a certain sphere of life, then that activity or sphere of life, prima facie, falls outside the scope of the residual power acquired by the government. This is also the case with regard to a negative arrangement that surrounds that law. In our case, there is a relevant statute, which is the Development Towns and Areas Law, 5748-1988, and the question that arises is whether the activity that the government decisions address — the establishment of national priority areas and giving various benefits to residents and towns in those areas — is identical or similar to actions under the Development Towns and Areas Law. For if the activity in both cases is the same or similar, then it can be said that there is a ‘law’ that regulates the matter, and it follows from this that the government does not have (residual) power to do that activity because of the restriction of ‘subject to any law’ (and because of the additional restriction that there is another authority that has jurisdiction). In order to examine this, we should examine the arrangements that the government determined in its decisions and the arrangements that were provided in the Development Towns and Areas Law, and then we should compare the two and reach a conclusion as to whether the arrangements determined by the government are indeed inconsistent with the arrangements provided in the Development Towns and Areas Law.

48. We have reviewed the government decisions in our remarks above, and now let us turn to examine the Development Towns and Areas Law. The Development Towns and Areas Law was enacted by the Knesset in 1988 and it contains twenty-four sections. The purpose of the law, as stated in s. 1, is ‘to encourage the settlement, development and socio-economic promotion of development towns and areas and their inhabitants,’ and the essence of the law is to provide detailed arrangements for giving benefits to development towns. A ‘development town,’ according to the definition in s. 3 of the law, is an area that a ministerial committee, which is made up of twelve members (s. 4(a) of the law), has declared to be a development town, because of the distance between it and population centres in the centre of the country, the aim of encouraging a spread of the population and the purpose of promoting its economic and social strength, its quality of services and the state of security in the area. The law itself gives details of benefits that will be given to development towns in several walks of life and in accordance with criteria that are provided therein, including grants to local authorities (s. 5); reductions in municipal property tax for residents (s. 6); priority for investment plans (s. 7); tax concessions (s. 8); housing grants and benefits (ss. 9 and 10); grants for new immigrant families (s. 12); benefits in education in kindergartens, infant day care, primary and secondary schools, higher education, technological education and informal education (ss. 13-18), etc..

49. There is no need for major research in order to understand and realize that the arrangements provided in the Development Towns and Areas Law, on the one hand, and the arrangements determined by the government in its decision to establish national priority areas, on the other, are very similar indeed — so similar, in fact, that they are almost identical. In examining both theory and practice, both arrangements are alternatives to one another, since they seek to cover the same walk of life, namely special areas in Israel. The government decision calls these special areas national priority areas, whereas in the Development Towns and Areas Law they are called ‘development towns and areas.’ But the difference in the names should not deceive us. The description is different but the essence is the same.

50. Were the Development Towns and Areas Law a living and breathing law and were the law implemented, even in part, then the government would not be competent — by virtue of its residual power — to make the decisions that it made to establish national priority areas. In other words, since the arrangements in the law and the arrangements in the national priority areas seek to cover exactly the same ground, then in view of the arrangements in the law, the government would not have any residual power in this sphere of life. But the Development Towns and Areas Law has been, since the day it came into the world, a theory that has never been put into practice. Notwithstanding the fact that the law is on the statute book as a valid law, the government has not taken the trouble to implement it, and by paving a route that bypasses the law — supposedly by means of its power in s. 29 of the Basic Law: the Government, 5728-1968, which is s. 32 of the current Basic Law — it has seen fit to ignore the law’s existence utterly. The bypass route lay in decisions of the government or ministerial committees to grant various benefits to towns that they classified as development towns under those decisions, so that hundreds of towns received various benefits by virtue of decisions that were made from time to time. After it transpired that confusion reigned in this area of benefits, and this led to inequality and to a waste of state resources, the government decided, once again purportedly by virtue of its residual power, to correct the situation that had been created, and it established national priority areas — national priority area A and national priority area B — where the residents and the towns were supposed to be entitled to benefits that would be given by various government ministries. These national priority areas are the national priority areas before us; they were established in place of the arrangement that was determined by the Knesset in the Development Towns and Areas Law.

51. Against this background, the Kiryat-Gat Municipality filed a petition in which it argued that once the Development Towns and Areas Law was enacted, the government no longer had ‘residual’ power to determine an alternative arrangement to the arrangement provided in the law. The court granted the petition, and this gave rise to the case law rule in Kiryat Gat Municipality v. State of Israel [33], a ruling that we have discussed extensively in our remarks above. This is what the court held in that case, per Justice Goldberg (ibid. [33], at p. 844):

‘A comparison of the law with the government decision reveals that both of them deal with the very same material: the distribution of population, the advancement and development of towns that will be classified as development towns and areas, by giving benefits and incentives. The government decision was merely intended to create a “parallel track” to achieve the same goal in with a different conception and criteria to those provided in the law. A proof of the “friction” between the two can be seen in the statement in the government decision that “these decisions shall not be regarded as decisions for the purpose of the Development Towns and Areas Law, 5748-1988”; in the statement that the inter-ministerial committee would also deal with “making the adjustments to the required legislation and subordinate legislation”; in the government decision of 31 August 1993 to postpone the commencement of the law by three years; and in the content of the draft law that was tabled as a result, which seeks to postpone the commencement of the law and to give the proposed amendment retroactive effect “on the date of the commencement of the main law.”

The aforesaid duality of the law and the government decision cannot be consistent with the language of s. 29 [of the Basic Law: the Government, 5728-1968, now s. 32 of the Basic Law: the Government, 5761-2001] and its legislative purpose. Extending the power of the government in a way that will allow such a situation blurs the boundaries between the executive branch and the legislative branch and undermines the very essence of the constitutional system in Israel, which is based on the separation of powers between the branches. The qualification in s. 29 that the government is competent to act “subject to any law” does not say only that it is prohibited for government acts to conflict with any law or to breach any law, but also that when there is a law that creates an arrangement, the power of the government yields to it, and it cannot create an alternative arrangement. If there was a legal void, then it existed until the law that created the arrangement was enacted. From that time onward, the void in the law was filled, and the government was not left with any more residual power in that particular matter... The possibility that the government is free to act on a “parallel track” to the legislation that regulated the matter certainly is inconsistent with the proper legal policy to reduce, in so far as possible, the scope of s. 29 as an independent source of authority.

What is more, the government decision also is inconsistent with the qualification of ‘subject to any law’ in s. 29, in the sense that the power to classify development towns and development areas was granted in law to the ministerial committee that was established by the law. Once this power has been granted by law to one authority, the government does not have power to do this.’

The court said in summary (ibid. [33]):

‘... The government decision cannot exist together with the law, as long as it is not repealed or amended, and therefore we should make an absolute order, as requested... that the respondents should refrain from carrying out and implementing the government decision...’.

52. The case law ruling in Kiryat Gat Municipality v. State of Israel [33] was determined when the Development Towns and Areas Law was in force and when the government tried to bypass it, rather than to implement it, by creating a bypass route of establishing national priority areas. The court found that the act of the government was contrary to the act of the Knesset and the principle of the separation of powers and the decentralization of power, and therefore it set aside the government decision (even though it held, by a majority, that the decision to set it aside would be suspended for four months from the date of the judgment). This time the government acted promptly. Thus, after the petition was filed and a month before the judgment was given, the state asked the Knesset to decide — in view of difficulties that had arisen in implementation and in view of the burden that implementation would impose on the state budget — to postpone the commencement of the law by three years. As the explanatory notes to s. 19 of the draft State Economy Arrangements (Legislative Amendments for Achieving Budgetary Goals) Law, 5754-1993 (Draft Laws, 5754, 16, at p. 28), state:

‘The Development Towns and Areas Law was enacted in 1988. The law authorizes a ministerial committee for development towns to classify the development towns and to give them a series of benefits in various matters. A condition for giving the benefits, for all the towns apart from border towns, is that they are removed from the list of towns entitled to Income Tax concessions.

According to estimates of the Budgets Department, the cost of implementing the law after cancelling the Income Tax concessions is approximately NIS 150 million.

The law has not been implemented until the present, both because of the fact that the mayors of the towns have not agreed to waive the tax concessions in return for receipt of the benefits thereunder, and also because of the budget cost involved in implementing it.

Recently the government adopted the recommendations of a committee of heads of departments to draw up a map reclassifying development towns and areas, and it decided to establish an inter-ministerial committee for implementing the recommendations, which will examine the legal, economic and public ramifications of the matter.

It is proposed that the commencement of the Development Towns and Areas Law should be postponed by three years in order to allow the committee that was established to examine the legal and economic aspects and to adapt the legal position to the decisions and policy that have been determined with regard to national priority areas.’

53. The Knesset acceded to the government’s request and the commencement of the law was postponed until 1996. The time passed, 1996 approached, and we see that the government once again asked the Knesset to postpone the commencement of the Development Towns and Areas Law by a further period until 1999. The request was explained on budgetary grounds: the cost of implementing the law. As the explanatory notes to s. 10 of the draft State Economy Arrangements (Legislative Amendments for Achieving Budgetary Goals) Law, 5756-1995 (Draft Laws, 5756, 136, at p. 141) stated:

‘The cost of implementing the law is an amount of approximately NIS 500 million per annum, and therefore it is proposed to postpone its implementation by three more years.’

54. The Knesset once again acceded to the government’s request, and it postponed the commencement of the law until the 1999 budget year. But even in 1999 the law did not come into effect, and shortly before it was supposed to come into force the government once again asked the Knesset to postpone its commencement by an additional five years, until the year 2004. This time no reasons were given. The Knesset acceded to the government’s request and postponed the date of the law’s commencement. See s. 5 of the draft State Economy Arrangements (Legislative Amendments for Achieving Budgetary Goals) Law, 5759-1999 (Draft Laws, 5759, 6, at p. 8) and s. 4(2) of the State Economy Arrangements (Legislative Amendments for Achieving Budgetary Goals) Law, 5759-1999, that was enacted and published in Statutes, 5759, 90.

55. When five years had passed, during which time the government adopted decision no. 2288 to establish national priority areas, which is the decision being challenged in the petition before us, the government decided to rid itself, once and for all, of the Development Towns and Areas Law. It therefore asked the Knesset to repeal the law in its entirety and to allow the government to distribute state resources as it saw fit. According to the explanatory notes to s. 115 of the draft Economic Policy for the 2004 Fiscal Year (Legislation Amendments) Law, 5764-2003 (Government Draft Laws, 5764, 52, at p. 163):

‘According to the Development Towns and Areas Law, 5748-1988, development towns and areas should be allocated a series of benefits that are reflected in increased grants to the local authorities and grants and various tax concessions to the residents, including increased education and welfare services, fully funded by the state, where the value of these benefits may amount to hundreds of millions of new sheqels. The commencement of the law has been postponed several times and has been fixed for the 2004 fiscal year.

The government is already acting today to give priority to certain areas and sectors, both in accordance with the national priority areas and in accordance with decisions concerning various multi-year plans (border area, specific treatment, Arab sector, etc.) and is allocating various benefits for these areas, which are reflected both in grants to the local authorities and in giving priority in education, welfare, taxation and land allocations. All of this will be subject to budgetary constraints and priorities as determined each budget year. Therefore it is proposed that the aforesaid law should be repealed...’

But this time the Knesset did not accede to the government’s request, and instead of repealing the Development Towns and Areas Law, it decided in a law to postpone its commencement by three years, until 2007. That is how the law stands at the present.

56. The position is therefore as follows: in 1988 the Knesset enacted the Development Towns and Areas Law, and it provided in it an express and detailed arrangement for distributing various grants and benefits to the areas of the country that need social and economic development and advancement. This arrangement has never been repealed, but its commencement has been postponed time and again, mainly for budgetary reasons. At the same time, in addition to the law, the government created a route that bypasses the law — or perhaps we should say a route that bypasses a postponed law — and it began to give ‘national priority areas’ the very same benefits, or some of the same benefits, that the law sought to give, this time by virtue of its residual power. The government even turned to the Knesset and asked it to repeal the law entirely and give it the exclusive power to grant money, but the Knesset refused to accede to this request. Against this whole background, the following is the problem that we are charged with solving: when the Knesset decided to enact a law that provides arrangements for giving pecuniary grants when various conditions are fulfilled, and when it went on to say that the commencement of the law would take place after a certain number of years, is the government competent, by virtue of its residual power, to give pecuniary grants that are addressed by the law during the interim period until the law comes into effect? Should we say that postponing the commencement of the Development Towns and Areas Law created a ‘void,’ and that the government was therefore entitled, in accordance with its residual power, to grant all or some of the pecuniary grants, at least in accordance with the law? Or, in the words of the respondents in their reply, should we say that the events that have taken place have taught us that —

‘Once again an administrative void has been created with regard to the implementation of a socio-economic policy; [and] since this is the case, it should not be ruled out that this void may be filled by the government’s use of its residual power’?

Has the government therefore made use of its (residual) power, or should we express the matter differently by saying that the actual arrangement provided in the Development Towns and Areas Law, or the very fact that the Knesset saw fit to address this matter of giving pecuniary grants to certain areas and towns in Israel — whether those areas and towns are called development towns or whether they are called national priority areas — shows that the Knesset wanted the arrangement that it determined to apply, in the manner that it determined, and in this way it deprived the government of its residual power?

57. Let us be frank and say that this question is not an easy one. We have considered it at length and we have not reached a clear decision. On the one hand, it may be argued that the enactment of the Development Towns and Areas Law together with the sequence of events since it was enacted in 1988 until the present — a period of seventeen years — indicates that a kind of negative arrangement has been created around the law, a negative arrangement that prevents the government from having residual power to give pecuniary grants that it wishes to give to the national priority areas. We should remember, in this context, that the Knesset expressly rejected the government’s request to repeal the Development Towns and Areas Law utterly, something that would, according to the government (and we will say more on this below), free its residual power from the restraints that surrounded it and allow it to give pecuniary grants in accordance with a policy that it would determine from time to time without being bound by a statute of the Knesset. Logic dictates that the meaning of this is that the Knesset refused to allow the government’s residual power to awaken from its slumber so that it might give pecuniary grants to certain areas of the country in accordance with its policy from time to time. In refusing to accede to the government’s request, it is as if the Knesset expressed its opinion that the law should indeed continue to exist, and not merely parts or a portion of it. And by postponing the commencement of the law, it is as if the Knesset expressed its opinion that, for the time being, the law should not be implemented in its entirety or in part. Admittedly, had the government asked the Knesset to limit the scope of the law, by adapting it to its policy that it applied in the national priority areas, the Knesset might have acceded to this request and it might have refused. But it should have adopted this course rather than bypassing the law by postponing the commencement of the law and determining another arrangement in its place.

On the other hand, we cannot say without reservation that the Knesset consciously and deliberately sought to prevent the government from giving grants and benefits to national priority areas; on the contrary, the Knesset knew all along the way that, notwithstanding the fact that the commencement of the law had been postponed, the government was continuing to give grants to national priority areas. Against this background, it might be argued that the Knesset did not seek at all to create a negative arrangement around the law; all that the Knesset intended was to shirk the responsibility of distributing benefits, or, to be more precise, of determining primary arrangements for distributing benefits, and at the same time to place the implementation of this task at the government’s door. The Knesset therefore wanted — according to this argument — to entrust the determination of the primary arrangements for distribution solely to the government, under the general supervision of the Knesset.

58. Both of these approaches are reasonable, and we cannot rule out either of them. But when both of them are placed before us side by side, we realize that we are not required to decide between them at all, nor to go on to determine whether the internal restrictions on the residual power of the government are satisfied in our case or not. The reason for this is that when it enacted a clear and express law concerning the distribution of benefits, the Knesset itself stated its express opinion that the arrangements for distributing benefits of the kind under discussion is a primary arrangement and that it should be made in a statute of the Knesset rather than in subordinate legislation or in a government decision. It follows from this that there are external restrictions on the residual power of the government. We shall consider this issue further in our remarks below, and as we shall see there are additional reasons — substantial reasons — for reaching the conclusion that by virtue of the external restrictions on its residual power, the government was prohibited from deciding upon national priority areas in the manner that it did.

Turning from general principles to the specific case — ‘external restrictions’ — the power to determine primary arrangements; the violation of the basic rights of the individual

59. We have discussed the internal restrictions in s. 32 of the Basic Law: the Government, 5761-2001, and we have expressed our opinion that the government decisions that established the national priority areas are decisions that were made ultra vires. The reason for this is that they were not made in accordance with an authorization in a substantive law, and since they are not consistent with the restriction of ‘subject to any law’ they also do not fall within the scope of the government’s residual power. There is a law, namely the Development Towns and Areas Law; the arrangement determined in the government decisions is a ‘parallel arrangement’ to the arrangement in the Development Towns and Areas Law; therefore the government never acquired residual power to make the decisions that it made. But this is not all. Our opinion is that the government decisions concerning the national priority areas also do not satisfy the external restrictions that surround the provisions of s. 32 of the Basic Law — those restrictions that tell us that in the absence of an express and detailed substantive law, the government does not have residual power to make primary arrangements.

60. Anyone who looks at the government decisions will easily reach the conclusion that the act of establishing national priority areas is tantamount to declaring a major policy, an all-embracing policy that gives significant and meaningful preference in many different walks of life to large areas of the country. It need not be said that a decision to benefit, to a significant degree, towns and residents in certain parts of the country has necessarily a significant effect also on the residents of the other parts of the country. This effect is recognizable in each of the benefits that the decision is supposed to provide: housing, agriculture, tax payments, education and other benefits. Moreover, benefits that will be given to the residents of the national priority areas will necessarily have an effect on the state budget, i.e., on the other inhabitants of the state. Let us therefore read the government decision and say the following: if this decision is not a primary arrangement, or to go further, if it is not a prime example of a primary arrangement, then we do not know what would be a primary arrangement. After making a decision of this kind, what remains for the Knesset to do? We can therefore say that because of its broad application and the large number of benefits that it provides, the decision to establish national priority areas appears to be a primary arrangement; its content is the content of a primary arrangement; it sounds like a primary arrangement; and it operates like a primary arrangement. From all of this we know that the decision concerns a primary arrangement.

61. And if anyone still has any doubt that the government’s decision is a primary arrangement — and in our mind there is no doubt at all — let the Development Towns and Areas Law itself come and testify that the decision concerns a primary arrangement. We see that the Knesset itself was of the opinion — and rightly so — that giving benefits in many different walks of life to the residents of specific areas in Israel requires a primary arrangement in a statute of the Knesset, and for this very reason it enacted the Development Towns and Areas Law. Thus, the very enactment of the law shows that it is a primary arrangement. The law, as such, is a manifestation of the outlook of the Knesset — the supreme body in the state — that it took the trouble to enact a law because the matter, in its opinion, concerns an arrangement of prime importance. Now that we know that the government decision is similar in content, very similar, to the content of the Development Towns and Areas Law, it is a simple and logical deduction that the government decision contains a primary arrangement and that it is a primary arrangement par excellence. The conclusion that follows from this, of course, is that the government had no authority at all, within the framework of its residual power, to make the decisions that it made in order to establish national priority areas.

62. Significant support for the approach that the government’s decision is a decision that requires a primary arrangement in a statute of the Knesset will be found in the variety of statutes that concern the establishment of national priority areas — whether in name or in essence — to promote certain activities that are addressed in those statutes. A study of those statutes will reveal to us that where the Knesset saw fit to do so, it enacted detailed statutes that order the distribution of benefits and grants in various spheres and to particular sectors, and it even went on to determine (primary) arrangements with regard to the content and scope of the benefits and grants, as well as criteria for distributing them. One such statute, for example, is the Encouragement of Capital Investments Law, 5719-1959, which orders an investment grant to be given to enterprises that are set up in areas ‘that will be determined by the ministers, with the approval of the Finance Committee of the Knesset’ (s. 40D). The Free Manufacturing Areas in Israel Law, 5754-1994, authorizes the government to determine an area in Israel to be a ‘free area’ (s. 19); it determines ways and restrictions for locating an area to be declared a free area (s. 18), and it determines the scope of the benefits that will be granted to an area that is declared to be a free area. The Compulsory Tenders Law, 5752-1992, provides that preference should be given to products that are manufactured in ‘national priority areas,’ which are defined in the law as ‘the areas determined in accordance with section 40D of the Encouragement of Capital Investments Law, 5719-1959… or other areas determined by the government, from time to time, for the purpose of this law, and of which a notice has been published in Reshumot’ (s. 3A(a)(3)). The Compulsory Tenders Law and regulations enacted thereunder also determine specific areas that will be considered national priority areas for certain matters. The Council of Higher Education Law, 5718-1958, allows preference ‘of students who are permanent residents of national priority areas determined by the government and of students in institutes of higher education or academic colleges that are situated in those areas’ (s. 25B). The Encouragement of Research and Development in Industry Law, 5744-1984, concerns, as its name indicates, the granting of large-scale benefits for research and development in industry, and detailed arrangements are provided in the law for the distribution of those benefits. The law goes on to provide that ‘The Ministers, with the approval of the Finance Committee of the Knesset, may determine rules concerning an addition to the rates determined by the Research Committee, in national priority areas,’ which are ‘the areas determined under section 40D of the Encouragement of Capital Investments Law… or other areas determined by the government, from time to time, for the purpose of the benefits under the aforesaid law’ (s. 28(c)).

Thus we see that the Knesset has shown, in an express and unequivocal manner, that arrangements such as the arrangement provided in the government decision to establish national priority areas are primary arrangements that should be made in a statute of the Knesset, rather than merely in a government decision. The Knesset is accustomed, as a matter of course, to enact detailed laws and to determine arrangements — which are primary arrangements in character — for the distribution of benefits like the benefits that the government decision seeks to grant. We can deduce from this that legislation of the Knesset with due process is the direct method for giving benefits and grants to certain sectors in society, and therefore — for our purposes — for determining national priority areas (see and cf., by analogy, the manner in which a doctrine is created in Israeli law: Israel Women’s Network v. Minister of Labour and Social Affairs [7], at pp. 658, 662-663; Niv v. National Labour Court [56], at pp. 687-688). In our case, the government did not adopt this direct method; it chose a roundabout one, a short cut, by determining primary arrangements itself, as if it were a legislator, but without a substantive statute of the Knesset that authorizes it to do so, and at the same time it appointed itself, in its usual capacity, to execute those arrangements. The conclusion that follows from all this is that by making itself, by virtue of the residual power, a legislator of primary arrangements, the government departed from the scope of its power as the executive branch, and its decision concerning the national priority areas was a defective one ab initio.

63. Our conclusion from the aforesaid is simply that the government was prohibited from ordering the establishment of national priority areas. This decision amounts to a primary arrangement and as such it is within the jurisdiction of the Knesset alone. In other words, in our opinion there are external restrictions upon the residual power of the government in our case, and we have discussed this in length above.

64. Moreover, as we explained in our remarks above, one of the external restrictions imposed on the residual power of the government according to s. 32 of the Basic Law: the Government, 5761-2001, is the restriction whereby it may not violate the basic rights of the individual. My colleague the president showed extensively in his opinion that the decision made by the government in our case is a discriminatory decision, and what is more, a decision that violates the basic rights of the individual. We can deduce from this that the government was not permitted or authorized to make the decision that it made, if only for the reason that this decision violates the basic rights of the individual. It follows that even if we said that the government was entitled, in principle, to decide to establish national priority areas as it did — and we do not think this — in any case, since this decision is a decision that violates the basic rights of the individual, the government was not competent to decide it by virtue of its residual power. For this reason also, therefore, we are of the opinion that in making the decision that it did, the government acted outside the scope of its residual power.

Before concluding

65. The petitioners’ petition focuses mainly on the field of education and the effect of the government’s decision to declare a certain area — to the exclusion of others — as a national priority area, which amounts to discrimination against students who were not fortunate enough to be included within the scope of that declaration. But this cannot affect our determination that the government’s decision was a defective decision from the outset, and that it ought to be set aside. The wide-ranging effects of the decision to determine national priority areas in the field of education alone is sufficient, as my colleague the president discussed in his opinion, for us to order the government to ask the Knesset to determine in statute arrangements for granting benefits that are the same or similar to the ones decided upon by the government.

Summary and conclusions

66. My opinion is that the government decisions to establish national priority areas like the decision of the government in this case are decisions whose nature and character are such that they require a primary arrangement that must find its home in a law of the Knesset. It follows from this that the government, as the executive branch, did not acquire residual power under s. 32 of the Basic Law: the Government, 5761-2001, to make the decisions that it made. No one will deny that the government’s intention was a proper and desirable one, but we are now discussing an institutional matter, which is the demarcation of the boundaries between the Knesset and the government, and good intentions are not sufficient to acquire power. The government was not permitted, according to the system of government in Israel and as required by the principle of the rule of law, to determine such a wide-ranging and pervasive benefits policy as the one that it determined, and the conclusion that follows from this is that the government acted ultra vires.

66. I therefore agree with the conclusion of my colleague the president that the order nisi should be made absolute. I also agree that the effect of our decision should be suspended, this too in accordance with the president’s decision.

 

 

Justice E.E. Levy

I agree with the opinions of the president and the vice-president.

 

 

Justice D. Beinisch

I have read the opinions of President Barak and Vice-President M. Cheshin and I agree with them.

The two opinions of my colleagues touch some very sensitive nerves in Israeli society; the two fundamental issues that are raised in them — discrimination in education in the Arab sector and the duty to determine primary arrangements by means of Knesset legislation — have been addressed by this court on more than one occasion.

I have nothing to add to the remarks of the president with regard to the seriousness of the violation of the right to education; I would only emphasize that the question of discrimination in so far as the right to education in the Arab sector is concerned has arisen once again before us, even though it has already been considered in a series of judgments as set out in the president’s opinion. For its part, the state confirms before us that it recognizes the fact that the Arab sector has been discriminated against in the field of education for many years, and in the petition before us it argues, as it has in previous petitions, that in recent years attention has been directed towards that discrimination, and it is alleged that the problem has been resolved by means of operative steps taken to remedy the situation and to improve it by allocating special budgets. Admittedly, according to the figures that were presented to us in the response to the present petition, as they were on previous occasions, a significant improvement has apparently taken place, as reflected in the allocation of special budgets to the Arab sector in general (after the Or Commission report), and education in particular (following the Shoshani report). But the change is unsatisfactory and it does not provide a solution to the discriminatory result that can be seen from the classification of towns in the national priority areas that was done without including the Arab population at all within the framework of this priority, which involves budgetary benefits.

In such circumstances, it is not possible to approve the basis for the distribution to priority towns, since the discrimination it creates prejudices equality without any objective justification or any basis in statute, and in any case, equality is violated since the condition of proportionality is not satisfied.

Just as this court has expressed its criticism on more than one occasion with regard to the status of the right to education and the seriousness of the discrimination suffered by those attempting to realize that right, so too it has criticized the failure to determine primary arrangements. The practice that has developed whereby the government as the executive branch — and these remarks are directed against successive Israeli governments — makes use of the provisions of s. 32 of the Basic Law: the Government (and the earlier versions of this section of legislation) has found expression in several areas. This was discussed extensively by the vice-president. The tendency to implement policy effectively by appropriating broad powers to determine wide-ranging fundamental arrangements with budgetary ramifications that affect the whole public is the temptation that lies in wait for every government. Even though we agree that the power given to the government in the aforesaid s. 32, with its objective and limited scope, is essential for the government’s work, and even though there is no primary legislation that can encompass the whole scope and limits of the government’s work, there is a great concern that the power will be abused. In any case, the government certainly may not make use of the residual power given to it to violate human rights. I do not need to say anything about the importance of the principle of the rule of law that is enshrined in the foundations of our democratic system of government. It is to be hoped that the considerations mentioned by the vice-president in his opinion and the principles that he discussed with regard to the distinction between government activity that constitutes a primary arrangement, which as such is invalid, and activity that lawfully falls within the sphere of executive action and the government’s powers will assist in upholding the principles of the rule of law that are required by the structure of our system of government, and also guide the government with regard to the limits of its powers.

In the case before us, as stated in the opinions of my colleagues, not only is Knesset legislation necessary because of the character of the primary arrangement, but the legislature will also have to take into account the fact that the necessary legislation requires a comprehensive arrangement that includes provisions that do not violate human rights disproportionately, and this needs serious and thorough work. For this reason, and in view of the need not to harm suddenly and disproportionately the towns that are benefitting today from the budgets that they need, I also agree with the relief of suspending the voidance of the government decision.

 

 

Justice E. Rivlin

I agree with the comprehensive and exhaustive opinions of my colleagues, President A. Barak and Vice-President M. Cheshin. Like them, I am of the opinion that there were two defects in the government’s decision concerning national priority areas in the field of education. First, it is not within the government’s power to determine an arrangement that by its very nature is a primary arrangement, and second — and this is no less important — the decision is tainted by prohibited discrimination and unlawfully violates the right to equality, a basic right that is enshrined in our constitutional law.

 

 

Justice A. Procaccia

I agree.

1.    The petition before us integrates two fundamental human rights: the right to education and the right to equality, including the right to equality in education, which are recognized as basic principles in constitutional law. This combination of rights has special weight, since it addresses the most important value in human life — the education of children and adolescents, the shaping of their personality to prepare them for what awaits them in their adult lives, and the need to train them to meet the challenges of life; education is intended to formulate the basic values on which their education will be based, and its purpose is to give them the tools to realize their abilities and talents and to attain complete self-realization. In addition to realizing the human potential of the individual, from a broader social perspective, education is also necessary to raise a new generation that will realize the vision of Israel society as a society based on democratic values, affording full protection to basic human rights.

2.    A central goal in implementing the principle of equality in education is creating equality of opportunities and the same starting points for different sectors of the population. In order to achieve substantive equality it is sometimes necessary to treat different sectors of the population in a different and discerning manner, by means of affirmative action on behalf of one group or another in order to bridge the major disparity and discrimination that have taken place over many generations (HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [83], at para. 6; Association of Tour Bus Operators v. Minister of Finance [78], at p. 117). In order to ensure that the potential of the younger generation, in all sectors, is ultimately realized in full, and in order to achieve a real equality of opportunities for all Israeli citizens, discernment is required in allocating the material resources in a manner that will provide greater support to those in need and less support for stronger students. In this way, the education system in Israel will achieve the most from its students, and it will give all groups an equal opportunity to realize their abilities and potential achievements.

3.    In this spirit we will require, for example, a correction of the significant disparity that has been revealed in the allocation of resources for ‘regular attendance officers’ in educational institutions in Arab Bedouin towns in the south of the country (HCJ 6671/03 Abu-Ghanem v. Ministry of Education [84]). In these schools, where the student drop-out rate is far higher than in other sectors of the population, clear priority is needed to allocate jobs in this field from the perspective that affirmative action is needed to realize the value of substantive equality between the different sectors of the population (see also I. Zamir, ‘Equality of Rights for Arabs in Israel,’ 9 Mishpat uMimshal 11 (2005), at p. 31).

4.    The need to bridge the major gaps in the field of education requires, on the one hand, a determined policy to implement the duty to act to achieve equality between sectors of the population. On the other hand, it is clearly not possible to achieve in full all the changes and social transformations in one stroke. Bridging major gaps that have been created over many years requires a broad perspective and the adoption of a policy of greater and lesser priorities, where what is important takes preference over what is secondary, and where there is an assurance that remedying one injustice does not inadvertently create another injustice. Consideration must be given to other important social goals and an order of priorities must be determined for these. Most important of all, a proper policy of achieving equality in education requires the fixing of a proper timetable in which the gradual process that has been begun to reduce the gaps will be implemented at a reasonable pace until the desired goal is attained.

5.    Bridging the gaps in academic achievement between different population groups is a national goal of supreme importance. The effect of bridging these gaps on the quality of life of the individual and the ability to achieve self-realization is great. No less significant is the decisive effect that shaping the values and image of Israeli society will have on future generations in all walks of life. For the human resource is the foundation on which this society is based and its most precious asset, in which we should invest the best material resources that we have.

 

 

Justice S. Joubran

1.    I agree with the comprehensive opinions of my colleagues President A. Barak and Vice-President M. Cheshin, according to which the government does not have the power to determine a primary arrangement, as stated in the opinion of my colleague Vice-President Cheshin, and the government decision is tainted by prohibited discrimination and unlawfully violated the right to equality between Jewish citizens and non-Jewish citizens, as stated in the opinion of my colleague President Barak. Similarly, I agree with the remarks added by my colleague Justice A. Procaccia.

2.    Like my colleagues, I too accept that the government decision that demarcated the national priority areas in education, discriminates against Arab towns. It is also my opinion the geographic criterion that was chosen led to a discriminatory result between Jewish citizens and non-Jewish citizens. I agree with the determination of my colleague President Barak that priority in the field of education for outlying areas should be given equally to Jews and Arabs.

I would like to expand on the right to equality and the right to education.

3.    The learned Justice (Emeritus) Prof. Itzchak Zamir and Justice Moshe Sobel state in their article ‘Equality before the Law,’ 5 Mishpat uMimshal 165 (2000), that equality is one of the basic values of every civilized state. The same is true in Israel. It can be said that equality, more than any other value, is the common denominator, if not the basis, for all the basic human rights and for all the other values lying at the heart of democracy. Indeed, genuine equality, since it also applies to relations between the individual and the government, is one of the cornerstones of democracy, including the rule of law. It is essential not only for formal democracy, one of whose principles is ‘one man one vote,’ but also for substantive democracy, which seeks to benefit human beings as human beings. It is a central component not only of the formal rule of law, which means equality under the law, but also of the substantive rule of law, which demands that the law itself will further the basic values of a civilized state.

It was already said of the principle of equality thirty years ago that it is the ‘essence of our whole constitutional system’ (Bergman v. Minister of Finance [1]). In another case it was said that ‘equality lies at the heart of social existence’ (Kadan v. Israel Land Administration [8]). It has also been said that equality is ‘one of the cornerstones of democracy’ (HCJ 869/92 Zvilli v. Chairman of Central Elections Committee for Thirteenth Knesset [85]).

Of the essence of equality and the deleterious effect of discrimination it has been said that —

‘… equality is a basic value for every democracy… it is based on considerations of justice and fairness… the need to maintain equality is essential for society and for the social consensus on which it is built. Equality protects the government from arbitrariness. Indeed, there is no force more destructive to society than the feeling of its members that they are being treated unequally. The feeling of inequality is one of the most unpleasant feelings. It undermines the forces that unite society. It destroys a person’s identity’ (per my colleague Justice A. Barak in HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [20], at p. 330).

In the same spirit it has been said that —

‘… (True or perceived) discrimination leads to a feeling of unfair treatment and to frustration, and a feeling of unfair treatment and frustration lead to envy. And when envy comes, understanding is lost… We are prepared to suffer inconvenience, pain and distress if we know that others too, who are the our equals, are suffering like us and with us; but we are outraged and cannot accept a situation in which others, who are our equals, receive what we do not receive’ (per my colleague Justice M. Cheshin in C.A.L. Freight Airlines Ltd v. Prime Minister [74], at pp. 203-204).

4.    The Declaration of the Founding of the State of Israel states that —

‘The State of Israel… shall be based on the principles of liberty, justice and peace, in the light of the vision of the prophets of Israel, it shall maintain a complete equality of social and political rights for all its citizens, without any difference of religion, race or sex, it shall guarantee freedom of religion, conscience, language, education and culture, protect the holy sites of all religions, and be faithful to the principles of the charter of the United Nations.’

Later in the Declaration of Independence, the members of the Arab people living in Israel are called upon ‘to uphold peace and to take part in the building of the state on the basis of full and equal citizenship, on the basis of appropriate representation in all its institutions, whether temporary or permanent.’

The struggle for dignity and equality is, as we have said, enshrined in the Declaration of Independence, within the framework of establishing the State of Israel as a Jewish and democratic state, and this expression is in addition to the label ‘Jewish.’ Equality also received a constitutional status in the enactment of the new Basic Laws: the Basic Law: Human Dignity and Liberty, and the Basic Law: Freedom of Occupation. The first two sections of these say: ‘The basic rights of the individual in Israel are based on the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty, and they shall be upheld in the spirit of the principles in the Declaration of the Founding of the State of Israel,’ and also: ‘The purpose of this Basic Law is to protect human dignity and liberty, in order to enshrine in a Basic Law the values of the State of Israel as a Jewish and democratic state.’

Justice E. Rubinstein, in one of his articles, points out that it should be remembered that the equation provided in the Basic Law: Human Dignity and Liberty has two parts. The State of Israel is a Jewish and a democratic state. It is easier to define what a democratic state is than it is to define what a Jewish state is. Moreover, the Jewish part of the equation should also be regarded as implying equality (see Justice E. Rubinstein, ‘On Equality for Arabs,’ Netivei Mimshal uMishpat, 279). Indeed, contrary to what some people claim… the fact that the state is Jewish does not conflict with its democratic character and its aspiration to give equality of rights. It was not by chance that the drafters of the Declaration of Independence chose to base the liberty, justice and peace that would be the foundations of the state on the vision of the prophets of Israel, since they were always the pillar of fire at the forefront of the struggle on behalf of the weak and the different, and for the equality of human beings, in the spirit of the words of the prophet Malachi: ‘Have we not all one Father, has not one God created us…’ (Malachi 2, 10 [87]).

Education is considered a main tool for the social and economic advancement of every society. It should be noted that the Arab society in the State of Israel has always taken seriously the need for and the importance of education, in the belief that education is a tool that is capable of guaranteeing social mobility.

A democratic society should aspire to equal education and giving equal opportunities to all its citizens. The right to equal education is a basic right and a fundamental condition for the self-realization of every individual in accordance with his needs.

 

 

Petition granted.

29 Shevat 5766.

27 February 2006.

Sheib v. Minister of Defence

Case/docket number: 
HCJ 144/50
Date Decided: 
Thursday, February 8, 1951
Decision Type: 
Original
Abstract: 

A teacher, Dr. Sheib, applied to the Principal of the Reali Montefiore School, Haifa, for employment as a teacher and was accepted subject to confirmation by the Department of Education in the Ministry of Education and Culture.

 

Pursuant to a general request contained in a circular sent to the principals of all classes of schools by the Director of the Department of Education, that teachers should not be employed save with the consent of the Inspector of Secondary Schools, the acceptance of Dr. Sheib as a teacher had been made conditional by the Principal upon such consent being obtained. Dr. Sheib in due course received a letter from the Principal according to which the Inspector of the Department of Education had written to him that "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." Enquiries by Dr. Sheib elicited that the Principal, acting in accordance with the circular, had approached the Ministry of Education which in turn had consulted the Ministry of Defence, and that that Ministry had objected to his appointment as a teacher because he had urged the use of arms against the Defence Army of Israel and the Government of Israel. There was no evidence that the Director of Education had applied his own mind to the matter.

 

Held, (Witkon J. dissenting) that the order nisi should be made absolute. Per Cheshin J.:

 

(a) There was nothing to prevent the Director from seeking advice on questions relating to his Ministry from other Ministries and officials, but he was neither directed nor entitled to carry out the will of others in matters in which he was the final arbiter.

In this case, however, the Director - even assuming that he was authorised by law to object to the employment of Dr. Sheib - had not applied his own mind to the question but had acted solely on the direction of the Ministry of Defence which itself had no authority in the matter. His decision, therefore, was not properly given.

 

(b) As the Reali Montefiore School was an entirely private school the only power under which the Director could act was that contained in S. 8 (3) of the Education Ordinance[1], which authorised him in certain cases to dismiss a teacher after the holding of a judicial inquiry. In the present case no such inquiry had been held and even if, as he alleged, Dr. Sheib had begun to work in the school before the objection had been notified - which was not clear - the Director had acted without authority.

 

(c) Although the Director of Education had no authority to issue the circular or to object to the employment of Dr. Sheib and the Principal was therefore entitled to disregard these acts, in view of the de facto relationship between schools and the Ministry of Education, and having regard to the nature of a writ of mandamus, the court should make the order nisi absolute and set aside the notice of objection.

 

Per Olshan J. Even if the circular were to be regarded as a simple request, in this case it constituted an interference in the internal affairs of the teaching profession without lawful authority.

 

Per Witkon J. Even if an order setting aside the Inspector's opposition to the employment of Dr. Sheib as a teacher were to be made, such order would not operate as a consent the giving of which was made a condition (albeit unlawful) to the employment of Dr. Sheib. Notwithstanding, therefore, that the Director had exceeded his authority, the order nisi should be discharged.

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

H.C.J  144/50

 

 

SHEIB

v.

MINISTER OF DEFENCE;

DIRECTOR OF DEPARTMENT OF EDUCATION, MINISTRY OF EDUCATION AND CULTURE; AND

ASHER COHEN, PRINCIPAL OF THE REALI MONTEFIORE SCHOOL

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 8, 1951]

Before: Olshan J., Cheshin J. and Witkon J.

 

 

 

            Contract - Employment of teacher in private school - Circular by Education Department to principals of schools - Employment made conditional upon consent of Inspector of Secondary Schools - Unauthorised interference by Department of Education in internal affairs of teaching profession – Mandamus - Powers of Competent Authority - Right to receive advice - Competent Authority must itself make final decision.

 

                A teacher, Dr. Sheib, applied to the Principal of the Reali Montefiore School, Haifa, for employment as a teacher and was accepted subject to confirmation by the Department of Education in the Ministry of Education and Culture.

                Pursuant to a general request contained in a circular sent to the principals of all classes of schools by the Director of the Department of Education, that teachers should not be employed save with the consent of the Inspector of Secondary Schools, the acceptance of Dr. Sheib as a teacher had been made conditional by the Principal upon such consent being obtained. Dr. Sheib in due course received a letter from the Principal according to which the Inspector of the Department of Education had written to him that "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." Enquiries by Dr. Sheib elicited that the Principal, acting in accordance with the circular, had approached the Ministry of Education which in turn had consulted the Ministry of Defence, and that that Ministry had objected to his appointment as a teacher because he had urged the use of arms against the Defence Army of Israel and the Government of Israel. There was no evidence that the Director of Education had applied his own mind to the matter.

                Held, (Witkon J. dissenting) that the order nisi should be made absolute. Per Cheshin J. (a) There was nothing to prevent the Director from seeking advice on questions relating to his Ministry from other Ministries and officials, but he was neither directed nor entitled to carry out the will of others in matters in which he was the final arbiter.

                In this case, however, the Director - even assuming that he was authorised by law to object to the employment of Dr. Sheib - had not applied his own mind to the question but had acted solely on the direction of the Ministry of Defence which itself had no authority in the matter. His decision, therefore, was not properly given.

                (b) As the Reali Montefiore School was an entirely private school the only power under which the Director could act was that contained in S. 8 (3) of the Education Ordinance[1], which authorised him in certain cases to dismiss a teacher after the holding of a judicial inquiry. In the present case no such inquiry had been held and even if, as he alleged, Dr. Sheib had begun to work in the school before the objection had been notified - which was not clear - the Director had acted without authority.

                (c) Although the Director of Education had no authority to issue the circular or to object to the employment of Dr. Sheib and the Principal was therefore entitled to disregard these acts, in view of the de facto relationship between schools and the Ministry of Education, and having regard to the nature of a writ of mandamus, the court should make the order nisi absolute and set aside the notice of objection.

                Per Olshan J. Even if the circular were to be regarded as a simple request, in this case it constituted an interference in the internal affairs of the teaching profession without lawful authority.

                Per Witkon J. Even if an order setting aside the Inspector's opposition to the employment of Dr. Sheib as a teacher were to be made, such order would not operate as a consent the giving of which was made a condition (albeit unlawful) to the employment of Dr. Sheib. Notwithstanding, therefore, that the Director had exceeded his authority, the order nisi should be discharged.

           

Israel cases referred to:

(1)   H.C. 1/49 - Solomon Shlomo Bejerano and another v. Minister of Police and others, (1948/49), 1 P.E. 121.

(2)   H.C. 9/49 -Yehuda Blau v. Yitzhak Gruenbaum, Minister of Interior and others, (1948/49), 1 P. E. 225.

(3)   H.C. 22/49 - Michael Sabo v. Military Governor, Jaffa, (1949), g P.D. 701.

(4)   H.C. 47/49 - Matossian v. Dr. A. Bergman, District Commissioner of Jerunsalem and others, (1950), 4 P.D. 199.

(5)   H.C. 108/49 - Bouchman and Shoulyan v. Ya'acov Bergman. District Commissioner of Haifa, (1950). 3 P.D. 182.

 

English case referred to:

(6)        R. v. Barnstaple Justices, (1937) 4 All E.R. 263.

 

Weinshall, for the petitioner.

H. H. Cohn, Attorney-General, for the second respondent.

 

            CHESHIN J. This is the return to an order nisi calling upon the second respondent - the Director of the Department of Education in the Ministry of Education and Culture - to show cause why he should not withdraw his opposition to the employment of the petitioner as a teacher in the institution conducted by the third respondent.

 

2. The facts disclosed in the affidavits of the petitioner and the second respondent are as follows:

 

            The petitioner, Dr. Israel Sheib, a teacher by profession, has taught in various schools both in this country and abroad. He acquired his general education and professional qualifications in the Rabbinical Seminary of Vienna and in the Faculty of Philosophy in the University of that city. Before the outbreak of the Second World War the petitioner was a teacher in the Hebrew Teachers College of Vilna and after his immigration to Israel, in 1941, he was accepted as a teacher in the Ben-Yehuda Gymnasium in Tel Aviv. In April, 1944, he was arrested by the British Criminal Investigation Department on suspicion of underground activity, and was sent to the detention camp at Latrun. After two years, however, he managed to escape from the camp, and from then until the conclusion of the Mandate and the evacuation of the British forces from the country he continued to engage in activity in the "Lechi"1 organization which was operating underground at that time. When the underground movements were disbanded after the establishment of the State, the petitioner desired to resume his occupation as a teacher, and he approached various educational institutions for this purpose. His efforts, however, were of no avail - a fact attributed by him to his underground activity in the past and his political opinions which stood as an obstacle in his way. The petitioner, however, did not despair but continued his efforts to obtain employment as a teacher, and during the school year, 1950/51, he managed to secure a contract with the third respondent, the Principal of the Reali Montefiore School in Tel Aviv. This contract, however, was conditional upon confirmation by the Department of Education of the Ministry of Education and Culture and it would appear that the third respondent approached the Ministry in order to receive the confirmation required. On September 17, 1950, the petitioner received a letter in the following terms from the Principal of the Montefiore School : -

           

"I regret to inform you that according to a letter dated September 8, 1950, which I have received from the Department of Education, you may not be accepted as a teacher in our institution. A copy of the letter referred to is enclosed herewith."

 

            The copy of the letter referred to from the Department of Education, reads:

           

 

STATE OF ISRAEL

Ministry of Education and Culture,

Jerusalem

Department of Education.

September 8, 1950

The Directorate of

the Montefiore School,

Tel Aviv.

 

Dear Sir

            The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher. I conveyed this information to the secretary of the school yesterday.

                                                                                   Yours faithfully,

                                                                                   (Sgd.)

                                                                                   Dr. M. Hendel

                                                                                   Inspector of

                                                                                   Secondary Schools."

           

            According to the version of the petitioner, this letter of the Inspector of Secondary Schools arrived two weeks after the petitioner had already started teaching at the Montefiore School, but this version is specifically denied by the second respondent. Since neither the petitioner nor the Inspector was cross-examined, I cannot decide this point, and must deal with the matter on the basis that the contract between the petitioner and the third respondent was cancelled as a result of the objection of the second respondent, before the petitioner started working at the school.

            In view of this situation, the petitioner addressed a letter dated October 23, 1950 to the first respondent, the Minister of Defence, and to the Minister of Education and Culture - who was not joined as a party to these proceedings - requesting them to inform him of the reasons and grounds upon which he had been disqualified as a teacher. No reply to this letter was received from the Ministry of Education and Culture, but the Minister of Defence replied as follows:

           

STATE 0F ISRAEL

 

            Jerusalem, November 25, 1950

Dr. Israel Sheib,

124, Dizengoff Street,

Tel Aviv.

           

Dear Sir,

            Your letter of October 23, 1950.

            The Ministry of Defence objected to your appointment as a teacher because in your book and your newspaper you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable.

           

                                                                                 Yours faithfully,

                                                                                 David Ben-Gurion

                                                                                 Minister of Defence."

           

            This then is the background which led to the issue of the order nisi against the second respondent (though not against the other respondent, to whom only copies of the papers were sent by order of the court). With this background in mind, and in the light of the facts which I have already cited together with some other facts which will be mentioned later, the court must now decide upon the application of the petitioner.

           

3. The nature of the petitioner's complaint - as was emphasised by his counsel at the beginning of his argument - is that the petitioner is being persecuted because of his personal opinions and his political activity. I take the liberty of expressing on this occasion and from this Bench my wish and my hope which, I am sure, are shared by thousands of the citizens of this State, that it will not be long before the Knesset passes a Law imposing a strict prohibition on teachers and educators and all those who are concerned with education, in theory or in practice, from indulging openly or secretly, and whether within a school or outside school, in politics, or in any form of occupation which has a political flavour. The education of our children is a sacred task which may not be sullied by alien influences. Those who engage in politics and those who engage in education must remain within their own respective domains and one should not trespass on the field of the other. And if a teacher and educator wishes to enter the cauldron of politics, let him cast aside the teacher's robe. and engage in politics to his heart's content. But let him not enter a school again, and poison the minds of his pupils with the violence of politics and party differences. To our regret, however, no such Law has yet been placed upon the statute book of our State, so all who wish to combine teaching and politics may do so and no one can stand in their way. Since this is so, the one may not be prevented from doing what the other is permitted to do; and a teacher - or one who is preparing himself to be a teacher - is not to be disqualified merely because of his political opinions or activity.

 

4. It was said that no complaint can be made against the second respondent for two reasons: first, that the third respondent, the Principal of the school, and the petitioner both made the acceptance of the petitioner as a teacher in the school conditional upon the securing of the prior confirmation of a third person - in this case the second respondent - and if that third person refuse to give the required confirmation, what recourse can the petitioner have against him? Will the court compel him to confirm the appointment just in order to give effect to the contractual relationship between the parties to the agreement - he himself being a stranger to them and they being strangers to him? It was argued in the second place that when the second respondent was asked his opinion about the petitioner, he was under no "legal duty . . . to give the Reali Montefiore School . . . a dishonest reply". The meaning of these words - which are quoted from the affidavit of the second respondent - as I understand them, is this: the second respondent had made up his mind to oppose the employment of the petitioner as a teacher. but the law imposed on him no obligation to reply to the question of the Principal of the Montefiore School as to the reasons for his objection to such employment, and since that is so the court will not order him to give such a reply contrary to his opinion and his conscience.

 

5. These reasons appear to be two, but are in fact only one. I, for my part, would incline to accept them as sound and decide against the petitioner had the third respondent in fact acted on his own initiative and opinion and if without any pressure from outside he had approached the second respondent and asked his opinion of the petitioner. Had this been the case I would have said that he sought good advice from the second respondent and the confirmation of a man who was an expert. The approach of the third respondent to the second respondent, however, was not a mere chance approach, nor was it made for the purpose of seeking advice - it was made in consequence of something which had happened beforehand. What had taken place was as follows: on June 13, 1950, the second respondent - as appears from his own affidavit - had addressed a circular to the directors of secondary schools in the country in which he requested them not to employ teachers in their schools without the consent of the Government Inspector of Secondary Schools. This Inspector is the assistant and principal aide of the second respondent. The legal effect of this circular, and the manner in which the third respondent was obliged or able to perform his own duties - had he wished to do so - in the light of its provisions, are questions with which we shall deal later. At this stage, and for the purpose of the twofold argument to which I have referred, it is sufficient to point out that a condition which a man lays down himself has not the same effect as a condition which he lays down upon the orders or suggestions of a higher authority. In the first case he will express his own untrammeled will, while in the second case he will give effect to the wishes of his superiors. From this point of view, considerable interest attaches to the letter of the Inspector of Secondary Schools to the third respondent, and the third respondent's letter to the petitioner, for these two letters are apt to throw a good deal of light on the internal relationship between the schools - even private schools - and the Department of Education and those who stand at its head, as well as upon the nature of the condition laid down in the agreement between the third respondent and the petitioner. It should be noted that the Inspector does not say in his letter that the second respondent - in accordance with his own opinion or upon the advice of the Ministry of Defence - is not prepared to confirm the contract between the third respondent and the petitioner, but expresses specific and clear objection to the employment of the petitioner. The letter does not merely express an absence of a friendly attitude to the petitioner, but takes up a definitely hostile attitude. And how did the third respondent understand the attitude of the second respondent? The Principal does not write, in his letter to the petitioner, that the contract is cancelled because of non-receipt of confirmation or words to that effect, but that in accordance with the letter of the Department of Education the petitioner may not be accepted as a teacher. In short, what was designed - as has been submitted to us - to be just good advice, became opposition; the opposition became a serious prohibition; and it was this prohibition, real or assumed - which led to the suspension, or, to put it more accurately, to the non-acceptance of the petitioner as a teacher. The non-fulfillment of the contract between the petitioner and the third respondent was not, therefore, the fruit of the third respondent's free choice, but the product of compulsion which was imposed upon them by a person- a public official - upon whom depended the fulfillment or non-fulfillment of the condition referred to. It cannot be said, moreover, as was submitted before us, that this person expressed only his own opinion, and since the law imposes no duty upon him, he cannot be compelled to pervert his opinion, and the petitioner, therefore, has no recourse against him.

 

6. It was also submitted that the second respondent acted according to law, and that the court will therefore not interfere. The justification of his action is expressed by the second respondent in his affidavit as follows:

 

"In view of the finding of the Minister of Defence and his Ministry - who are responsible for matters relating to the defence of the State - that the petitioner is not suitable to be a teacher, I, as the person responsible for the educational organization in the State am obliged to do everything I can to prevent the petitioner from being accepted as a teacher in the Reali Montefiore School or in any other school in the State."

           

            From this language we draw conclusions : first, that it was the Minister of Defence and his Ministry who disqualified the petitioner from being a teacher in the schools of the country; secondly, that the second respondent regarded the decision of disqualification referred to as a decision binding upon him. It seems to me, however, with all respect to the second respondent, that even if we assume that the matter in question falls within the scope of his authority - a question to which we shall return later - we are confronted here with a confusion of issues and an overstepping of jurisdiction on the part of certain government authorities.

 

7. In my opinion there was no reason for the petitioner to concern himself with the first respondent and join him as a party to these proceedings and the second respondent's reliance upon this powerful support in order to justify his actions will not avail him. The respect due to the Minister of Defence is not open to question and there is no one in the State who underestimates the onerous nature of his duties and the extent of his responsibilities. Matters of education, however, were not entrusted to him. nor do they fall within the limits of his authority. It was to deal with such matters that the second respondent was appointed, and the duty of dealing with them has been imposed upon him, and upon him alone. It is obvious that the division of the work of government between various ministries and branches requires frequent consultation between the ministries, to ensure efficiency of work and coordination of activity. From this point of view there is, of course, nothing to prevent the Director of the Department of Education, in the same way as any other public official in the State, from seeking advice on questions relating to his ministry from other ministries and officials, so that those engaged in one field of activity way learn from those acting in another field. He is not directed, however, nor is he entitled, to carry out the will of others in matters that fall within the jurisdiction of his own ministry. In such matters he is the final arbiter, and when he reaches a decision the decision must be his own decision and not the result of an instruction which he has received from another. He is neither obliged nor permitted to do an act suggested by someone else, unless he gave his own opinion on the matter and made the suggestion his own, and then too the considerations which weighed with him must he considerations of education and not extraneous considerations. In this case it is admitted by the second respondent that it was not he but the Minister of Defence who decided that the petitioner is not suitable to be a teacher in Israel. Had he said. for example, that on the basis of the decision of the Minister of Defence he, the second respondent, is also afraid that the petitioner may incite and mislead the children in Israel; or that the fact that the Minister of Defence regards the petitioner as dangerous from the point of view of the security of the State disqualifies the petitioner in the principal's own eyes, too, from being a teacher; had the respondent made this the ground of his objection to the appointment of the petitioner as a teacher. J would not have found any fault with his action, for then I should have said that his opposition was based upon educational considerations. But the second respondent neither said this nor acted in this way. He carried out the will of the first respondent; and in the same way as the first respondent was not competent to give the decision, the second respondent was not entitled to give effect to it.

 

8. It has been submitted to us, however, that considerations of security are to be regarded differently, that the petitioner is a dangerous person, that he speaks against the Israel army and undermines the security of the State. The reply to this submission would seem to be that such a man is not only unsuitable to act as a teacher, but should be kept out of an office, a shop, a workshop, kept off the streets and not allowed to mix even with adult persons. Not only is it permissible to take away his livelihood, but also to deprive him of his personal liberty. Anyone who preaches today that one should take up arms against the Defence Army of Israel - the most precious possession which has come into our hands since the establishment of the State - or should take up arms against the Government of Israel, robs the soul of the people and must pay the penalty for his actions and his deeds. Our State, however, is based upon the rule of law and not upon the rule of individuals. And if the censorship has passed over in silence the publication of the petitioner and has not prevented him - strange as it may seem - from preaching rebellion, law still rules in Israel. The authorities will take such action against the petitioner as the law allows and he will then, at least, enjoy the right given to every citizen in the State, the basic right of a man to defend himself before the courts. If the opinions of a citizen are rejected, that is not to say that his life is at the free disposal of anyone; the ways of earning a living are not closed before him, nor is his life to be embittered by administrative action. This court has already dealt with this subject in Bejerano v. Minister of Police, (1) :

 

"When a person petitions this court for an order directing a public official to do a particular act . . . the petitioner must show that there is some law according to which the public official is under a duty to do that which is demanded of him. This principle will not, in our opinion, apply where a person seeks - not the performance of a particular act, but the restraining of the performance of an act which injures him, that is to say, a negative order. In such a case it is for the petitioner to show that he has the right to do that which he seeks to do, and, as against this, it is for the public official to prove that his action, intended to prevent the exercise of that right, is lawful. In other words, where a petitioner complains that a public official  prevents him from doing a particular act, it is not for the petitioner to prove the existence of a law which Imposes upon the public official the duty of permitting him to do the act. On the contrary, it is for the public official to prove that there is some justification for the prohibition which he seeks to impose." (ibid. page 124, (1).)

           

            And in Blau v. Minister of Interior, (2) the court following Bejerano's case, (1), repeated the same principle in these words: -

           

"Where the petitioner asks this court to issue a writ of mandamus against the authorities, he will not succeed in his application unless he shows that the law imposes upon the authorities a duty to do what is demanded of them. If, however, the authorities do an act which injures the rights of the individual, it is for the authorities to show that the law gives them the right to do that act." (see Bejerano's case, (1) at page 228).

           

9. It should be pointed out at this stage that in spite of the clear intimation by the Minister of Defence of the reason for his objection to the petitioner, that is to say, his unlawful activities, and in spite of the indication of the sources in which the language objected to, which was used by the petitioner, is to be found, no article or copy of an article written by the petitioner, reflecting these inciting opinions, has been brought before us, either in the affidavit of the second respondent or as an annexure thereto. I do not mean to say that this fact enables us to review the conclusion of the Minister of Defence. We are not competent to do so. As is well known, however, a writ of mandamus is designed to serve as a means of enforcing compliance with the law and not as an instrument to help in its evasion. It is for this reason that a writ of mandamus will not issue where it appears that it will lead to unlawful acts, or that it is contrary to the public interest. Similarly no relief is granted to a person who approaches this court with unclean hands. If, therefore, any proof at all had been produced before us that the petitioner by his words and articles had in fact broken the law, we should have said that it was these acts on his part which had caused the difficulties in which he has now found himself, and that it is no duty of ours to give him assistance. This, however, as I have said, has not been proved or even argued. It is true that counsel for the second respondent, in the course of his argument, did say that the petitioner was at one time a member of "Lechi"-a fact admitted by the petitioner, as I have said, in his fact words to this court - and submitted that it is a legal presumption that the petitioner has continued to remain a member of "Lechi" so long as it has not been proved to the contrary. These matters, however, are not relevant to the argument, for neither the Minister of Defence in his letter to the petitioner nor the second respondent in his affidavit. based their objections to the petitioner on his past membership of the "Lechi" organization. It is too late at this stage to put forward this submission.

 

10. It is appropriate at this point to refer to section 8 of the Education Ordinance, which was enacted to meet a situation similar - though not in every particular - to the situation with which we now have to deal.

 

            According to that section the Director may require the dismissal of any teacher, whether in a public or private school, or in an assisted or unassisted school. Before he may do so, however, a judicial enquiry must be conducted by a judge or magistrate appointed for the purpose and it must first be shown, to the satisfaction of the Minister of Education, that the teacher imparted teaching of a seditious or disloyal character. It is true that this section only applies to a teacher who has already entered upon his duties. And we are dealing with the case of a person who has not yet started working as a teacher. We must also not disregard the important first, however, that the institution of the third respondent is not a government institution, but an entirely private one. The Government is perhaps entitled to employ in State institutions only those persons of whom it approves and may refuse to employ persons whose opinions do not conform with its own views. I say "perhaps" since this question, in its concrete form, does not arise here. The second respondent admits that for the reason stated above - and correctly so - s. 8(3) has not yet been applied to the petitioner, and the question that now arises is as follows: Whence did the second respondent derive the authority to send to the principals of school a circular of the nature of the one sent to the third respondent? This brings us to a subject of which some indication has been given in my previous remarks.

           

11. The second respondent acts under the provisions of the Education Ordinance and the Education Rules, in which the rights and powers of the Director of Education in his relationship with schools, principals, teachers and local authorities are set out in detail. There is, however, no mention in the Ordinance or Rules referred to of any right or power to demand of the principals of schools, government or private, not to employ a teacher in their schools save with his prior consent. It seems to me, therefore, that from this point of view the second respondent exceeded his authority, and that the circular which he sent to the principals of schools as well as the notice of his objection to the employment of the petitioner which followed that circular, have no validity. They constitute an interference - albeit with the good, though mistaken, intention of fulfilling a public duty - with the right of citizens to enter freely into contracts of service. This interference is legally objectionable for two reasons. In the first place, it creates the impression that the Minister of Defence, and not the second respondent, is the final arbiter in the question of who is and who is not suitable to be a teacher - in any event it would appear that that was the case here. In the second place, the petitioner was administratively disqualified from being a teacher without having been given the opportunity of appearing before a tribunal or public board in order to defend himself against his accusers. (No board exists because the legislature did not think of establishing one). A procedure such as this is not permissible.

 

12. Now there arises the important question whether this court is obliged, or even competent, to direct the second respondent to cancel the notification of objection which he sent to the third respondent in regard to the petitioner. J must confess that at first I found great difficulty in deciding this question and found myself confronted with what appeared to be a twofold difficulty. In the first place, so I thought, what is the necessity of formally; canceling the notice of objection? This notice, so it would seem. is in any case void since it was sent without authority. The third respondent, therefore, may regard it as a worthless piece of paper ; and if he does not wish to, will not be bound to act in accordance with its terms. In the second place, since the law did not authorise the second respondent to send notices of objection such as these, it is obvious that it did not concern itself with this problem at the outset and imposed no duty upon the second respondent, nor conferred upon him the right, to cancel such notices. Will this court assume authority in these circumstances to direct the second respondent to cancel the notice of objection which he issued in this case? In doing so, under what principle would it be acting ?

 

13. I said that I found difficulty in deciding at first, but I have eventually reached the conclusion that it would be proper in a case of this kind for the court to act and issue the writ of mandamus. It is true that principals of schools were fully entitled to regard the circular - and the third respondent was also entitled to regard the notice of objection - of the second respondent as invalid and were entitled not to act in accordance therewith. Had they done so there could have been no complaint against them, and it is unnecessary to add that they would not have been penalised for failure to obey instructions of the competent authority. We must not, however, disregard the internal relationship between the second respondent and the principals of schools. He is the Director of the Department of Education of the Government, and they are the principals of educational institutions in the State. There are many bonds which bind the schools to the Ministry of Education. The schools - even private and non-subsidised - are dependent upon the goodwill and often also upon the help of officials of the Ministry of Education in matters of guidance, advice, recommendations, and similar matters. I do not mean to say that if another public official, who was a complete stranger to matters of education, expressed opinions and gave decisions in maters of education, this court could not interfere with his conclusions and decisions. This question does not arise before us in these proceedings and does not demand an immediate solution. In the present case, however, it is beyond all doubt that because of the relationship between schools and the Minister of Education the second respondent exercises indirectly a most powerful influence over principals of schools, even in regard to matters which are beyond the scope of his limited authority, and that such directors will not always see their way clear to disregard such instructions even if they are entitled to do so. A very real piece of evidence which shows that this is so is the fact that, in the case before us, the third respondent actually applied to the second respondent for instructions, although he was under no obligation to do so. In these circumstances, in order to avoid the doing of injustice and with the object of ensuring that the bounds of the authority of public servants are adhered to, this court will certainly express its opinion in the matter.

 

14. The answer to the second difficulty, namely, how this court can order a public officer to do something which he is under no obligation to do, may he gathered from the very nature of a writ of mandamus. There are three elements in such a writ, namely:

 

(1)   a clear legal right in the petitioner to receive the relief which he claims;

(2)   a public duty upon the officer to do what the petitioner asks the court to compel him to do;

(3)   the absence of an alternative remedy.

 

            The petitioner in the case before us, as has been said in his affidavit which has not been denied by the second respondent, has fulfilled the requirements of the Education Ordinance which qualify a person to follow the occupation of a teacher. In the light of what was said in Bejerano v. Minister of Police, (1), the petitioner has acquired a legal right to engage in the occupation of a teacher and to insist that public officers will not interfere with him in earning his living by carrying on his profession. The second respondent acted under the completely mistaken impression that he had the right to direct the third respondent at the outset not to employ a teacher otherwise than with his consent. and to object to the candidature of the petitioner thereafter. These acts, which were done without authority, are not only calculated to prejudice a particular class of citizens but actually do prejudice one of them, namely, the petitioner. In the circumstances such as exist in this case, a public officer has failed in his public duty and the officer must make good the harm done by setting aside the act which he did without authority. The mandamus to he issued by this court will direct the second respondent to fulfil this public duty towards the petitioner. So far as the third element referred to is concerned, it is not disputed that the petitioner has no alternative remedy. In my opinion it would be appropriate in these circumstances that a writ of mandamus be issued.

 

15. The court cannot of course direct the second respondent to cancel the circular which he sent to principals of schools, including the third respondent, since no prayer for such relief has been included in the application of the petitioner. The reason for this is that the petitioner had no knowledge of this circular when he filed his application. It only came to his knowledge from the affidavit of the second respondent. The notice of objection, being as it is a natural and necessary consequence of the circular, cannot remain in force, and the writ of mandamus will apply to it alone. It is clear that the setting aside of the notice of objection of the second respondent does not mean the giving of consent to the employment of the petitioner as a teacher in the educational institution of the third respondent. The setting aside of the notice of objection is based on the fact that the issue of that notice was from its inception an act which fell beyond the authority of the second respondent. That is all, and no more.

 

OLSHAN J. It is my opinion that were we to refuse to accede to the application of the petitioner, we would be a party to turning the principle of "the rule of law", which prevails in our State, into a sham. The fundamental meaning of that principle is that if there are to be restrictions on the liberty of the individual it is because such restrictions are essential for preserving the real liberty of the subject or the public interest. These restrictions must be laid down by the law, that is to say, by society which reflects its opinion in the laws which are enacted by the parliament which represents it, and not by the executive authority, whose duty it is merely to carry into effect these restrictions, in accordance with such laws.

 

            The rule inherent in this principle shows that the rights of the individual may not be restricted or removed by an official or Minister just because he thinks, perhaps correctly, that to do so will be of benefit to the State. It is for him to satisfy the legislature that such restrictions are essential or necessary, and it is only after the legislature has authorised them that the official or Minister may carry them into effect.

           

            It is true that in our time, with the increased intervention of the State in the life of the individual, the task of the legislature has become more difficult and complex. It is not always easy to foresee every circumstance which may arise and to meet it by a reference to it in the statute. A tendency therefore exists to confer powers of subordinate legislation, in such statutes, upon the administrative authority, or of leaving the decision in each case to the discretion of the administrative authority in the light of the general principle laid down by the legislature in the statute. When the legislature leaves the decision as to the imposition of restrictions to the discretion of the executive authority, it follows that the legislature, while laying down the general principle, does not concern itself with the detailed circumstances in which the restrictions should be imposed, but leaves the determination of those circumstances to the discretion of the executive authority. This tendency, which is increasing, presents a serious obstacle to the application of the principle of the "rule of law". It does not, however, destroy it completely, for the transfer of such power in a particular statute to the executive authority still does not enable that authority to act as it pleases, even in regard to areas not covered by the statute. In other words the executive authority is not free to impose restrictions just because it regards them as desirable, unless the statute which deals with the particular matter gives it the power to impose such restrictions if it deems them necessary. If a power such as this is not included in a particular statute, it is for the executive authority to satisfy and induce the legislature to confer such power upon it. For so long, however, as such power is not accorded to the authority, it may not assume such power itself. Were the position otherwise, the whole principle of the "rule of law", one of the guarantees of democratic rule in the State, would be turned into a meaningless concept, and all the statutes which deal, for example, with the regulation of the employment of citizens in various professions, would become of secondary importance.

 

            Let us take as an example the Medical Practitioners' Ordinance. That Ordinance lays down a number of conditions for the issue to a person of a license to practice the profession of medicine. If the Minister of Health, without being authorised by the Ordinance so to do, were to instruct private hospitals not to employ doctors without his prior consent, he would thereby, in fact, add a further condition to those laid down in the Ordinance for the employment of doctors in their profession - a condition not laid down by the legislature. The citizen, therefore, although he fulfilled the requirements of the law, would find himself dependent upon the favour of the Minister.

           

            Returning to the matter before us, it is not disputed that the petitioner is qualified to engage in teaching in accordance with the Education Ordinance; and there is no provision in that Ordinance by which his right to act as a teacher in a private school is made conditional upon the confirmation or consent of the Minister of Education or of the second respondent. This case is not concerned with a government school, or a school subsidised by the Government, in regard to which different considerations may perhaps apply. Nothing in the Ordinance suggests that there is a right in the Minister of Education or any other Minister to impose a restriction such as this, s. 8(3) of the Education Ordinance is the only section which confers the right upon the Minister of Education to intervene in the question of employment of a teacher by an educational institution and to demand his dismissal; and even this section applies only if such teacher has been proved, as a result of a judicial equiry, to be guilty of a criminal act or to have been engaged in incitement against the State.

 

            The question before us is not whether it would be a good or a bad thing if the petitioner were to be a teacher at the Montefiore School in Tel Aviv. The complaint of the petitioner is in fact confined to a prayer for an order directing the second respondent to cancel his objection to the employment by the third respondent of the petitioner as a teacher. Counsel for the petitioner rightly urged upon us that, before he need deal with the prayer, it was incumbent upon the Attorney-General to show on the basis of which law, or by what legal authority, a restriction has been imposed upon him, as upon all other teachers, preventing his appointment as a teacher in any institution, even a private institution, save with the consent of the Minister of Education. The learned Attorney-General was unable to direct our attention to any such law or authority.

           

            It is very possible that if a person "urges the use of arms against the Defence Army of Israel and against the Government of Israel" he should be disqualified from teaching in any school in the State. It is for the Knesset, however, to express its opinion on the matter, and should it decide that such a disqualification should be introduced, it will also direct by what method it is to be determined whether a particular person has in fact urged the use of force, and who is authorised to make such a finding.

           

2. It is quite possible that a person who approaches us with a complaint against the authorities that they have placed obstacles in his path in connection with his employment as a teacher, will not obtain the relief which he seeks if it is shown that he urges the use of violence against the Defence Army of Israel and against the Government of Israel, because the granting of relief by this court in cases of that kind is a matter within its discretion. The only material before us, however, on this point, is the letter of the Minister of Defence to the petitioner in which he makes this charge against him, and the reaction of the petitioner is to be found in paragraph 18 of his affidavit in which he says : "more particularly as the allegations contained in annexure E are not based on fact". I am, moreover, of the opinion that it is of far greater benefit to the community that the principle of "the rule of law" should be strictly maintained in this case than that we should refuse to accede to the application of the petitioner because of the suspicion that he urges the use of violence against the army If, after all, this suspicion is well-founded, the petitioner is guilty of a criminal offence and the authorities are free to deal with him as with any other offender.

 

3. The learned Attorney-General attempted to present this case as one of the utmost simplicity. With the consent of the petitioner, he submitted, a condition was introduced into the contract between him and the third respondent that his acceptance as a teacher in the school would be dependent upon the consent of the Ministry of Education. Because of this condition the second respondent was requested to furnish the consent required, that is to say, to express his opinion. In reply to this request the second respondent furnished to the third respondent the opinion of the Minister of Defence that the petitioner was unsuitable to act as a teacher. Even if this should be interpreted as a refusal to give the confirmation requested, the Attorney-General submitted that it involves no unlawful act or one in excess of authority.

 

            Were it possible to regard the contract between the petitioner and the third respondent as the starting point of this affair, I would not hesitate to recognize the correctness of the submission of the learned Attorney-General. This argument, however, overlooks the contents of paragraph 8 of the petitioner's affidavit, that is to say, that the condition referred to was introduced into the contract by the third respondent "pursuant to instructions". Some support for this allegation is to be found in paragraph 1 of the second respondent's affidavit in which it is said that in the circular which he sent to the principals of secondary schools in the country in 1950 he, the second respondent, requested them "not to employ teachers in their schools save after the receipt of the consent of the Inspector of Secondary Schools."

           

4. It is clear that the condition referred to was introduced into the contract because of the circular which was sent by the second respondent to the principals of schools. That this is so I conclude from what is said in paragraph 8 of the petitioner's affidavit which was not specifically denied by the second respondent, but who did not admit it because he had no knowledge of it (see paragraph c (2) of his affidavit). The second respondent did not annex to his affidavit the circular which he sent and we cannot examine the language of the "request" which is included in the circular with a view to ascertaining whether it is the language of a mere request, or an instruction which has the form of a request. For the words "you are requested" may sometimes be interpreted as "you are required". The second respondent was also not summoned for cross-examination on his affidavit.

 

            This is important, for I would not think it possible to lay down a general principle that a Government Ministry is prohibited from addressing requests to the public or to particular institutions unless specific authority therefore exists in the law.

 

            I have no doubt that if the meaning of the circular referred to is to instruct owners of private schools not to accept teachers without the authority of the Ministry of Education, it was issued without authority, lacks all legal validity, and is of no binding force.

           

            Even if we regard the circular, however, as a simple request, I cannot escape the conclusion that in the particular case before us the sending of the circular constituted an interference in the internal affairs of the teaching profession, or a portion of it, without lawful authority. There is no doubt that in sending the circular the second respondent had reason to believe or to expect that the principals of schools would accede to his request. As a result, a new situation was created for the teaching profession or a portion of it. It is not sufficient that teachers possess the qualifications required according to the Education Ordinance, but there is now an additional condition - the confirmation of the Ministry of Education. Not only this, but the Ministry of Education has also failed to set up some body to which a teacher may turn and defend himself against a refusal of the Ministry to confirm his appointment as a teacher. We have not been told that the matters to be taken into account in giving the confirmation were set out in the circular. It follows that the second respondent arrogated to himself the power of preventing the appointment of teachers by his own fiat, without any right of redress. We do not doubt the good intentions of the second respondent and that he did not issue the circular with the object of exercising authority. Such a circular, however, cannot afford authority for discriminating against a teacher or limiting his rights, in the absence of legal power to do so. Bad the condition relating to the giving of authority by the Ministry of Education been introduced on the initiative of the principal of the school, we should not have been able to interfere. Since, however, the necessity for this consent was created on the initiative of the Ministry of Education, we must decide that it was issued without authority.

           

5. As I have said, were I able to regard the "reply" sent to the third respondent in regard to the petitioner as an independent link and not as a consequence of the circular, I should not have been able to find a legal basis for the complaint of the petitioner in this court. In order to clarify my approach to the problem before us, I also wish to point out that had I not found that the circular was legally ineffective by reason of its having been issued without lawful authority, I am not sure that it would have been possible to set aside the letter because of its contents. It is true that had the law conferred upon the second respondent the power of disqualifying teachers at his discretion, he would have had to act according to his discretion and not on instructions of the Minister or any other person. This does not prevent him from consulting or taking the opinion of another person, and accepting that opinion so far as it appeals to him. If the matter is one which involves the question of security, I am prepared to go even further. Had it been known to the second respondent that the Minister of Defence opposes the appointment of the petitioner as a teacher for reasons of security and that the facts forming the basis of such reasons are secret in character, the second respondent might have given weight to the very fact of the opposition of the Minister of Defence, even if the reasons referred to were not clear to him.

 

            In my opinion, however, all these problems have no relevance here, since in Day view the circular was issued without authority.

           

6. The prayer of the petitioner before us was for an order against the second respondent to show cause why he should not withdraw his opposition to the acceptance of the petitioner as a teacher in the institution of the third respondent.

 

            We cannot order the second respondent to take back the letter sent to the third respondent, since this letter was sent in reply to a question of the third respondent and merely stated that the Minister of Defence opposes the appointment of the petitioner as a teacher. This fact is correct, as appears from exhibit "E" which was filed by the petitioner. We also cannot order the second respondent to "withdraw his opposition", if by withdrawing his opposition he will be taken to have assented, and this court cannot order the second respondent to give his consent to the appointment of the petitioner as a teacher by the third respondent. As far as this letter is a consequence of the circular referred to, and constitutes an objection to the employment of the petitioner by the third respondent, I think that we should follow the view of the majority in Sabo v. Military Governor, Jaffa, (3), and decide that the objection of the second respondent has no legal authority, and that he must therefore refrain from interfering in this matter. In this sense we should make the order nisi absolute.

 

WITKON J. The petitioner is a teacher by profession and has been a teacher in Israel and elsewhere. It is alleged in the petition - and is not denied by the respondent - that the petitioner came to Israel in 1941, and engaged in teaching in Tel Aviv until he was arrested by the British police in April, 1944, on suspicion of belonging to the underground movement of the Freedom Fighters of Israel. He remained in custody in Latrun for two years until he escaped and continued to work in the underground movement.

 

2. The petitioner alleged further in his affidavit that after the establishment of the State he decided to return to teaching and applied to a number of institutions for a post. He was confronted with difficulties the root of which - as later because evident to him - was to be found in the fact that the Department of Education refused to confirm his employment as a teacher. The petitioner communicated with the third respondent, the principal of the Reali Montefiore School in Tel Aviv, in order to secure employment for the 1951 school year, but the principal made the employment of the petitioner as a teacher conditional upon confirmation by the Department of Education. It would appear that the petitioner started working before receipt of the confirmation, bat his work was terminated on September 17, 1950, when a letter was handed to him in which the principal of the school informed him that in accordance with a letter which the principal had received from the Inspector of the Department of Education, the petitioner was not to be accepted as a teacher in the institution. The contents of the Inspector's letter, a copy of which was attached, were as follows : "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." The petitioner approached the Ministers of Defence and Education and demanded an explanation of why they had disqualified him and opposed his appointment as a teacher. He received a reply from the Minister of Defence in the following terms :- "The Ministry of Defence objected to your. appointment as a teacher because, in your book and your newspaper, you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable." This reply was annexed to the petition in which the correctness of its contents was denied, and I should point out that no evidence as to the matters stated in this reply was placed before the court either by the petitioner or the respondents. The petitioner received no reply from the Minister of Education. That respondent states in his affidavit that no letter was sent to him by the petitioner and that there was nothing, therefore, which called for a reply on his part.

 

3. The petitioner applied to this court for the issue of an order against the Minister of Defence and the Director of the Department of Education to appear and show cause why they should not withdraw their opposition to the acceptance of the petitioner as a teacher in the Montefiore School; and also for an order against the principal of the school that he appear and show cause why he should not allow the petitioner to return to his teaching duties. The court issued an order nisi against the Director of the Department of Education alone, and he filed an affidavit explaining his attitude. He emphasized that the Montefiore School is a private school, that he has no authority under the law in regard to the acceptance of teachers in that school, that he has no authority in regard to the dismissal of teachers save that conferred upon him by s. 8(3) of the Education Ordinance, and that no such authority was exercised by him in this case. In addition to this, the respondent disclosed in his affidavit that he had in fact approached all secondary schools (including also private schools), and had requested them not to employ teachers save with the consent of the Inspector of Secondary Schools. The relevant paragraph is as follows :-

 

            "(f) In a circular which I sent to the principals of secondary schools in the country on June 13, 1950, I requested them not to employ teachers in their schools, save with the consent of the Inspector of Secondary Schools. My intention, as the official responsible for the organization of education in the State, was to maintain an appropriate professional standard and to ensure that secondary education is suited to the requirements of the State."

           

            The affidavit goes on to state that the respondent "is under no legal or other duty to answer the question of the Reali Montefiore School relating to the petitioner with a reply which is dishonest; and that in view of the decision of the Minister of Defence that the petitioner is unsuitable to act as a teacher, he, the Director of the Department of Education, as the one responsible for the education organization in the State, is obliged to do all in his power to prevent the petitioner from being accepted as a teacher in the school in question, or in any other school in the State.

           

4. The opposition of the respondent to the order sought is in fact based, therefore, upon two submissions: first, that there is no duty upon him to give his consent or confirmation to the acceptance of the petitioner as a teacher in a private school, and that he cannot, therefore, be compelled to give such consent or confirmation or to withdraw his opposition to the employment of the petitioner as a teacher; and, secondly, that if it should be said that there is a duty upon whose fulfillment this court will insist, then the respondent has discharged his duty by relying upon the decision of the Minister of Defence disqualifying the petitioner from being a teacher. As far as the first submission is concerned, we must investigate the powers of the Director of the Department of Education in regard to schools and teachers in the State.

 

5. The Education Ordinance draws a fundamental distinction between public and assisted schools on the one hand and private schools on the other hand. Every school (other than a government school) whether it be a public, assisted, or private school, must be registered with the Department of Education (s. 4), and wide powers are conferred upon the Government in regard to the supervision of sanitary conditions obtaining in all schools without distinction. In this regard it is provided by the Education Rules that the registration of a school shall be valid only in respect of the premises specified in the application for registration, and that if alterations are made in the premises which adversely affect these from the point of view of health, the validity of the registration will expire. A public school, however, which - as I have said - also requires registration, shall not be registered or continue to be registered unless the conditions laid down in rule 9 of the Education Rules are fulfilled, and these are the rules which deal with the educational aspect of the institution. It is desirable to point in particular to sub-rule (h) of rule 9, in which it is specifically laid down that no person shall be appointed as a teacher who is unacceptable to the Director of Education. s. 7(1) of the Ordinance empowers the authorities to visit any school - other than a non-assisted school established or maintained by a religious association - and to demand information from the principal, in regard to the tuition of the pupils, the management of the school, and the names and qualifications of the teachers. The same power is conferred upon the Director of Education or his deputy in respect of any non-assisted school established or maintained by a religious association, but only after giving prior notice, nor may the Director or Deputy-Director demand any change in the curriculum or the internal administration of such school (s. 7(2)) From this, perhaps, it may positively be inferred that in respect of every other school, which is not a non-assisted school established or maintained by a religious association, the Director is entitled to interfere with the curriculum  and internal administration. Attention must also be drawn to the proviso to s. 7(2), which provides that nothing in that subsection shall prevent the High Commissioner from exercising such supervision over any school as may be required for the maintenance of public order and good government.

 

6. Greater importance in the matter before us attaches to s. 8. It is provided, in sub-section 1 of that section, that no person shall act as a teacher in any school unless be has registered with the Director of Education. Sub-section 2 provides that no person may teach in a public or assisted school who does not possess a licence to teach issued to him by the Director. Rules 10 to 31 provide the method by which a person may apply for registration and for a licence as a teacher, the classes of licence and the conditions of their issue, and it must be pointed out that registration is not a matter within the discretion of the Director, whatever may be his powers in regard to the issue of a licence. These, then, are the provisions of the law relating to the acceptance of a person as a teacher in a school and we see that there is no restriction whatsoever on a person being accepted as a teacher in a private school (save that he requires to be registered - a condition which, it appears, has been fulfilled by the petitioner). There is no need for the Director to give his consent or confirmation to the acceptance of a person as a teacher in a private school, while in regard to the dismissal of teachers, sub-section 3 of s. 8 empowers the Director to require the dismissal "of any teacher, whether in a public or assisted school or in a non-assisted school, who has been convicted of a criminal offence involving moral turpitude or who is shown to the satisfaction of the High Commissioner, after judicial enquiry . . . to have imparted teaching of a seditious, disloyal, or immoral character." The Law here lays down that the power to require dismissal exists in respect of teachers in all schools including also private schools. Similarly the power conferred upon the High Commissioner under s. 9 of the Ordinance to order the closure of a school is general in character and applies to every kind of school.

 

7. The practical effect of what I have said is that the Director of the Department of Education had no legal power to consent to or to oppose the acceptance of the petitioner as a teacher in the school of the third respondent. What is more, everything that was done by the Director of the Department of Education as described in paragraph (f) of his affidavit, that is to say, his approach to the principals of secondary schools not to employ teachers save with the consent of the Inspector, has no legal basis. We have seen that the Education Ordinance confers upon the authorities the power of supervision over all types of schools, and it describes how that supervision is to be exercised : the school must be registered, it is possible to impose upon the school sanitary conditions, it is permissible to demand information and it is possible under certain conditions to require the dismissal of teachers and the closure of a school. It is not, however, provided in the Ordinance that a teacher may not be accepted in a private school save with the consent of the Director of the Department of Education. The Law has not authorised the Director, either expressly or by implication, to supervise a private school in this way.

 

8. I do not think that every administrative act which is not provided for by law must of necessity be fundamentally invalid. As is known, there is in our day - and not only in this country - an ever-growing body of what is sometimes called "administrative quasi-law" (see Allen in his well-known work "Law and Orders", at page 155, and an article entitled "Administrative Quasi-Legislation," by Megarry in 60 L.Q.R. p. 255, and see also p. 218 ibid.). This is a body of rules which the executive authority and not the legislature lays down for itself, and according to which it acts not only in its internal arrangements, but also in its relations with the citizens. The influence of office administration which is based not on the provisions of the law but upon rules circulated by the authorities among its officials by means of circulars, is today considerable. This is a phenomenon in the life of a modern State which many regard with trepidation. (See, inter alia, Allen, ibid. and also Lord Hewart in his book. "The New Despotism"). Where the legislature has empowered the executive authority to frame subsidiary legislation within defined limits, its actions should of course not be too closely scrutinised, so long as that authority does not exceed its powers. It sometimes happens, however, that such administrative rules are framed to regulate a matter upon which the legislature has expressed no opinion, a matter within a vacuum from the legal point of view. In such a case it is appropriate to enquire as to the legal validity of such rules and provisions which do not derive from the authority of the law itself. However, this is neither the place nor the time to expatiate upon this elusive problem, since even a person who is prepared to regard this development of a body of administrative rules as a healthy and natural development, and would not hasten to invalidate it as something fundamentally bad -"administrative lawlessness", as Lord Hewart has called it - even such a person will admit that such rules have no right to exist if they exceed the limits which the legislature has conferred upon the executive authority in a particular matter. It is simply a case of an excess of authority if the authority arrogates to itself powers which are wider than those which are defined by law, and this is also true where the powers, which the authority assumes, contradict those which are conferred upon it by law. That is in fact the situation in this case. The legislature introduced a distinction, and laid down that private schools are not the same as public or assisted schools insofar as the acceptance of teachers is concerned. If this be so, the second respondent was not entitled to assume a power of which he had been deprived by law, and to lay down a rule that a teacher in a private school also may not be accepted save with the confirmation of the Inspector of the Department. It is clear that the court will not approve an administrative rule which is inconsistent with the law.

 

9. As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only "requested" them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a "request" such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident schools would tend to yield to a "request" of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice - that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. In this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools.

 

10. The question arises whether we are able to grant relief to the petitioner. To the extent that I have held in this judgment - as a result of the above reasoning - that the second respondent exceeded his authority it is possible that that itself constitutes some remedy for the petitioner. The petitioner, however, asks for an order against the respondent that he withdraw his opposition to accepting the petitioner as a teacher in the Montefiore School. In regard to this it is first necessary to examine what in fact was the respondent's unlawful act in regard to the petitioner. In this respect there is in my opinion a contradiction between the version of the petitioner and that of the respondent. We must guard against a certain ambiguity in the expression "opposition". If the intention is that the respondent is not happy about the appointment of the petitioner, there is indeed no doubt that he "opposes" the petitioner's appointment in that sense. It is clear, however, that this court has no interest in the mental reservations of the respondent but only in his acts or omissions. And if the intention is to refer to a particular act, it is my opinion that the respondent did not "oppose" the appointment of the petitioner in this sense. He did not write to the principal of the school that he, the Director of the Department of Education, opposes, but that the Ministry of Defence opposes. That means that he, the respondent, refused to give his consent upon the basis of this opposition by the Ministry of Defence. It is true that the petitioner stated in paragraph 12 of his affidavit that counsel for the second respondent gave "a verbal instruction that the employment of the petitioner should be discontinued within 24 hours", but the second respondent has denied this version. It seems to me that the letters annexed to the petitioner's affidavit - that in which the Inspector informed the principal of the school of the opposition of the Ministry of Defence, and that in which the principal of the school informed the petitioner that he could not be accepted as a teacher - supports the version of the respondent, namely, that the principals of schools acceded to his request not to employ teachers save with the Inspector's consent and that in this case no such consent was given. If that is so, the petitioner can advance no contention against the respondent in regard to some positive act relating to himself, that is to say, opposition to his acceptance as a teacher, and for that reason he cannot seek the "withdrawal of his opposition". His complaint concerns a passive act, namely, the failure to give the consent that was required by the petitioner in order that the principal of the school would be prepared to accept him.

 

11. The court was not asked to compel the respondent to give the consent referred to, and even had it been asked to do so, I have no doubt that the court would have had to refuse such au application. As I have said, the second respondent exceeded his authority in requesting the principals of schools not to employ teachers save with the consent of the Inspector. If that is so, this court will not compel the respondent to do the very act which exceeds his authority, that is to say, to give his consent (or to instruct the Inspector to give his consent). The court, therefore, will also not interfere with the grounds which induced the respondent to refuse his consent in this instance. Authority for this proposition - if such be needed - way be found in R. v. Barnstaple Justices, (6). In that case the Justices were authorised to issue a licence for the use of buildings as cinemas- They were asked to give their decision in regard to a building which had not yet been built, and they considered the application and refused it. It was held by the court that no order of mandamus or of certiorari should be made against them since they had in any event no power to deal with an application for the issue of a licence before the building had been erected. The position in our case is similar actually to that which obtained in the case of Matossian v. Bergman, (4). In that case too an official exceeded his authority, but in order to remedy the situation and restore the previous position it would have been necessary for the official to perform an act which the law did not empower him to do. The unlawful act had already been done. The court considered the position after the event, and found no way to issue an order to the official in order to remedy the situation that had arisen. The unlawful act in the case before as is the approach in the circular to the principals of the schools. The court is now asked to order the respondent to withdraw its opposition to the petitioner. I have already said that the question in this case is in fact not one of opposition, but of the absence of consent. It is clear that the court cannot compel the respondent to restore the position to what it was by giving his consent, since he has no power to consent. In regard to the "withdrawal of opposition", it is no doubt correct that where an official is unable himself to set aside an unlawful act on his part, the court will be competent to set aside such act (Bouchman and Shoulyan v. Bergman, (5). In the present case, however, there was no act on the part of the respondent which can be regarded as "opposition", so that even if an order setting aside such opposition were to be made, it would not operate as a consent, the giving of which is made a condition - albeit unlawfully - to the petitioner being accepted as a teacher. It seems to me that in these circumstances this court has no alternative but to discharge the order nisi.

 

OLSHAN J. The decision of the court is that the interference by the second respondent in the employment of the petitioner as a teacher in the institution of the third respondent was unauthorised in law, and that the second respondent must refrain from interfering in this matter. It is decided by a majority to make a final order to this effect.

 

Order nisi made absolute against the second respondent.

Judgment given on February 8, 1951.

 


[1]) see infra p. 22.

1) The full name was "Fighters for the Freedom of Israel"

Noar KeHalacha v. Ministry of Education

Case/docket number: 
HCJ 1067/08
Date Decided: 
Thursday, August 6, 2009
Decision Type: 
Original
Abstract: 

Facts: The Beit Yaakov Girls’ School in Immanuel is a recognized unofficial school that operates under a licence from the Ministry of Education and is subsidized by the state. In 2007 changes were made to the school, and a new ‘Hassidic track’ was introduced alongside the ‘general track.’ These tracks were completely separate from one another, and the new ‘Hassidic track’ was housed in a separate wing of the school, with a separate playground, a separate teachers’ room, a wall separating the two tracks and a different uniform from the one worn by girls in the ‘general track.’ Thus the school was effectively split into two schools.

 

An investigation carried out on behalf of the third respondent found that 73% of the girls in the new school (the ‘Hassidic track’) were of Ashkenazi origin (i.e., their families came from northern European countries), whereas only 27% were of Oriental or Sephardic origin (i.e., their families came from Middle-Eastern or North African countries). In the old school (the ‘general track’) only 23% of the girls were of Ashkenazi origin. Nonetheless, the investigation found no evidence that there were any girls who were refused admission into the Hassidic track.

 

The third respondent ordered the school to remove the physical separations between the two tracks and to eliminate the separate uniforms. However the school did not comply.

 

Held: The physical separation and differentiation of the two tracks was discriminatory and the school was ordered to remove the physical barriers and eliminate any indication of discrimination in the school. The Ministry of Education was ordered to ensure that the order was complied with, failing which, it should consider cancelling the school’s licence and subsidy.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

CJ 1067/08

Noar KeHalacha Association

and another

v.

1.     Ministry of Education

2.     Immanuel Local Council

3.     Independent Education Centre

 

 

The Supreme Court sitting as the High Court of Justice

[6 August 2009]

Before Justices E.E. Levy, E. Arbel, H. Melcer

 

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

 

Facts: The Beit Yaakov Girls’ School in Immanuel is a recognized unofficial school that operates under a licence from the Ministry of Education and is subsidized by the state. In 2007 changes were made to the school, and a new ‘Hassidic track’ was introduced alongside the ‘general track.’ These tracks were completely separate from one another, and the new ‘Hassidic track’ was housed in a separate wing of the school, with a separate playground, a separate teachers’ room, a wall separating the two tracks and a different uniform from the one worn by girls in the ‘general track.’ Thus the school was effectively split into two schools.

An investigation carried out on behalf of the third respondent found that 73% of the girls in the new school (the ‘Hassidic track’) were of Ashkenazi origin (i.e., their families came from northern European countries), whereas only 27% were of Oriental or Sephardic origin (i.e., their families came from Middle-Eastern or North African countries). In the old school (the ‘general track’) only 23% of the girls were of Ashkenazi origin. Nonetheless, the investigation found no evidence that there were any girls who were refused admission into the Hassidic track.

The third respondent ordered the school to remove the physical separations between the two tracks and to eliminate the separate uniforms. However the school did not comply.

 

Held: The physical separation and differentiation of the two tracks was discriminatory and the school was ordered to remove the physical barriers and eliminate any indication of discrimination in the school. The Ministry of Education was ordered to ensure that the order was complied with, failing which, it should consider cancelling the school’s licence and subsidy.

 

Petition granted.

 

Legislation cited:

Basic Law: Human Dignity and Liberty.

Budget Principles Law, 5745-1985, ss. 3A(i), 3A(j).

Compulsory Education Law, 5709-1949, ss. 1, 7.

Special Cultural Schools Law, 5768-2008.

State Education (Recognized Schools) Regulations, 5714-1953, r. 9.

State Education Law, 5713-1953, ss. 1(b), 2, 3, 11.

Student Rights Law, 5761-2000, ss. 1, 3, 5, 16(a), 16(b).

Supervision of Schools Law, 5729-1969, ss. 3, 12(a), 15, 28, 30, 31, 32(a1).

 

Israeli Supreme Court cases cited:

[1]        HCJ 421/77 Nir v. Beer-Yaakov Local Council [1978] IsrSC 32(2) 253.

[2]        HCJ 4363/00 Upper Poria Board v. Minister of Education [2002] IsrSC 56(4) 203.

[3]        HCJ 4805/07 Israel Religious Action Centre v. Ministry of Education (unreported decision of 27 July 2008).

[4]        FH 16/61 Registrar of Companies v. Kardosh [1962] IsrSC 16(2) 1209; IsrSJ 4 32.

[5]        HCJ 10296/02 Secondary School Teachers Organization v. Minister of Education [2005] IsrSC 59(3) 224.

[6]        HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [1996] IsrSC 50(3) 2.

[7]        HCJ 2599/00 Yated v. Ministry of Education [2002] IsrSC 56(5) 834; [2002-3] IsrLR 57.

[8]        HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [2006] (1) IsrLR 105.

[9]        HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

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

[11]     HCJ 8437/99 Habad Kindergarten Network in the Holy Land v. Minister of Education [2000] IsrSC 54(3) 69.

[12]     HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2005] (1) IsrLR 340.

[13]     HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[14]     HCJ 114/78 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

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

[16]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (unreported).

[17]     HCJ 6698/95 Kadan v. Israel Land Administration [2000] IsrSC 54(1) 258.

[18]     HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[19]     HCJ 727/00 Committee of Heads of Arab Local Councils in Israel v. Minister of Building and Housing [2002] IsrSC 56(2) 79.

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

[21]     HCJ 11020/05 Panim For Jewish Renaissance v. Minister of Education, Culture and Sport (unreported decision of 16 July 2006).

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

[23]     HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 358; [2004] IsrLR 1.

[24]     FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[25]     HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner of Police [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[26]     HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[27]     HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[28]     HCJ 4298/93 Jabarin v. Minister of Education [1994] IsrSC 48(5) 199.

[29]     HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

[30]     HCJ 240/98 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [1998] IsrSC 52(5) 167.

[31]     HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[32]     HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[33]     HCJ 10203/03 National Assembly Ltd v. Attorney-General (unreported decision of 20 August 2008).

[34]     HCJ 200/83 Wathad v. Minister of Finance [1984] IsrSC 38(3) 113.

[35]     HCJ 1/98 Cabel v. Prime Minister of Israel [1999] IsrSC 53(2) 241.

[36]     HCJ 3261/93 Manning v. Minister of Justice [1993] IsrSC 47(3) 282.

[37]     HCJ 10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53.

[38]     HCJ 10808/04 Movement for Quality Government in Israel v. Minister of Education and Culture (unreported decision of 11 July 2006).

 

Israeli District Court cases cited:

[39]     AP (Jer) 1320/03 Alkaslasi v. Upper Beitar Municipality [2003] IsrDC 641.

 

American cases cited:

[40]     Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[41]     Wisconsin v. Yoder, 406 U.S. 205 (1972).

[42]     Prince v. Massachusetts, 321 U.S. 158 (1944).

 

Jewish law sources cited:

[43]     Rabbi Ovadia Yosef, Responsa Yehaveh Daat 4, 4 and 5, 6; Yabia Omer 2, 6.

[44]     Rabbi Tzvi Hirsch ben Yaakov Ashkenazi, Responsa Hacham Tzvi, 33.

[45]     Exodus, 19, 3.

[46]     Midrash Sechel Tov (Buber edition), Exodus, Introduction.

 

For the petitioners — A. HaCohen, Y. Avraham.

For the first respondent — S. Shmueli.

For the second respondent — O. Barchash-Rubowitz, R. Arbiv.

For the third respondent — M. Janovsky.

 

 

JUDGMENT

 

 

Justice E.E. Levy

Background

1.    The Beit Yaakov Girls Primary School in the town of Immanuel is a ‘recognized unofficial’ institution for Jewish religious education. The Independent Education Centre, which is the third respondent in the petition, is the organization that operates and manages the school. The first respondent, the Ministry of Education, is the body that supervises, on behalf of the state, the functioning and activity of the third respondent and its educational institutions.

2.    At the end of the 5767 academic year in 2007, it was decided to make several changes to the school’s building and educational programme, and in practice an additional school was erected alongside the existing school. In the course of these changes, the school building was split into two by erecting partitions, and separate entrances were made. The playground was also divided into two, by means of a cloth curtain and a separation fence. The teachers’ room was also made separate. A new wing was built on the third floor of the school building, solely for the use of the pupils of the new school. There are claims that the school hours were changed so that the students’ breaks in the two schools would not overlap. Moreover, the school uniform, which has been worn at the school since it was founded, was changed in order to distinguish the students of the new school from their counterparts in the old one.

While the parties dispute the purpose of the aforesaid changes, no one can deny their outcome – a separation between most of the girls whose families are of Ashkenazi origin and their counterparts whose families are of Sephardic origin. With regard to the factors that led to the aforesaid change, some of the inhabitants of the town believe that the aforesaid separation was made because of a continuing tension between the Ashkenazi population and the Sephardic population in the town, and some feel that the school, by taking this action, has created an ethnic split, in order to discriminate against and victimize the Sephardic students and their parents.

3.    As a result, after several telephone calls, counsel for the parents of some of the Sephardic students wrote on 12 Elul 5767 (26 August 2007) to the Ministry of Education, asking it to exercise its powers to prevent the continued discrimination against the students. When the Ministry of Education did not answer her letter, counsel for the parents wrote a second time with a request to remedy the situation and to deal with the persons responsible. The petitioners, through their counsel, also wrote to the Ministry of Education with a request for clarifications regarding the separation process that was introduced in the school, as well as with regard to the scope of supervision of this process.

4.    Following this, the director-general of the Ministry of Education, Mrs Shlomit Amichai, wrote to the Independent Education Centre with a request to cancel the separation in the school and to act to return matters to the original position. Moreover, Mrs Amichai stipulated a date by which her instructions should be carried out, and added that if the Independent Education Centre did not comply with the aforesaid date, she would consider cancelling the school’s licence. When the date passed, Mrs Amichai Advocate Mordechai Bas, who had held office in the past as legal adviser to the State Comptroller’s Office, to examine the complaints made against the management of the school. Advocate Bas especially examined whether on the basis of a licence to run one institution, the school was running two separate schools, and whether the separation between the students as described above was the result of ethic discrimination.

 In the report describing the examination that he made, Advocate Bas described the demographic changes that had occurred in Immanuel — including the influx into the town of new inhabitants, most of whom are of Sephardic origin — and he surveyed the effects of these developments on the town’s population in general, and on the Beit Yaakov Girls School in particular. He found that the initiative to separate the school’s students came from parents belonging to a specific group within the town, most of whom were parents of students of Ashkenazi origin. Advocate Bas added that many Ashkenazi families that follow the Hassidic way of life did not want to expose their daughters to the modern way of life, which, in their opinion, includes unbecoming speech and conduct that is inconsistent with the strict laws of modesty that they follow. Therefore, Hassidic parents requested that their daughters should be separated from their counterparts, because of the concern that they would be exposed to content that in their opinion is unbecoming. When the parents approached the Independent Education Centre, it insisted that the segregationist group should remain within the existing school, in a new ‘Hassidic track’ that it would open alongside the ‘general track,’ rather than setting up a separate school. The Independent Education Centre also insisted, according to Advocate Bas’s report, that the two tracks should be under joint management, and that the pedagogic environment — including the teachers’ room, the study programme, the hours of study and the times of the breaks — should also be the same for all the students of the school. However, despite the instructions of the Independent Education Centre, Advocate Bas’s examination of what was being done in the school during the 5768 (2007-2008) academic year found, as I have already described, a different reality: the school was split into two, and this split found expression, inter alia, in the uniform that was adopted, the management of the school and the segregation that was introduced in the playground and even the teachers’ room. It should be emphasized that despite Advocate Bas’s finding that the split was made without the approval of the Independent Education Centre and in defiance of its instructions, the Independent Education Centre confirmed in a letter to the Ministry of Education on 11 Tishrei 5768 (23 September 2007) that it knew of the process of segregation and had not taken any practical steps in order to stop it (respondents’ exhibit 2, at page 8).

With regard to the question of the motive for the segregation between the students, Advocate Bas said that, to the best of his understanding, this was a result of the level of strictness of the members of the Hassidic community in conducting a religious lifestyle as compared with that of the members of the Sephardic community in the town. Advocate Bas summarized his findings as follows:

‘Indeed, the Beit Yaakov Girls’ School in Immanuel has de facto been split, improperly and contrary to the provisions of the law and proper administrative practice, into two schools, but this split, with all of its negative aspects, was not done with an intention of discriminating against students because of their ethnic background and in practice there is no such discrimination. I arrived at this conclusion even though I am aware of the quantitative aspect of the ethnic separation between the two schools, i.e., that in the old school the percentage of girls who are from Ashkenazi families is approximately 23%, whereas in the new school they make up approximately 73%.

My conclusion that the school has indeed been divided into two separate schools, and has not merely introduced a new ‘Hassidic’ track, as the Independent Education Centre claims, is based on the situation, as I saw it when I visited the school, and on what I heard from the headmistress of the old school.

My additional conclusion that this split is not based on ethnic discrimination is based on documents that I saw, and on the impression that I formed after speaking to parents in both schools and the complainants when I met with them. I gave particular weight to the claim of the Independent Education Centre, the headmistress of the old school and the parents who initiated the split, that no parent who wanted or wants to register their daughters in the new school, and who was or is prepared to accept the conditions for doing so, has been refused. Not only was there no evidence to refute this claim, but even the complainants did not deny that it was factually true. If there is no refusal, where is the discrimination?’ (respondents’ exhibit 2, at page 1).

In view of all of the aforesaid, the sole recommendation of Advocate Bass was that the Ministry of Education should take enforcement action against the initiators and perpetrators of the split, but solely for a breach of the duties of reporting a split of a school.

5.    While this was happening, the petitioners filed their petition in this court. An order nisi was issued on 11 Tammuz 5768 (14 July 2008), and this was amended on 12 Tammuz 5768 (15 July 2008). This ordered the respondents to show cause why the Ministry of Education should not exercise real and effective supervision over the schools for which the Independent Education Centre was responsible, and why it should not make the support given to the institutions established by it or associated with it conditional upon compliance with the provisions of the law concerning the prohibition of discrimination. In addition, we ordered the respondents to show cause why it should not be held that ‘all of the students currently attending the Beit Yaakov School in Immanuel are entitled to continue to attend the school as one institution, and not subject to a screening policy that was mainly based on an improper ethnic segregation,’ as stated in the order.

The position of the third respondent — the Independent Education Centre

6.    In a memorandum that was attached to its preliminary reply, the Independent Education Centre outlined the events that preceded the split of the school. It was explained that in view of the successful attempt in the past, when two educational institutions were set up for boys in the town, it was the inhabitants of Immanuel, from every sector, that asked for an additional school to be set up for girls, despite the contrary opinion of the Independent Education Centre and the headmistress of the original school. According to the Independent Education Centre, it was the parents of the Sephardic students who promoted the idea of the new school, and even formed a team ‘whose purpose was to assist in setting up the Sephardic school. The team met several times, but after a while the representatives of the parents of the Oriental communities announced that for various reasons they were not capable of setting up the additional school’ (p. 4 of the memorandum). The attempt to set up the new school was ultimately successful because of the efforts of the Hassidic community. The Independent Education Centre goes on to say in its reply:

‘The founding of the school was well-known in the town, and following this, parents from the boys’ school and other parents who knew of the success of the boys’ school did indeed approach the school and ask that their daughters should be given the strictly Orthodox education and lifestyle and spiritual guidance that would be provided in it.

The result was that girls from all ethnic backgrounds and groups, who wish to be educated with the lifestyle and spiritual guidance of the school, were registered. In practice more than 35% of the students currently studying in the school are of Oriental origin’ (ibid., at p. 5).

 Notwithstanding, already on the date of filing the preliminary reply, the headmistress of the school, Mrs Stern, was ‘in practice the headmistress of both wings of the school, and there was complete cooperation in the operation of the two wings, including joint meetings of the staff, and there is no separation between the wings’ (ibid.).

Following Advocate Bas’s examination of the matter, the Independent Education Centre changed its position, and in its written reply of 19 August 2008, it claimed that a new school had not been established within the framework of the existing school, but only a new track — a ‘Hassidic track.’ It was also alleged that the fact that the Ministry of Education appointed a special examiner to examine the allegations of discrimination showed that the school was still being supervised properly. Finally the Independent Education Centre said that in view of the uproar in the town, it was essential that the Ministry of Education should recognize the two wings in the school, but it undertook that apart from the physical division between the two wings, all additional indications of separation would be removed and steps would be taken to return matters to their original position, including the use of a joint teaching staff, identical study programs and books, identical uniform and joint breaks. Thus all that would distinguish the two wings would be the strictly Orthodox spirit that determined the customs and lifestyle according to which each wing was supposed to conduct itself (ibid., at p. 6).

The position of the first respondent — the Ministry of Education

In a supplementary statement, the Ministry of Education clarified that it accepted the position of the external examiner, Advocate Bas, with regard to the failure of the school to comply with the reporting duties that bound it, including the split of the institution, and it added that ‘it [the breach of the reporting duty] is capable of justifying the cancellation of the existing licence of the Beit Yaakov school’ (p. 4 of the supplementary statement of 7 Tammuz 5768 (10 July 2008)). The Ministry of Education added that ‘the establishment and operation of the new separate school were done in a flagrant violation of the law, complete disregard for the provisions of the Supervision of Schools Law, a violation of the guidelines of the Ministry of Education and a serious infraction of the terms of the existing school’s licence’ (ibid.).

With regard to the issue of ethnic discrimination, the Ministry of Education thought that in the absence of clear criteria with regard to the principles underlying the division of the school, the burden of allaying the prima facie concern that the basis for separating the students was ethnic discrimination rested with the Independent Education Centre, especially in view of the unequal numerical division in the number of the students of the different ethnic backgrounds in the two wings, as discussed in the report of Advocate Bas.

The Ministry of Education went on to clarify that Mrs Amichai wrote once again to the Independent Education Centre with a demand that it remove any indication of a segregation between the parts of the school and that it unite the management both from an organizational viewpoint and with regard to staff. The Independent Education Centre was also asked to send the Ministry of Education, as required by law, notices regarding the registration dates for the academic year for the whole target population, and in so far as it was interested in setting up a separate educational track, it should send a plan setting out the characteristics of the new track, with the criteria for participation and admission requirements. It was clarified that if the Independent Education Centre did not comply with these conditions, it would consider the possibility of cancelling the school’s licence and reducing the amount of economic support given to it.

The agreement reached between the respondents

7.    When the Independent Education Centre refused to comply with the instructions of the Ministry of Education, after lengthy discussions between the persons in charge of the two organizations and their counsel, the representatives of the Independent Education Centre were summoned to a hearing before Mrs Amichai and the representatives of the ministry. During the hearing it was agreed between the respondents that the school would have two tracks, a Hassidic one and a general one, which would be approved by the Ministry of Education, and the students would have a right to choose between them when admitted to the school, on condition that they committed themselves to the religious way of life practised in the track that they chose. The Independent Education Centre even sent a proposed draft set of regulations for the Hassidic track for the approval of the Ministry of Education. This, together with an appendix that was intended to be read only by the parents of the students, contained the following clauses:

‘(a) The prayers and the studies in the school are conducted in the holy language (Ashkenazi pronunciation). In order to make it easier for girls who are not accustomed to pray at home with this pronunciation, the parents will ensure that even at home the students will become accustomed to pray as they do at school.

(b) The spiritual authority for the Hassidic track will be Rabbi Barlev, who will guide the students of the school in matters of conduct and Jewish law. The parents undertake not to allow a situation in which there will be a conflict between the spiritual authority practised in their homes and the one adopted by the school.

(c) For reasons of modesty, the girls will not be allowed to ride bicycles outside the home.

(d) The parents shall ensure that the friends that their daughters meet in the afternoon will only be from homes that accord with the spirit of “Beit Yaakov” education in every respect.

(e) The parents shall act with regard to clothing in accordance with the determination of the Rabbinical Committee on Matters of Clothing at the Rabbinical Court of Rabbi Vozner.

(f) No radio shall be played in the home at all. No computer that can play films of any kind shall be allowed in the home. Obviously no connection to the Internet shall be allowed.

(g) The girls should not be taken to hotels or any kind of holiday resorts. They should not visit the homes of relatives or friends who do not observe the Torah and the commandments.’

This proposed set of regulations was presented to us in the Ministry of Education’s reply of 20 Av 5768 (21 August 2008). In view of the comments of the court, and in view of Mrs Amichai’s letter in which she made it clear that she did not accept the proposed set of regulations, the Independent Education Centre submitted a revised version. The revised version omitted the provision that the students should pray with Ashkenazi pronunciation, and the duty to dress ‘in accordance with the decision of Rabbi Vozner’ — a rabbi who adopts a particularly strict approach to the prohibitions of immodesty — was replaced with the decision of the ‘committee of rabbis whose authority is binding in independent education institutions for Beit Yaakov schools.’ In its supplementary statement, the Ministry of Education clarified that it was satisfied with the wording of the amended regulations, and it thereby gave its approval to their being two tracks in the school.

 However, a later inspection conducted by the Ministry of Education showed that the reality of the segregation continued, and therefore Mrs Amichai once again demanded, for the third time, that the Independent Education Centre should remove any physical separation in the school, take action to combine the teachers’ room, and stop any act that involved any discrimination against any sector of the population. In addition, the Ministry of Education emphasized that if there was any claim of discrimination in the procedure of registration for a particular track, a student who was refused or encountered a difficulty in being admitted was entitled to write to the appeals committee, which would examine the claims of discrimination on their merits. Following Mrs Amichai’s demands, the Independent Education Centre once again demanded that the school should remove any physical barrier — including the plaster wall — that separated the different wings of the school. The Independent Education Centre also demanded that the teachers’ room should be combined, the use of a standard uniform by all of the students should be reintroduced and any other action that distinguished between students in the different tracks should be stopped.

The petitioners’ arguments

8.    The petitioners stand by their claim of entrenched discrimination that continues to characterize the school. This discrimination is not affected by the adoption of one set of regulations or another. It was argued that the amended regulations are merely a series of linguistic changes that disguise the flagrant ethnic preference with hollow statements, when in practice there is no change in the situation of the girls in the school. Their physical and ideological segregation continues, and thus, inter alia, the standard uniform worn in the two tracks is significantly different; the policy whereby the school gates and playgrounds are separate still exists, and the plaster wall that was built following the segregation, which separates the two parts of the school, has not been removed. The petitioners further argued that they are required to pay an additional monthly payment in order that their daughters may study in the Hassidic track, and bureaucratic difficulties are placed in the way of Sephardic parents who wish to register their daughters in that track. It was emphasized that despite the repeated demands of the respondents to stop the segregation, the school has refused to return the school to its original position in a manner acceptable to everyone. Finally, the petitioners emphasize that the segregation and its characteristics have left the Sephardic students and their parents feeling ostracized and humiliated.

Deliberations

The normative framework

9.    It is a matter of first principles that children and teenagers in the State of Israel are entitled to free education, by virtue of section 7 of the Compulsory Education Law, 5709-1949:

‘Duty to provide free compulsory education

7.  (a) The state has a duty to provide compulsory education under this law.

     (b) The availability of official education institutions for providing compulsory education under this law for children and teenagers who live within the borders of a certain local education authority, is the joint responsibility of the state and that local education authority.’

At the same time, every parent has a duty to ensure his children are educated in accordance with the Compulsory Education Law, and the state, together with the local authorities, has a duty to allocate resources for the existence, management and supervision of the education system (HCJ 421/77 Nir v. Beer-Yaakov Local Council [1], at p. 263; HCJ 4363/00 Upper Poria Board v. Minister of Education [2], at p. 214; HCJ 4805/07 Israel Religious Action Centre v. Ministry of Education [3], at para. 53 of the opinion of Justice Procaccia).

Education services in Israel are provided today through official schools — i.e., state education — and in addition, ‘alongside the official schools, there are recognized schools that are not run by the state. These schools seek to give their students an education that is consistent with the ethical outlooks that the schools is seeking to foster’ (Israel Religious Action Centre v. Ministry of Education [3], at para. 1). These are the ‘recognized unofficial schools’ (s. 1(b) of the State Education Law, 5713-1953), which, together with the ‘exempt schools’ that are not relevant to this case, constitute the majority of the schools in Israel that are not state schools.

The state may recognize an unofficial school, provided that it operates under a licence (s. 3 of the Supervision of Schools Law, 5729-1969). Granting a licence depends upon compliance with certain conditions, including physical, pedagogic, financial and sanitary conditions. An institution that is given a licence receives a budget from the state in an amount determined by the Minister of Education, and it is subject to the supervision of the ministry (s. 11 of the State Education Law, and ss. 30 and 31 of the Supervision of Schools Law).

With regard to the scope of the Ministry of Education’s authority with regard to independent schools, this court has held in the past that ‘Recognized unofficial schools, even though they do not operate within the framework of state education, are subject to the supervision of the public authority in several respects’ (Upper Poria Board v. Minister of Education [2], at p. 216). For this purpose, the State Education (Recognized Schools) Regulations, 5714-1953, define the conditions in which a school will be declared a recognized unofficial school, and the Supervision of Schools Law regulates the ways in which they will be established, how they operate and how they are supervised. Thus, s. 28 of the Supervision of Schools Law provides:

‘Supervision of schools

28. (a) The Minister of Education and Culture may give a licence holder the instructions that are required, in the Minister’s opinion, in order to ensure that the education provided in the school will be based on the principles set out in section 2 of the State Education Law, 5713-1953.

 

     (b) The study programme, textbooks, other books, study aids and scholastic achievements of the school shall be subject to the supervision of the Minister of Education and Culture and shall conform to the general rules in force at that type of school.

 

     (c) The director-general shall approve, from time to time, in view of the type and character of the school, the tuition fees of the school and the arrangements for collecting them.

10. The court has recognized the authority of the Ministry of Education to determine policy in the different types of school. It has held that ‘the basic areas of supervision relate first and foremost to ensuring an education in the spirit of the ethical principles that characterize state education. The supervision also encompasses administrative matters, such as financial administration, including the amounts of tuition fees and how they are collected’ (Upper Poria Board v. Minister of Education [2], at p. 218). It follows that the supervisory powers of the Ministry of Education with regard to the activities of recognized unofficial schools are broad, and they are also accompanied by a sanction in the form of cancelling the licence for operating the school (s. 15 of the Supervision of Schools Law) and a reduction in, or even a end to, the contribution to the school’s budget, if the school refuses to comply with the instructions of the Ministry of Education (ibid. [2], at p. 216). Despite the aforesaid, ‘the manner of exercising the supervision and its scope are matters that are subject to the discretion of the public authority, which is responsible for determining priorities for all of its duties, in view of its resources’ (Israel Religious Action Centre v. Ministry of Education [3], at para. 81 of the opinion of Justice Procaccia). Indeed —

‘The administrative authority is given discretion so that it will have freedom to act in carrying out its wide variety of duties, the circumstances of which change from day to day and cannot be determined with precision in advance. This freedom allows the authority to consider the circumstances of each case that comes before it and to find the appropriate solution for it’ (FH 16/61 Registrar of Companies v. Kardosh [4], at p. 1215 {para. 5}).

12. In view of the independent character of the recognized unofficial schools and the scope of discretion given to them, this court has on several occasions been called upon to consider questions concerning recognized unofficial schools. Inter alia, it has considered the legality of a policy of charging payments for funding the schools as well as the relevance of the core curriculum to these schools (Upper Poria Board v. Minister of Education [2], at p. 215; HCJ 10296/02 Secondary School Teachers Organization v. Minister of Education [5], at p. 235; Israel Religious Action Centre v. Ministry of Education [3], at para. 62). Within this context, no one disputes that schools of every kind are bound by the basic rights of the individual. Basic rights constitute the cornerstone of our legal system and democracy, just as giving an education to the younger generation is a cornerstone for nurturing participation in Israeli society and passing on the values of the State of Israel (HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [6], at p. 24). These two foundations — basic rights and providing an education — lie at the heart of the right to education, which was enshrined in s. 3 of the Students’ Rights Law, 5761-2000, which provides that:

‘Right to education

3.  Every child and teenager in the State of Israel is entitled to education in accordance with the provisions of every law.

The court said of this in HCJ 2599/00 Yated v. Ministry of Education [7], at p. 841 {65-66}:

‘The right to education has recently been recognized as one of the basic human rights… The right to education has also been recognized as a basic right by case law… Notwithstanding, the question whether the right to education is included in the right to human dignity, within the meaning thereof in ss. 2 and 4 of the Basic Law: Human Dignity and Liberty, has not yet been decided.’

Justice Procaccia also stressed that:

‘The decisive importance of the right to education derives from the fact that education is essential for realizing human rights as an individual and for exhausting one’s personal autonomy; it develops his personality and abilities, and gives him the ability to compete and a possibility of realizing equal opportunities in the society in which he lives in childhood and adulthood’ (Israel Religious Action Centre v. Ministry of Education [3], at para. 51 of her opinion; see also Upper Poria Board v. Minister of Education [2], at p. 213; HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [8]).

This court has discussed in the past the many aspects of the right to education that are enshrined in case law, international law and Israeli legislation (see Yated v. Ministry of Education [7], at p. 841 {65-66}; Y. Rabin, The Right to Education (2002), at p. 301). It has been written that ‘The basic right to education, as created by statute, international law and case law, stands on its own, and is not necessarily related to the right to human dignity provided in the Basic Law: Human Dignity and Liberty’ (Yated v. Ministry of Education [7], at p. 843 {66-67}). The right to education has been recognized as having a negative element, which is expressed, inter alia, in the prohibition of violating a person’s right to education except in accordance with the provisions stipulated in this regard in the law (ss. 1 and 3 of the Student Rights Law), and it has also been recognized as having a positive element, which is reflected in the duty that the right imposes on the state to provide free education (see Y. Rabin, ‘The Many Faces of the Right to Education,’ in D. Barak-Erez & A.M. Gross, Exploring Social Rights (2007) 265, at p. 267; Compulsory Education Law; Yated v. Ministry of Education [7], at p. 848 {71-72}; cf. HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [9], at para. 12 of the opinion of President Barak. It has also been said that:

‘The right to education affects other basic human rights, such as the freedom of expression and the freedom of occupation; realization of the right to education is intended to achieve social purposes. Education constitutes a link between the different and varied sectors of society and an essential means of bridging between them to build a harmonious social fabric. Education is an important means of furthering free democratic values. It is an essential condition for the individual’s self-realization and for the existence of a proper social life’ (Israel Religious Action Centre v. Ministry of Education [3], at para. 51).

13. In view of the inseparable connection between a person’s education and his identity, the right to education is not limited to instilling knowledge or the acquisition of pragmatic tools to solve various problems. This can be seen in s. 2 of the State Education Law, which I have chosen to cite in full despite its length:

‘Purposes of state education

2.  The purposes of state education are:

(1) To educate a person to love his fellow man, to love his people and to love his country, to be a loyal citizen of the State of Israel, who respects his parents and family, his heritage, his cultural identity and his language;

 

(2) To teach the principles in the Declaration of the Establishment of the State of Israel and the values of the State of Israel as a Jewish and democratic state and to develop an attitude of respect for human rights, basic freedoms, democratic values, observance of the law, the culture and beliefs of others, and also to teach an aspiration for peace and tolerance in relations between individuals and between peoples;

 

(3) To teach the history of the land of Israel and the State of Israel;

 

(4) To teach Jewish law, the history of the Jewish people, Jewish heritage and Jewish tradition, to instil awareness of the memory of the Holocaust and Jewish Martyrdom, and respect for them;

 

(5) To develop children’s personalities, their creativity and their different talents, to extend their cultural horizons and expose them to artistic experiences, all of which in order to realize all of their potential as human beings who have a high-quality and meaningful life;

 

(6) To give children knowledge in the various spheres of knowledge and science, the various forms of human art throughout history, and the basic skills that they will require in their lives as adult human beings in a free society, and to encourage physical activity and a leisure culture;

 

(7) To strengthen the ability to make critical judgments, to foster intellectual curiosity, independent thinking and initiative, and to develop an appreciation for and awareness of changes and innovations;

 

(8) To give equal opportunities to every boy and girl, to allow them to develop in their own way and to create an atmosphere that encourages and supports differences;

 

(9) To nurture involvement in Israeli social life, willingness to accept office and discharge it with diligence and responsibility, a desire to help others, a contribution to society, volunteering and a striving towards social justice in the State of Israel;

 

(10) To develop an attitude of respect and responsibility for the natural environment and an attachment to the land, its scenery, and animal and plant life;

 

(11) To be familiar with the language, culture, history, heritage and special tradition of the Arab population and of other population groups in the State of Israel, and to recognize the equal rights of all citizens of Israel;

 

(12) To teach recognition of the sanctity of life and to instil a consciousness of safety and caution, including road safety.

Thus we see that the purposes of education concern the world of content from which the student originates and his culture, they concern his heritage and lifestyle, and the schools should balance the need to impart tools and skills, with which a student can go out into the world and realize his potential, against the cultural, ethical and national need to develop the character of the child and educate him in the light of his national identity and the heritage of his ancestors. As Justice Or wrote in one case: ‘We are speaking of one of the most important functions of the government and the state’ (HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [6], at p. 24). The right to education, therefore, is not limited to the mere establishment of a school, but extends to the character of the school and the content that is learned in it.

14. The right to denominational education has found expression in legislature since the earliest days of education in Israel. Thus, along with the founding of the state education system, the state recognized the need of various sectors of the population to teach their children in the spirit of their special culture, religious belief and community affiliation. The right of the community to denominational education — education that is consistent with its special outlook on life — reflects the right of every citizen to study in a school that suits his outlook on life (cf. HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [10], at p. 412). Within this framework, unofficial schools were recognized by the Compulsory Education Law, and the importance of a variety of schools was incorporated in s. 3 of the State Education Law:

State education from 1953

3.  From the academic year 5714 (1953-4) onwards, state education will be introduced in every official school; religious state education will be introduced in an official school that in the 5713 (1952-3) academic year was a part of the Mizrahi stream or the Agudat Yisrael stream or the religious part of the workers’ stream.

The right of various sectors to education that is consistent with their beliefs was recognized as a central component of the general right to education, within the framework of the right to choose the character and content of the education (Rabin, ‘The Many Faces of the Right to Education,’ supra, at p. 273). Concerning the importance of variety in schools, it was said in Upper Poria Board v. Minister of Education [2] that:

‘The right of a person to choose a private school for his child instead of the state school has been recognized in Israel and around the world, in both international law and domestic law. The private education system seeks to create special educational frameworks that satisfy the needs of certain sectors of the population that wish to give their children education of a special character as an addition to the basic academic programme studied in all educational institutions. Preserving academic autonomy in private education is an important value that should be respected within the context of the protection of the human right to self-realization, subject to ensuring the preservation of the basic educational values as defined in the State Education Law’ (ibid. [2], at p. 221; see also HCJ 8437/99 Habad Kindergarten Network in the Holy Land v. Minister of Education [11], at p. 81).

Within the framework of the recognition of the right to education, the right of students to equality in education has also been recognized (Rabin, ‘The Many Faces of the Right to Education,’ supra, at p. 277). It has been held that the right of a community to denominational education is not sufficient to reduce the state’s obligations to outline an equal policy, to supervise its implementation and to determine the core curriculum as stated in the law:

‘In view of the special weight of education in determining the appearance of the individual and society, the state has a duty not only to enforce and supervise the implementation of compulsory education in all sectors, but also to regulate directly the essential content of the education and the basic values that are imparted through it in all the schools’ (Israel Religious Action Centre v. Ministry of Education [3], at para. 53 of the opinion of Justice Procaccia).

This court has discussed in the past the need to preserve the core curriculum, which constitutes the cornerstone of education in Israel, and it is based on foundations of equality:

‘The core curriculum is intended to expose every student in Israel, whoever he is, and irrespective of the social group to which he belongs, to basic academic content of a general, national and universal nature. This content is the nucleus that is common to and unites all of the different streams in Israeli society, and which constitutes a “common denominator for all students on a conceptual-content-ethical level and for intellectual and educational skills”’ (ibid. [3], at para. 31; see also Secondary School Teachers Organization v. Minister of Education [5], at p. 236).

The recognized unofficial schools have therefore received legislative recognition, as well as being subject to supervision. The operation and budgeting of these schools is subject to the discretion of the Ministry of Education (see s. 11 of the State Education Law; Habad Kindergarten Network in the Holy Land v. Minister of Education [11], at p. 81). Notwithstanding, the right to denominational education in itself has not yet been recognized as a positive right and the Ministry of Education has not been required to take active steps to realize it. When a community establishes an independent school, it bears the main burden of managing and funding it:

‘The recognized (unofficial) schools are not like the official schools, since in the case of the former the state does not have these direct obligations: it does not have the direct obligation to provide education to children being educated in them nor does it have a direct obligation to fund the running of those schools. Recognized (unofficial) schools are run by private bodies; they also have the main responsibility for what is done in them and they are liable for the expenses of running them’ (Habad Kindergarten Network in the Holy Land v. Minister of Education [11], at p. 82).

15. From all of the aforesaid it can be seen that within the framework of the right to denominational education, members of a certain community may establish and operate a school that is consistent with their beliefs. The state may recognize the school, even though it is not obliged to do so, and contribute to its funding, all of which in accordance with the provisions of the law.

However, the right to denominational education, like any right, is not absolute. Indeed, ‘human rights are the rights of a person as a part of society. It is possible to restrict human rights in order to realize social goals. Only when these goals are realized is it possible to have human rights’ (HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [12], at para. 11 of the opinion of President Barak). Thus, when two basic rights conflict, the court is required to examine the nature and scope of the aforesaid rights, and to strike a balance between them in a manner that expresses the freedom of the individual and protects the public interest. In our case, the right to denominational education conflicts with the right to equality.

The right to equality

16. This court, from its earliest days, has discussed the importance of the principle of equality in our legal system. Thus Justice Landau emphasized the ‘basic principle of everyone being equal before the law’ (HCJ 98/69 Bergman v. Minister of Finance [13], at p. 697 {17}), and this was reiterated by Justice Shamgar when he said that ‘the rule that one may not discriminate against someone because of his ethnic origin, sex, nationality, community, country of origin, religion, belief or social status is a basic constitutional principle, which is part of the fabric of our basic legal ethos and constitutes an integral part thereof’ (HCJ 114/78 Burkan v. Minister of Finance [14], at p. 806; see also HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [15], at p. 331). The principle of equality has also found a place in the debate on rights (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [16], at para. 26 of the opinion of President A. Barak and the references cited there). It has been written that ‘it constitutes a basic constitutional value, which is part of the fabric of our basic legal outlooks and constitutes an integral part thereof’ (HCJ 6698/95 Kadan v. Israel Land Administration [17], at p. 273); see also Movement for Quality Government in Israel v. Knesset [16], at para. 40 of the opinion of President A. Barak). More than once this court has emphasized the destructive results of an unequal treatment of equals, for both the individual and society:

‘Indeed, there is no force more destructive to society than the feeling of its members that they are being treated unequally. The feeling of inequality is one of the most painful feelings. It undermines the forces that unite society. It destroys a person’s individual identity’ (Poraz v. Mayor of Tel-Aviv-Jaffa [15], at p. 332).

Justice M. Cheshin emphasized:

‘… We shall always hear a claim of discrimination, which is the most fundamental of issues. The principle of discrimination is based on the deep need that is innate to us, to every one of us — perhaps we should say, in the inclination and necessity in man: in man, but not only in man — that we are not discriminated against, that we are treated equally, by God above and at least by man… (Real or seeming) discrimination leads to a feeling of unfairness and frustration, the feeling of unfairness and frustration lead to envy, and when envy comes, reason is lost’ (HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [18], at p. 203).

17. In the past, this court has considered the status of the principle of equality in the education system, and it has been said on this subject that —

‘The purposes of state education originally included the value of equality. Implementing the value of equality in education is reflected, inter alia, in strengthening the aspiration of giving equal opportunities to students in education without economic, social and cultural gaps perpetuating significant differences in the education and professional qualifications that are acquired’ (Upper Poria Board v. Minister of Education [2], at p. 218).

The principle of equality is therefore a cornerstone of our legal system, without which it is not possible to have a proper education system. This outlook has found expression in legislation, and s. 5 of the Student Rights Law provides a criminal sanction where a school, or a person acting on its behalf, acts in a discriminatory manner:

Prohibition of discrimination

5.  (a) A local education authority, school or person acting on their behalf shall not discriminate against a student on ethnic grounds, for reasons of socio-economic background, or for reasons of political opinion, whether of the child or of his parents, in any one of the following:

 

(1) Registration, acceptance or expulsion from a school;

 

(2) Determining separate study programmes and advancement tracks in the same school;

 

(3) Having separate classes in the same school;

 

(4) Students’ rights and duties, including disciplinary rules and their implementation.

 

(b) Whoever transgresses the provisions of this section is liable to a year’s imprisonment or a fine, as stated in section 61(a)(3) of the Penal Law, 5737-1977.

18. With regard to the allocation of state resources, case law has emphasized, on more than one occasion, that ‘allocating state money for various public purposes is always subject to the principle of equality… treating individuals or institutions differently, when there is no relevant difference between them, constitutes improper discrimination and gives rise to a ground for judicial intervention’ (HCJ 727/00 Committee of Heads of Arab Local Councils in Israel v. Minister of Building and Housing [19], at p. 88; see also HCJ 59/88 Tzaban v. Minister of Finance [20], at p. 706; Israel Religious Action Centre v. Ministry of Education [3], at paras. 71-72). Notwithstanding, Justice E. Arbel added:

‘The principle of equality governs all fields of law and also applies to the distribution of budgets and subsidies by the authority. Many rules have been determined with regard to the application of the principle of equality in distributing budgets and subsidies. The essence of these rules is that the distribution of budgets and subsidies by the state should be done while upholding the principles of equality and reasonableness and while determining clear and transparent criteria for the distribution of the money. The authority that distributes the budget should consider only relevant considerations, and it may not discriminate between groups that do not differ from one another in any relevant way. Notwithstanding, it has been emphasized that equality does not mean identity. Sometimes, for the purpose of achieving real and genuine equality, the authority should distinguish between groups on the basis of the relevant difference between them’ (HCJ 11020/05 Panim For Jewish Renaissance v. Minister of Education, Culture and Sport [21], at para. 8).

However, it has been held on several occasions in the past that equal treatment does not mean identical treatment. Indeed, ‘it is clear that when an authority is ordered to act with equality, we are dealing with substantive equality, and not merely with formal equality. Sometimes, in order to achieve substantive equality we should act differently towards different individuals’ (Committee of Heads of Arab Local Councils in Israel v. Minister of Building and Housing [19], at page 89, and see the references cited there). The principle of substantive equality ‘is based on a criterion of relevance in the sense that there is no basis for distinguishing between persons or between issues on grounds that are not relevant, when it is possible to distinguish between them on grounds that are relevant’ (HCJ 6051/95 Recanat v. National Labour Court [22], at p. 312; HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [23], at p. 365 {9-10}). The meaning of substantive equality was discussed by President Agranat in one case:

‘In this context, the concept of “equality” therefore means “relevant equality”, and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in the aforesaid position. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [24], at p. 35).

Balancing rights — the right to equality in education

19. It is true that when the right to denominational education meets the principle of equality, there is an inherent difficulty in reconciling the two in a manner that upholds them to the fullest extent. Consequently —

‘… a constitutional process is required to restrict the protection given to constitutional rights, so that they are only protected to a partial extent. This restriction is based on the recognition that it is impossible to protect all of the rights to the fullest extent… Therefore an act of constitutional balancing is required’ (HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner of Police [25]).

As we have said:

‘… the principle of equality does not rule out different laws for different people. The principle of equality demands that the existence of a law that makes distinctions is justified by the type and nature of the matter. The principle of equality assumes the existence of objective reasons that justify a difference’ (HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [26], at p. 236).

It follows that when a certain school has determined characteristics by means of which a sector of the population will be distinguished, this policy should be examined in accordance with its concrete characteristics, as well as its actual results. Within this framework, the actions of the school making the distinction should be examined in the light of the purposes of the education and the basic values of the legal system. If the distinction serves the purpose — namely the right to denominational education — in a relevant manner, it will be a permitted distinction. If the distinction serves the purposes in a manner that is not relevant — namely in a manner whose characteristics, purpose or results create a distinction that is, in the circumstances of the case, irrelevant — this will constitute prohibited discrimination.

Indeed, not every special characteristic — whether it is a difference in culture, religion, custom or ideology — can justify discrimination. The characteristic needs to be an inherent part of the outlook of the educational institution that seeks to impart the values of a particular denomination, it should be relevant to the purpose of the distinction, and it should be a characteristic without which it will be difficult to maintain the denominational education system according to its own criteria. It is the court that will determine whether a certain denomination has been distinguished justly — in order to allow a certain denomination to live freely in its community — or whether the case is one of prohibited discrimination whose whole purpose is to exclude people who are different and isolate them from proper society.

20. As we have said, recognized unofficial schools are entitled to determine cultural characteristics according to which the students in the school will conduct themselves. These characteristics should represent the belief and culture of the denomination in whose spirit the school was founded and is operated, and they should reflect the lifestyle and outlook of the denomination. But where the school rules — or the rules of the track within the school — are designed solely in order to prevent the admission of one group or another into a certain educational framework — we are dealing with improper discrimination.

21. Indeed, there are those who believe — and this is what the external examiner, Advocate Bas, said — that there are behavioural, cultural and community characteristics that discriminate against a certain denomination, but constitute an inherent part of the religious outlook of various denominations. In other words, in a conflict between the two rights — the right to denominational education and the right to equality — there are characteristics that are required for the purpose of preserving the world of values of the one right, while conflicting with the other right. For this purpose we need to seek a balance between the conflicting rights.

When we seek to find the constitutional balance, ‘we are dealing with a balance that is required between a violation of one liberty and a violation of the other. The balance is a horizontal one. It determines restrictions that will allow each liberty to be upheld in its essentials’ (HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [27], at page 277). In our endeavour to strike the aforesaid balance, we seek for the outcome that gives expression to the conflicting rights in a state of coexistence:

‘We are concerned with two human rights of equal standing, and the balance between them must therefore find expression in a reciprocal waiver whereby each right must make a concession to the other in order to allow the coexistence of both. The protection of the law does not extend to either of the rights in its entirety. Each right suffers restrictions of time, place and manner in order to allow the substantive realization of the other right’ (Dayan v. Wilk, Jerusalem District Commissioner of Police [25], at page 480 {353}).

In our case, the legislature recognized the existence of denominational schools and even established conditions for them, by requiring that they obtain a licence for regulating and subsidizing them. Along with the recognition of this right, the legislature enshrined the rights of students to be treated equally and not to be discriminated against (s. 5 of the Student Rights Law). It has been said in the past with regard to this balance that:

‘The accepted premise in Israel, like that in other democratic countries, is that the aforesaid tension should be resolved by respecting the autonomy of the family to choose the type of education that it desires for its children, while at the same time recognizing the authority — and sometimes the duty — of the state to intervene in this autonomy in order to protect the best interests and rights of the child, and to achieve a general social purpose by creating a common denominator of basic educational values that unites all the members of society’ (Israel Religious Action Centre v. Ministry of Education [3], at para. 55).

22. Indeed, the right of communities to operate educational frameworks that are consistent with their outlook has been recognized by law, but these schools are conditional upon ‘minimum requirements that the state determines, subject to a respect for human rights and basic liberties, in order to realize the possibility of every individual taking a de facto part in society’ (ibid. [3], at para. 56). Thus, in another case, the funding of recognized unofficial schools was made conditional upon adopting the state core curriculum, which establishes an equal standard for academic requirements in Israeli schools (Secondary School Teachers Organization v. Minister of Education [5], at p. 239; Israel Religious Action Centre v. Ministry of Education [3], at para. 55 of the opinion of Justice Procaccia). It was held that ‘the subsidizing of schools that do not satisfy the conditions enshrined in the law and that do not realize the goals of state education is ultra vires and a violation of the duty of trust that the public authority owes to the public from which it derives its authority’ (Secondary School Teachers Organization v. Minister of Education [5], at p. 236).

23. How does the aforesaid balance apply to the manner in which a school is run and to the rules of conduct that it demands? A preliminary answer to this question can be found in the remarks of Vice-President Barak in a case where the court was called upon to consider the question of the head covering of a student who was a girl of Arab ethnicity. This cultural symbol deviated from the uniform dress code that was the practice in the St. Joseph’s Greek Catholic Secondary School, and it was therefore prohibited. Following a petition that the student filed in this court, it was held that:

‘We should consider the reasons underlying the requirement of a uniform dress and conduct code. Indeed, were these reasons based on uniformity as an independent value, I would be prepared to hold that the petitioner’s freedom of religion overrides them. [In our case], we are satisfied that the requirement of a uniform dress and conduct code is based on educational considerations relating to the character and nature of the school as a school of a religious community. The uniformity of dress and conduct provides the common denominator that allows all the students… to have a joint lifestyle in the school, which is based on religious and ethnic pluralism. Undermining the uniform dress and conduct code will undermine the character of the school and it special quality, and ultimately it will undermine its special framework and the (moderate) religious outlook that prevails in the school’ (HCJ 4298/93 Jabarin v. Minister of Education [28], at p. 202).

In another case, the Administrative Court (the honourable Justice B. Okon) considered the application of the principle of equality in admissions to private schools that are included among the exempt schools (AP (Jer) 1320/03 Alkaslasi v. Upper Beitar Municipality [39], at p. 655). It was held that ‘The Prohibition of Discrimination Law sets a clear standard that requires the application of equal criteria, and it imposes them on private organizations, including schools… [The Ministry of Education] cannot grant an exemption to schools that do not satisfy the requirements of this law’ (ibid. [39], at p. 657). And if this is the case with regard to exempt schools, it is clear that the Ministry of Education is not permitted to allow discrimination in schools that benefit from the state budget.

The Ministry of Education, in its supplementary statement, also characterized the line that separates the relevant from the discriminatory in a case where there are separate academic tracks:

‘A separate track does not mean an absolute separation in all spheres of education and during all study times between the students who study in it and the other students in the school; it should only relate to those study times during the week during which the special material or the specific content of that separate track is taught, and not to all the other hours of study in the school, nor to breaks, the uniform, the staff, the management and the other separate characteristics adopted in this regard’ (p. 5 of the supplementary notice of 7 Tammuz 5768 (10 July 2008)).

24. From all of the aforesaid it can be seen that a school may have a special track in which the religious practices and outlook of a certain denomination are taught. The school may also determine relevant rules of conduct for students in the track, for the purpose of integrating the academic content studied in it. However, the school should allow each student who satisfies the relevant basic conditions and who seeks to adopt the lifestyle that accompanies them to study in the track that he wants. Above all, it is clear that the denominational affiliation of a student should not be a relevant condition for admitting him to a certain track, and creating segregation within one school — by separating the students at all times of the day, introducing a different uniform, separating the teachers’ room and charging extra tuition — is not a relevant measure for the purpose of student education. The school may distinguish between students in different tracks solely for the purpose of studying content that is unique to those tracks only, but the regular studies and the rules of the school should be the same for everyone studying in the school throughout the study hours.

I should also emphasize that a policy of ‘equal separation’ cannot atone for improper discrimination where there is any, as this court said in another case:

‘A policy of “separate but equal” is inherently unequal. This approach is based on the outlook that separation implies an insult to a minority group that is excluded, emphasizes the difference between it and the others and perpetuates feelings of social inferiority’ (Kadan v. Israel Land Administration [17], at p. 279).

25. The Ministry of Education has the authority to supervise the balance discussed above. It should protect the rights that require balancing and deal strictly with those who violate that balance. Admittedly, the Ministry of Education’s power to cancel the licence of a school is a discretionary power (section 15 of the Supervision of Schools Law), but it is a well-known rule that the authority should exercise its power reasonably, and this court has held in the past that ‘a discretionary power becomes a non-discretionary power when the factual circumstances are such that the basic values of our constitutional and legal system make a failure to exercise the power unreasonable in a way that goes to the heart of the matter’ (HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [29], at p. 421 {282} and the references cited there). A gradual process of remedying the defect is unacceptable, and the Ministry of Education should take effective and unequivocal steps to eradicate discrimination and return the school to the path of the constitutional balance.

From general principles to the specific case

26. It is easy to determine that in the case before us the purpose of the rules — some of which found their place in the wording of the separate regulations for the Hassidic track, and some of which were applied de facto without official regulations — as the examination report of Advocate Bas showed, was simply this: the separation of girls of the Hassidic denomination from their Sephardic counterparts. This determination is based mainly on the outcome test, which shows that de facto two wings were operated within the school. These wings — which were initially intended to be two separate schools and were subsequently run as two wings — were characterized by a division of the population that was not coincidental, and it clearly shows the discriminatory intentions of the initiators of the separation, to such an extent that ‘it can be said to speak for itself’ (Vice-President M. Cheshin in HCJ 240/98 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [30], at p. 178).

This discrimination is also clearly reflected in the regulations that were submitted for the approval of the director-general of the Ministry of Education, some of which were cited above. A study of the various regulations shows that we are not dealing with a ‘track whose purpose is the study of the Hassidic way of life,’ but with an attempt to separate different sectors of the population on an ethnic basis, under the cloak of a cultural difference. The preference of students from a certain ethnic group in admissions to the Hassidic track, while placing bureaucratic difficulties in the path of parents of students from another ethnic group who want to register their daughters for the track, seriously undermines the right to equality. The same is true with regard to the school’s requirement that parents of the students should act in accordance with the lifestyle practised in the school, and the request — which was rightly excluded from the regulations — that the prayers should be recited solely in accordance with the Ashkenazi pronunciation. All of these merely serve an improper purpose, which is to exclude from the Hassidic track students from the Sephardic community, solely because of their origin.

The characteristics of the discrimination in this case can also be seen in the atmosphere that has enveloped this case from the outset and that is discernible in the respondents’ conduct. In other words, the main discrimination in this case was discussed above, but it is also reflected in the fact that the Independent Education Centre and the school did everything that they could in order to satisfy the requirements of the Ministry of Education on an institutional level, but they did not really implement their solutions. In practice, their undertakings had little effect on the lifestyle in the school, and in this regard it has been said that: ‘It should be remembered that discrimination always — and maybe today more than in the past —  conceals itself and goes underground, but achieves its goals by using valid arguments. Improper discrimination is not always discussed openly’ (Alkaslasi v. Upper Beitar Municipality [39], at p. 652).

27. With regard to the Ministry of Education, in view of its authority and responsibility to supervise the school, and in view of the continuing violation of the right to equality on the part of the school, it is clear that the ministry should have taken all the steps available to it in order to eradicate the discrimination and return the policy of the school to the framework of the constitutional balance. When the Independent Education Centre and the school failed to comply with the instructions of the Ministry of Education, it should have exercised its powers to cancel the school’s licence and stop its subsidy, and I have said in the past that ‘one should not turn a blind eye to a continuing situation of ultra vires, and an administrative authority should not be allowed to adopt a policy of procrastination in remedying what is wrong’ (Secondary School Teachers Organization v. Minister of Education [5], at p. 238).

28. Indeed, this case reflects a harsh reality of the extent to which the recognized unofficial education stream respects the rights to equality of the individuals studying in its institutions. I can only express regret at the fact that various denominations avail themselves of the right to denominational education in order to deepen discrimination in Israeli society. In view of the many aspects of this case and the uncomfortable feelings of everyone involved in it, I can only hope that ultimately the inhabitants of the town will once again live together and send their daughters to a proper school that will teach them, inter alia, the value of tolerance for other human beings.

The relief

29. The Beit Yaakov School and the Independent Education Centre have therefore violated the right of the Sephardic students to equality, and thus they have departed from the constitutional balance between the rights relevant to this case. The Ministry of Education acted ultra vires when it failed to exercise the means available to it for the purpose of preventing the aforesaid discrimination.

I shall therefore propose to my colleagues that we make the order nisi absolute, and we order the Independent Education Centre to remove any indication, both formal and substantive, of the phenomenon of discrimination that exists in the school. We also order the Ministry of Education, in so far as it finds that the Independent Education Centre does not comply with this order, to take all the legal steps to remedy the situation, including the cancellation of the school’s licence and stopping its subsidy.

Finally, I propose that the respondents should pay the costs of the legal fees of counsel for the petitioners — the first respondent in a sum of NIS 15,000 and the third respondent in a sum of NIS 60,000.

 

 

Justice E. Arbel

I agree with the opinion of my colleague Justice E.E. Levy, and with his reasoning.

We are dealing with a petition concerning an act of discrimination in a school that was carried out by creating two separate wings that split the student body into an Ashkenazi group and a Sephardic one. In order to formalize the segregation, regulations were prepared for the approval of the director-general of the Ministry of Education, together with additional rules that would be implemented informally. The petitioners spoke of the feelings of rejection and humiliation experienced by the Sephardic girls and their parents as a result of their being segregated from the girls of Ashkenazi origin.

The prohibition of discrimination, which is the opposite of equality, lies at the heart of the case before us. As has been said on several occasions in our case law, and also by my colleagues here, the principle of equality and the prohibition of discrimination are basic principles in our law in general and in the field of education in particular. A different treatment of equals, discrimination and segregation mean the adoption of an arbitrary double standard that has no justification. The segregation completely undermines interpersonal relations. The feeling of discrimination leads to the destruction of the fabric of human relationships (see HCJ 7111/95 Local Government Centre v. Knesset [31], at p. 503).

It is important to emphasize that the right of a community to denominational education on the basis of religious differences does not release it from the obligation of equality (see s. 5 of the Student Rights Law, 5761-2000). Although as a rule a certain sector of the population may impose demands on religious issues in order to realize purposes relating to religious education of the kind that it espouses, these requirements should not be confused with requirements that are based on ethnic backgrounds, nor should we be misled by the religious-ideological cloak with which it is disguised.

In the case before us, the original requirement of using the Ashkenazi pronunciation during prayers — a requirement that was ultimately removed — creates a difficulty of forcing a girl to pray with a pronunciation that is different from the one used at home and in the synagogue to which her family belongs. The character of this requirement blatantly reveals the true intention underlying the basis for the separation between the tracks and the basis for the regulations that were drafted. But in addition to this clause, it is difficult to accept the demand for an Ashkenazi religious authority that will apply to the whole lifestyle of the students and their parents, without any exception and without any consideration for the ethnic group from which the student originates. One may ask: it is conceivable to expect the parents of a student from the Sephardic community to act in accordance with Ashkenazi religious practices when there may be cases where even the strictest of Sephardic rabbis have ruled differently? Admittedly the school is a denominational one, but one might expect a minimal level of tolerance for others, which in this case means a girl from another ethnic background, when this does not materially affect the religious standard required by the school. Therefore, this broad and unqualified requirement in the regulations also shows, in my opinion, the true intention that underlies it, namely a separation between ethnic groups and not between different standards of religiosity. I should point out in closing that the question of the legitimacy of the various requirements made by schools of the parents of students (as distinct from the students themselves) is complex and deserves a thorough examination, but this is not the proper place for that.

The Ministry of Education is responsible for the school and the way in which it is run, and it should first and foremost ensure a policy of equality and supervise its implementation. The Ministry of Education should therefore employ all the means at its disposal, and act without fear to eradicate the phenomenon of discrimination.

Therefore, as aforesaid, I agree with my colleague’s opinion and the result that he reached. 

 

 

Justice H. Melcer

1.    I concur with the opinion of the presiding justice in this case, my colleague Justice E.E. Levy, and with the remarks of my colleague Justice E. Arbel. Notwithstanding, in view of the importance of the matter, I would like to add a few remarks and emphasize several points.

2.    My colleagues discussed how the discrimination directed in this case at the students of Sephardic origin (who were mostly placed in the ‘general’ track) in relation to the students of Ashkenazi origin (who were placed in the ‘Hassidic’ track) and the segregation that was de facto introduced in the school violate the right to education and the right to equality of the victims of the discrimination.

The right to education has a constitutional basis, which can be deduced from the basic outlooks of our legal system, but whether it is enshrined as a super-legislative constitutional right is unclear (see HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [6], per Justice T. Or; Justices Tz. Tal and D. Dorner reserved judgment). Notwithstanding, there is a view that the right to education can be derived from the provisions of the Basic Law: Human Dignity and Liberty, but even those who hold this view maintain that its recognition as a super-legislative constitutional right is indirect (see Y. Rabin, The Right to Education (2002), at pp. 376-387; Y.M. Edrey, ‘Human Rights and Social Rights,’ Berinson Book (vol. 2, 2000) 45, at p. 87).

The right to equality has, of course, been recognized since HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [16] as a part of the right to human dignity in so far as this right is integrally bound up with human dignity (ibid. [16], at para. 33).

It seems to me that the case before us falls within this framework, but it can also be said that alongside the violation of the right to education and the right to equality as such, there is also a direct violation of an express constitutional right, which is enshrined in the Basic Law: Human Dignity and Liberty, namely the right to dignity. I will discuss this immediately below.

3.    The Basic Law: Human Dignity and Liberty, which is based, inter alia, on the recognition of the importance of man and the fact that he is a free agent, protects, inter alia, the dignity of man as a human being. Within this context, humiliation is a blatant violation of dignity. Indeed, Justice D. Dorner held in HCJ 4541/94 Miller v. Minister of Defence [32], at pp. 132-133 {223-225} that:

‘Notwithstanding, there can be no doubt that the purpose of the Basic Law was to protect people from degradation. The degradation of a human being violates his dignity. There is no reasonable way of construing the right to dignity, as stated in the Basic Law, such that the degradation of a human being will not be considered a violation of that right’ (ibid. [32], at p. 132 {223}).

In our case, the humiliation arises from the fact that the classification into study tracks was done de facto against a background of ethnic origin (based on the pseudo-religious ground that we will refute later). Justice Dorner went on to explain in Miller v. Minister of Defence [32] that:

‘Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, involves a profound humiliation of the victim of the discrimination’ (ibid. [32], at p. 132 {224}).

This is because it —

‘… sends a message that the group to which he belongs is inferior, and this creates a perception of the inferiority of the men and women in the group. This creates a vicious cycle that perpetuates the discrimination. The perception of inferiority, which is based on the biological or racial difference, causes discrimination, and the discrimination strengthens the deprecating stereotypes of the inferiority of the victim of discrimination. Therefore the main element in discrimination because of sex, race or the like is the degradation of the victim’ (ibid. [32], at p. 133 {224-225}).

In passing we should add that a similar (and more far-reaching) outlook is expressed by Dr Orit Kamir, in her analysis of the relationship between the value of equality and the value of dignity (see, O. Kamir, Human Dignity — Feminism in Israel: A Social and Legal Analysis (2007), at p. 54). According to Dr Kamir’s approach, whereas the Aristotelian concept of equality (‘equality means equal treatment of equals and different treatment of those who are different according to the extent of their difference’ — see Miller v. Minister of Defence [32], at p. 133 {225}) assumes the existing social structure, accepts it and compares the rights of individuals within it, without recognizing the basic discrimination that characterizes it, the outlook of equal human dignity determines that all human beings are equal partners, by definition, in the absolute value from which their basic rights are derived (see Kamir, Human Dignity — Feminism in Israel: A Social and Legal Analysis, supra, at p. 55). Dr Kamir also distinguishes between human dignity and the dignity of human existence. Human dignity is the essence of the human nature of a person and it includes his ‘physical, conscious and emotional existence in basic security and welfare as well as the autonomy to self-definition and development’ (ibid., at p. 52). By contrast, the —

‘... dignity of human existence’ ‘attributes a value to the special human potential of each individual according to his free definition. It does not relate to the basic human element that is common to all human beings, but actually to the complex aggregate that characterizes every such human individual. The dignity of human existence is the basic ethical dimension of the human sphere, which includes the characteristics of every individual, his qualities, skills, abilities, tendencies and ambitions’ (ibid., at p. 53; emphasis added).

According to this distinction, Dr Kamir is of the opinion that discrimination against groups should be defined in terms of equal human dignity — human dignity and the dignity of human existence — and we ought to fight for the rights of individuals who belong to groups that are discriminated against for the sake of this equality (ibid., at p. 57). It may be possible to deduce from this approach that in the circumstances of the case before us, even if we do not say that the students here suffered a violation of their human dignity, as can be seen from the arguments of the third respondent (and this seems doubtful to me), in any case at least a violation of their ‘dignity of human existence’ occurred in this case.

4.    Justice Dorner’s opinion, which was cited above, relied in Miller v. Minister of Defence [32], inter alia, on what was said in the famous judgment of the Supreme Court of the United States in Brown v. Board of Education of Topeka [40], which gave rise to questions that are to some extent similar to those that arise in our case. Brown v. Board of Education of Topeka [40] rejected the doctrine that was previously accepted in American law with regard to ‘separate but equal’ education.

With regard to the effect of separate education, the Chief Justice of the Supreme Court of the United States, Earl Warren, said on behalf of the whole court:

‘We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does…

Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone’ (ibid. [40], at p. 691).

In view of the aforesaid, the Supreme Court of the United States held unanimously as follows:

‘We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal’ (ibid. [40], at p. 691).

The facts and the aforementioned American case (which was based on the right to equality that is enshrined in the Fourteenth Amendment of the United States Constitution, on the ground of inferiority and humiliation, which is more similar to the value of protecting dignity in Israel in the sense presented above) have as noted a certain similarity to the facts before us on the question of segregation, since in the reply to the petition it was also implied that it is supposedly possible to have equality despite the separation between the tracks, and that this does not constitute ethnic discrimination.

Despite the huge importance of Brown v. Board of Education of Topeka [40] in the United States and the revolution that it brought about there, which led to the end of racial discrimination in education in the United States (see A. Gotfeld, ‘Brown v. Board of Education in Topeka and its Place in American History,’ in D. Gotwein and M. Mautner (eds.) Law and History (1999)), it was not the final word on the subject. It gave rise to a variety of new and additional questions both with regard to the ways in which it should be implemented, and with regard to the right of minority communities to preserve their special character in a multi-cultural environment (see the fascinating book: J.M. Balkin (ed.), What Brown v. Board of Education Should have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (2001); ‘Symposium: Brown at Fifty: Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa,’ 117 Harv. L. Rev. 1378 (2004); D. Gibton, ‘Awaiting Mizrahi v. Board of Education of Topi-Gan (unconsidered): A Critical and Comparative Analysis of the Position of Israel’s Supreme Court on Integration in the Israeli School System,’ 28(2) Tel-Aviv University Law Review (Iyyunei Mishpat) 473 (2004)). A vague echo of some of these questions can also be found in the case before us, and we shall discuss them in paragraph 6 below. But before we discuss that, we should explain the significance of the fact that this case involves, in our opinion, a direct violation of a basic constitution right (the right to dignity), which is expressly enshrined as aforesaid in the Basic Law: Human Dignity and Liberty.

5.    The significance is that incorporation in the Basic Law . the Basic Law: Human Dignity and Liberty.s aforesaid cinating book: J.M. Balkin (ed.),ty communities to preserve their speciahas ramifications on both the definition and the scope of the right (which as a constitutional right is interpreted broadly, and according to some opinions should be ‘balanced’ horizontally against other constitutional rights of equal importance and status), and on the conditions in which it is permitted, if at all, to violate it by virtue of the ‘limitations clause’ (see Miller v. Minister of Defence [32], at p. 133 {224-225}; HCJ 10203/03 National Assembly Ltd v. Attorney-General [33]). Here, not only is there no such law (or express authorization therein) that allows a violation of the right, which is the first condition that needs to be satisfied in order to implement the ‘limitations clause’ in s. 8 of the Basic Law: Human Dignity and Liberty, but there are several laws that establish the right and expressly prohibit ethnic discrimination of the kind under consideration in the petition. We will set out these laws and their relevant provisions below:

(a) The Student Rights Law, 5761-2000 (hereafter — the Student Rights Law):

Section 5 of the Student Rights Law states:

Prohibition of discrimination

5.  (a) A local education authority, school or person acting on their behalf shall not discriminate against a student on ethnic grounds, for reasons of socio-economic background, or for reasons of political opinion, whether of the child or of his parents, in any one of the following:

 

(1) Registration, acceptance or expulsion from a school;

 

(2) Determining separate study programmes and advancement tracks in the same school;

 

(3) Having separate classes in the same school;

 

(4) Students’ rights and duties, including disciplinary rules and their implementation.’

(emphases added).

The meaning of the terms ‘school’ and ‘recognized school’ in the Student Rights Law follows the definition of these terms in the Compulsory Education Law, 5709-1949. If we refer to the Compulsory Education Law, we see that according to the definitions in s. 1 of that law, a ‘recognized school’ also means ‘any other school that the minister has declared, in a declaration published in Reshumot, to be a recognized school for the purpose of this law’ (hereafter: a ‘recognized unofficial school’). In the petition before us, there is no dispute that the Beit Yaakov Girls Primary School in Immanuel is a recognized unofficial school.

Section 16(a) of the Student Rights Law further provides that ‘The provisions of this law shall apply to every recognized school.’ Section 16(b) of that law states: ‘A recognized unofficial school shall be subject to the provisions of this law, except for sections 6, 7 and 13, but the minister may order, with the approval of the committee and after considering the character of the school, that all or some of the provisions of the aforesaid sections shall apply to it.’ It follows from the aforesaid that section 5 of the aforementioned Student Rights Law applies to the Beit Yaakov Girls Primary School, which is the subject of the petition before us.

The minutes of the meetings held by the Education, Culture and Sport Committee of the Knesset in the course of preparing the draft law (which was tabled by MK Silvan Shalom) — prior to its second and third readings — give an insight into the background underlying s. 5 of the Student Rights Law.

Thus, for example, MK Zevulun Orlev, the chairman of the committee, said with regard to the question of the special nature of the various schools:

‘We are not seeking to cancel the tracks and the special characteristics. All that we want is that within each framework there will be no discrimination. MK Silvan Shalom did not intend in this law to cancel the status of any track in education. I want there to be no discrimination in any track.’

(See the minutes of the second meeting of the subcommittee of the Education, Culture and Sport Committee of the Fifteenth Knesset of 23 May 2000, at page 24; emphases added).

In another meeting MK Silvan Shalom explained the provision as follows:

‘… I am referring to the ethnicism (sic) that is introduced here for ethnic reasons. Usually religious discrimination is ethnic; it is within the religious track, but for ethnic reasons…’

(See the minutes of meeting no. 113 of the Education and Culture Committee of the Fifteenth Knesset, at p. 6 (19 June 2000); emphasis added).

In summarizing the issue in the Knesset after the law passed its third reading, MK Silvan Shalom said the following:

‘The prohibition of discrimination: From today it is not permitted to discriminate between one student and another for the purpose of admissions, on ethnic grounds or because of social or economic background. It will also be prohibited to refuse admission to a student because of the political beliefs of the parents of the child himself. Admittedly there is a possibility of discrimination in other situations, but they are appropriate situations, such as when a boy or girl wishes to learn in a single-sex school. If that is the character of the school, that is how it should be. If there is a situation in which a child who does not observe the Torah and the commandments wishes to be admitted tomorrow to an Orthodox religious school, he will not be permitted to do so. If a Jewish or an Arab child wishes to be admitted to an Orthodox Jewish school or a religious Arab school, or in a certain kind of Jewish school or a certain kind of Muslim school, the student will not be able to say that the refusal is discrimination.’

(See: Knesset Proceedings 5761, at pp. 1271, 1274; emphasis added).

Thus we see that s. 5 of the Student Rights Law was intended, inter alia, to prevent situations in which discrimination is based on ethnicity, such as the one that occurred in the Beit Yaakov School in Immanuel. Therefore all we can do is to give effect to the proper purpose underlying the aforesaid s. 5.

(b) The Prohibition of Discrimination in Products, Services and Entrance to Places of Entertainment and Public Places, 5761-2000 (hereafter: ‘the Prohibition of Discrimination in Products and Services Law’):

The Prohibition of Discrimination in Products and Services Law defines ‘public service’ as follows:

‘Transport, communications, energy, education, culture, entertainment, tourism and financial services, which are intended for the use of the public’

(emphasis added).

Section 3(a) of the Discrimination in Products and Services Law states as follows:

‘Prohibition of discrimination

3.  (a) Anyone whose occupation is the supply of a product or a public service or the running of a public place shall not discriminate in supplying the product or the public service, in allowing entry into the public place or providing a service in the public place on account of race, religion or religious group, nationality, country of origin, sex, sexual orientation, beliefs, political affiliation, personal status or parenthood.’

(emphases added).

For the implementation of the aforesaid provisions, see: AP (Jer) 1320/03 Alkaslasi v. Upper Beitar Municipality [39].

It follows from the aforesaid that the constitutional right to the protection of dignity, which was directly violated here as a result of the humiliation involved in the ethnic discrimination directed in this case at the students of Oriental origin can only be remedied by eliminating the discrimination. In this context it should be emphasized that, as we have said, the relevant laws do not allow any violation of this kind (on the contrary, they expressly prohibit it). Moreover, the other conditions of the limitations clause (which we saw no need to address in this case) are also not satisfied in the circumstances.

6.    How therefore does the third respondent try to justify its conduct? It argues that the separation was on a religious basis and not an ethnic one (see para. 15 of its statement of reply). Thereby it is trying to avail itself of the ‘freedom of religion’ exception, which in its opinion extends to conduct of this kind, or the exception that allows a cultural minority community to have its own educational autonomy. In the United States, an argument of this kind was accepted in the past, with regard to the Amish sect, on the basis of the right to freedom of religion, but in the United States that right is enshrined in the First Amendment to the United States Constitution (see Wisconsin v. Yoder [41]). Here I should point out that the aforesaid judgment has been criticised in legal literature. See: W. Kymlica, Citizenship, Community and Culture (1989); W. Kymlica and R. Cohen-Almagor, ‘Ethnic-Cultural Minorities in Liberal Democracies,’ Basic Issues in Israeli Democracy (1999) 187; Rabin, The Right to Education, at pp. 159, 231-235, which also refers to a previous judgment of the United States Supreme Court in Prince v. Massachusetts [42] (which was considered in Wisconsin v. Yoder [41]).

Moreover, it would appear that the reliance on ‘religious grounds’ for the de facto separation is merely a disguise for discrimination, and even disguised discrimination is unacceptable (see the remarks of Justice J. Türkel in HCJ 200/83 Wathad v. Minister of Finance [34], at pp. 121-122; the majority opinion per Justice M. Cheshin in HCJ 1/98 Cabel v. Prime Minister of Israel [35], at pp. 259-260).

Furthermore, in Israeli law the right to freedom of religion has not yet achieved the status of a super-legislative constitutional right, even though Prof. A. Barak in his book Legal Interpretation (vol. 3, Constitutional Interpretation) (hereafter: ‘Barak, Constitutional Interpretation’) originally expressed the opinion that this right is also derived from ‘human dignity’ and the purpose clause in the Basic Law: Human Dignity and Liberty (ibid., at p. 430; see also his remarks in HCJ 3261/93 Manning v. Minister of Justice [36], at p. 286 and in HCJ 4298/93 Jabarin v. Minister of Education [28], at p. 203, where he expresses himself more moderately. See also the opinion of Justice A. Procaccia in HCJ 10356/02 Hass v. IDF Commander in West Bank [37]. For a different opinion, see H. Sommer, ‘The Unlisted Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 257 (1997), at pp. 325-326).

According to some authorities, a horizontal balance should not be made with such a right, in so far as it is not super-legislative (if that is indeed its status), against the constitutional right of the protection of dignity, since the latter is higher than the former in the constitutional hierarchy (for other opinions on this issue, on which I too would reserve judgment at this stage, see HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner of Police [25], at pp. 473-478, per Vice-President A. Barak, and the separate opinion of Justice S. Levin, ibid. [25], at p. 486; Barak, Constitutional Interpretation, at pp. 215-249; A. Barak, ‘Freedom of Information and the Court,’ 3 Ono Academic College Yearbook in Memory of Haim H. Cohn 95 (2003), at pp. 100-101; Sommer, ‘The Unlisted Rights — On the Scope of the Constitutional Revolution,’ supra, at pp. 334-337; R. Segev, Weighing Values and Balancing Interests (2008), at pp. 129-213).

Whatever the outlook is with regard to the aforesaid question that I presented, modern literature in this field holds that cultural practices should be subjected to the criterion of dignity. See M. Dan-Cohen, ‘Defending Dignity’ in Harmful Thoughts: Essays on Law, Self and Morality, 150 (2002). For different and additional outlooks on this issue, see G. Gontovnik, ‘The Right to Culture in a Liberal Society and in the State of Israel,’ 27(1) Tel-Aviv University Law Review (Iyyunei Mishpat) 23 (2003); R. Gordon, ‘ “Saturday Morning, a Beautiful Day” — The Struggle of Women in the Orthodox Community for Participation in the Synagogue and Religious Rituals,’ Studies in Law, Gender and Feminism (D. Erez-Barak, ed., 2007) 143); R. Cohen-Almagor and M. Zambotti, ‘Liberalism, Tolerance and Multiculturalism: The Bounds of Liberal Intervention in Affairs of Minority Cultures,’ in K. Wojciechowski and J.C. Joerden (eds.), Ethical Liberalism in Contemporary Societies (2009), at pp. 79-98.

The most up-to-date and comprehensive Israeli research in the aforesaid field has been carried out by Prof. Menachem Mautner in his new book Law and Culture in Israel at the Beginning of the Twenty-First Century (2008). There (at pp. 385-423) he proposes two innovative models for resolving the question of the extent of consideration that should be given to minority cultural practices: one model that is based on human rights law and another model that is based on the concept of ‘man.’ In both models, the element of dignity, as Prof. Mautner interprets it, has a central role. This is how he explains the proper criterion for considering minority cultural practices:

‘Since we have adopted the duty to treat human beings with dignity as a justification for non-intervention in their cultures, then we should say that if we find a group whose culture is not based on treating human beings with dignity, the validity of the group’s claim that non-intervention in its culture is justified is undermined, and an opening is created for intervention in its cultural practices, in order to restore dignity to the human beings living in that culture. This is because it would be an internal contradiction if we were to allow a group to block intervention in its practices on the ground of the need to treat human beings with dignity, while the practices themselves are based on a lack of dignity for human beings’ (ibid., at pp. 411-412).

This outcome of eradicating ethnic discrimination (even if disguised), because of the violation of the dignity of the students studying in the special cultural framework to which the Beit Yaakov Girls’ School in Immanuel belongs, is required in the case before us by the aforesaid models and also by the provisions of s. 5 of the Student Rights Law. As stated above, this section makes the proper distinction and provides that a student should not be the subject of ethnic discrimination in each of the cases involving education that are listed there. On the other hand, it is clear that it is possible to hold separate prayers and religious rituals in schools of the kind discussed in the petition in accordance with the customs and rites of the different communities (see, in this regard, Rabbi Ovadia Yosef, Responsa Yehaveh Daat 4, 4 and 5, 6; Yabia Omer 2, 6 [43]); see Rabbi Binyamin Lau, MiMaran ad Maran (2005), at pp. 202-219). On this point it should be noted that already in the eighteenth century a similar issue was considered (cf. Rabbi Tzvi Hirsch ben Yaakov Ashkenazi, Responsa Hacham Tzvi, 33 (1712). With regard to the students’ uniform, I agree with the minority opinion of Vice-President Justice A. Barak in Jabarin v. Minister of Education [28], but in view of the extensive discussion that has recently taken place in international case law and comparative law on this question, I think that there is no need at this stage to make any firm determination on this matter.

Now that we have considered the relevant constitutional issues, let us turn to the perspective of administrative law.

7.    In the field of administrative law, there are two questions that arise in this context, on the assumption that the prohibition of discrimination has been violated:

(a) What is the fate of the licence given to the school?

(b) Should the state continue funding the school?

Let us consider these issues briefly in their proper order.

The fate of the licence given to the school

8.    The Supervision of Schools Law, 5729-1969, prohibits the opening or running of a school without a licence. The Supervision of Schools Law also regulates the conditions for granting a licence. In our case, it is possible to find provisions in the Supervision of Schools Law that allow the director-general of the Ministry of Education to exercise discretion with regard to the fate of the licence of the Beit Yaakov Girls’ School in Immanuel, which is a school that is subject to the Supervision of Schools Law, since it is a school in which more than ten students study or are educated on a regular basis and it provides primary education (see s. 12(a) of the law).

Section 32(a1) of the Supervision of Schools Law provides that if the director-general of the Ministry of Education is of the opinion that the prohibition of discrimination provided in s. 5 of the Student Rights Law has been violated, he may order the school in writing to close, after he has asked the licence holder in writing to remedy the situation within a reasonable time and after he has warned him that a failure to comply with the demand will result in an order being made to close the school. Here the word ‘may’ has become a duty, as has been explained (in another context) by the presiding justice, my colleague Justice E.E. Levy, unless the school expressly undertakes to comply with the provisions of the aforesaid s. 5 and de facto carries out its undertaking.

Section 30 of the Supervision of Schools Law allows the director-general of the Ministry of Education, or whomsoever it appointed for this purpose, as well as the health authority, to enter a school and its premises at any reasonable time in order to ascertain whether the provisions of the Supervision of Schools Law, the regulations enacted thereunder and the terms of the licence have been observed, and they may demand that the licence holder, or the headmaster of the school, shall provide any information that they need in order to carry out their duties under the aforesaid law.

It seems therefore that the current statute law allows the Ministry of Education to exercise all of its powers with regard to the licence of the Beit Yaakov Girls’ School in Immanuel. No more need be said on this subject.

Making the continued funding of the school conditional on the immediate cessation of the discriminatory policy

9.    Section 11 of the State Education Law, 5713-1953, provides:

‘The Minister may determine, in regulations, arrangements and conditions for declaring unofficial schools to be recognized schools, for introducing the core curriculum therein, for their management, supervision and state subsidy of their budgets, if the minister decides upon a subsidy and to the extent that he so decides.’

It would appear that this section, together with the regulations that were enacted under the State Education Law (the State Education (Recognized Schools) Regulations, 5714-1953) and the general powers that exist with regard to subsidies and funding, allow the director-general of the Ministry of Education to consider the question of the continued subsidizing of a school that adopts a discriminatory practice (see also r. 9 of the aforesaid regulations).

This is the place to point out that even the provisions of ss. 3A(i) and 3A(j) of the Budget Principles Law, 5745-1985, which paved the way for subsidizing and determining the character and status of strictly Orthodox Jewish education through the corporations of the Independent Education Centre and the Maayan Israel Torah Education Centre, cannot save the third respondent from the continued funding of the school being made conditional upon the immediate cessation of the discriminatory policy. Admittedly it has been held that the arrangement incorporated in the aforesaid provisions of the statute sought to equate the budgetary status of the schools of the aforesaid corporations with the status of the official schools that the state has the duty of maintaining (see HCJ 10808/04 Movement for Quality Government in Israel v. Minister of Education and Culture [38]), but the reasoning there was based, inter alia, on the fact that the subsidy should be given in accordance with objective, uniform and equal criteria like those for all children in Israel. Just as for all children in Israel it is inconceivable that the state will provide funding for ethnic discrimination, so too there is an inherent condition in the funding of the third respondent’s schools that it ensures that the prohibition of discrimination is not violated. This is the place to point out that the Special Cultural Schools Law, 5768-2008, is also not relevant to this case, since without discussing its substance and details, it applies to a ‘special cultural school,’ which is a school in which students study in the ninth to twelfth grades (whereas in our case we are dealing with students in a primary school), that has been recognized as such for the ‘special cultural group’ in it, as defined in the aforesaid law.

10. In conclusion, for these reasons, as well as the reasons cited by my colleagues, I agree that the order nisi issued in the petition should be made absolute.

In closing, I think it is superfluous to mention that the school that is the focus of the petition is called ‘Beit Yaakov.’ This name is derived from the well-known verse in the Book of Exodus, 19, 3 [45], which speaks of the giving of the Torah at Mount Sinai. The verse says: ‘... thus you shall say to the house of Jacob (Heb. Beit Yaakov), and speak to the children of Israel.’ Rabbi Shlomo Yitzhaki (Rashi) explains: ‘Thus you shall say — in this language and in this order: to the house of Jacob (Beit Yaakov) — these are the women... and tell the children of Israel — the men.’ From this we can see two things:

(a) The Torah was given to women first (see: A. Weinroth, Feminism and Judaism (2001), at p. 58).

(b) In this verse, a distinction was only made between Beit Yaakov and the children of Israel, and it follows that any other or additional distinction, including in a school that bears the name Beit Yaakov, involves prohibited and improper discrimination.

We should remember and remind ourselves that the approach is that all the children of Jacob are equal. The Midrash states:

‘Rabbi Yehoshua of Sachnin said in the name of Rabbi Levy: the names of the tribes are not given everywhere in the same order, but sometimes one order is used, and at other times another order is used, so that people will not say that because they are superior the names of the sons of the mistresses (i.e., Leah and Rachel) were given first, and the names of the sons of the maid-servants (i.e., Zilpah and Bilhah) were given afterwards, thereby teaching you that they are all equal.’

(Midrash Sechel Tov (Buber edition), Exodus, Introduction [46]).

 

 

Petition granted.

16 Av 5769.

6 August 2009.

 

Center for Jewish Pluralism v. Ministry of Education

Case/docket number: 
HCJ 4805/07
Date Decided: 
Sunday, July 27, 2008
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

Petitions, submitted following HCJ 10296/02 (hereinafter: the decision) and which concern the issue of the obligation to provide a “core studies program” in the secondary education recognized but unofficial institutions and in exempt secondary educational institutions, while properly implementing the findings of the decision handed down on the matter. This issue is related to the continual funding of educational institutions which did not prepare for implementing the core studies program and, if need be, to the establishment of an efficient supervisory mechanism for primary and secondary education. This ruling revolved around the operative aspects of the decision.

 

The High Court of Justice (in a decision by Justice A. Procaccia, joined by Justice Joubran and Vogelman) held that:

 

In the decision, the Court gave an absolute order, which applies to any educational institution, to terminate government funding to institutions that teach religious studies that do not meet the necessary requirements for recognition as “recognized institutions” which entitles them to funding. The decision was not implemented in time (by the 2007-2008 academic year) by the State and continues not to be implemented now, and the State even attempted to circumvent it.

 

Israeli law includes a statutory requirement to operate a core studies program in official educational institutions and in recognized unofficial institutions. Implementing a core studies program is directly and closely linked to government funding granted to the educational institution. Allocating state funds is subject to requirements of equality and reasonability and it must be guided by relevant considerations under clear and transparent standards. The principle of equality which applies on allocation of grants is a substantive equality which requires the equal treatment of those similarly situation and the differing treatment of those not similarly situated, according to the measure of their differences. Giving different treatment to individuals or to institutions that are not relevantly distinct constitutes prohibited discrimination and creates cause for judicial intervention. Differences in culture and religious belief do not in themselves justify discriminatory distinctions between groups. However, they may justified some increments in implementing a new arrangement which was designed to achieve equality. Still, such incremental change must be done in good faith and reasonability. The state continuing to fund recognized unofficial institutions that did not implement the core studies program does not pass the equality test and does not permit government funding to those institutions. Since the determinative date for applying the equality based policy in education in terms of implementing the core studies program and government funding to educational institutions has elapsed, it is proper to apply this equality based policy, at the latest, at the beginning of the 2009 school year. Thus, the public authority must effectively supervise the allocation of funds and the meeting of requirements according to its discretion.

 

In light of the above, the High Court of Justice considered issuing an absolute order in both Petitions, that would grant the desired relief in the Petitions in terms of application and implementation of the core studies program in all recognized unofficial secondary educational institutions in the ultra-orthodox community. However, after writing the decision it became clear that the Knesset had passed new legislation concerning these issues. Since this new legislative development was not examined here, no operative orders were granted.

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

HCJ 4805/07

HCJ 6343/07

 

1.                                                                      Petitioner in HCJ 4805/07:       The Center for Jewish Pluralism – The Movement for Progressive Judaism in Israel

2.                                                                      Petitioner in HCJ 6343/07:       The Organization of Teachers in Secondary Schools, Seminars and Colleges

 

v.

 

Respondents in HCJ 4805/07:   

1.     Ministry of Education

2.     Association of Yeshivot and Torah Institution Principals

3.     Nit'ei Torah Institutions in the Holy Land

 

Respondents in HCJ 6343/07:

1.     Ministry of Education – State of Israel

2.     Minister of Education

3.     Attorney General

4.     Association of Yeshivot and Torah Institution Principals

5.     Nit'ei Torah Institutions in the Holy Land

 

The Supreme Court sitting as the High Court of Justice

[27 July 2008]

 

Before Justices A. Procaccia, S. Joubran, U. Fogelman

 

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

 

 

Israeli Legislation cited:

State Education Law, 5713-1953.

State Education (Recognized Institutions) Regulations, 5714-1953.

Compulsory Education Law, 5709-1949.

Budgetary Principles Law, 5745-1985.

Inspection of Schools Law, 5729-1969.

Basic Law: Human Dignity and Liberty.

 

Israel Supreme Court cases cited:

[1]   HCJ 10296/02 Secondary School Teachers Organization v. Minister for Education [2005] IsrSC 59(3) 224.

[2]   HCJ 6427/2 Movement for Quality Government in Israel v. Knesset (2006) (unreported).

[3]   HCJ 5711/91 Poraz v. Chairman of the Knesset [1991] IsrSC 46(1) 299.

[4]   HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505.

[5]   HCJ 142/70 Shapira v. Bar Association Regional Committee [1971] IsrSC 25(1) 325.

[6]   HCJ 51/99 Shekem v. Director of Customs and VAT [2002] IsrSC 56(1) 112.

[7]   HCJ 53/96 H. Aloni Tishlovet Ltd.  v. Minister of Industry and Commerce [1998] IsrSC 52(2) 1.

[8]   HCJ 3782/95 'Bezedeq' Amutah v. State of Israel [1995] IsrSC 49(5) 362.

[9]   CA 371/78 Hadar-Lod Taxis Ltd.  v. Biton [1980] IsrSC 34(4) 232.

[10] CrimApp 4445/01  Gal v. Katzovshvili [2002] IsrC 56(1) 210.

[11] CrimA 578/78 State of Israel v. Issa [1982] IsrSC 36(1) 723.

[12] CA 4603/90 Gvirtzman v. State of Israel [1993] IsrSC 47(2) 529.

[13] HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General (2006) (unreported). 

[14] HCJ 11163/03 Chief Surveillance Committee for Arab Affairs in Israel v. Prime Minister of Israel (2006) (unreported). 

[15] HCJ 2599/00 Yated v. Ministry of Education [2002] IsrSC 56(5) 834.

[16] HCJ 4363/00 Upper Poriah Committee v. Minister of Education [2002] IsrSC 56(4) 203.

[17] HCJ 1554/95 "Friends of Gilat" Association v. Minister of Education and Culture [1996] IsrSC 50(3) 2.

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

[19] HCJ 421/77 Nir v. Be'er Yaakov Local Council [1978] IsrSC 32(2) 253.

[20] HCJ 6914/06 National Parents' Organization v. State of Israel (2007) (unreported).

[21] HCJ 2751/99 Paritzky v. Minister of Education (2000) (unreported). 

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

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

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

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

[26] HCJ 6778/97 Citizens' Rights Movement v. Minister of Internal Security [2004] IsrSC 58(2) 358.

[27] HCJ 59/88 HCJApp 418/88 Tzaban v. Minister of Finance [1988] IsrSC 42(4) 705.

[28] HCJ 727/00 Committee of Arab Heads of Local Authorities in Israel v. Minister of Construction and Housing [2001] IsrSC 56(2) 79.

[29] HCJ 3792/95 National Youth Theater v. Minister of Science and Arts [1997] IsrSC 51(2) 259.

[30] HCJ 8186/03 Tali Schools Educational Fund v. Ministry of Education [2005] IsrSC 59(3) 873.

[31] HCJ 6671/03 Abu Ganem v. Minister of Education [2005] IsrSC 59(5) 577.

 

For the petitioner in HCJ 4805/07 – E. Horwitz, Y. Shlein Ben Or.

For the petitioner in HCJ 6343/07 – S. Pe’il Shahar.

For respondent no. 1 in HCJ 4805/07 and respondents nos. 1-3 in HCJ 6343/07 – D. Zilber.

For respondent no. 3 in HCJ 4805/07 and respondent no. 5 in HCJ 6343/07 – M. Yanovski.

For the parties requesting to join the proceedings (Minister Eli Yishai, MK Yaakov Ratvitz and MK Moshe Gafni) – A. Glass.

 

JUDGMENT

 

Justice A. Procaccia

Background

1.  The state education system in Israel is designed to achieve various objectives that underlie the set of social, national and humanitarian values constituting the foundation of the ideological existence of the State (s. 2 of the State Education Law, 5713-1953 (hereinafter: "State Education Law")).  State education refers to education provided by the State according to a curriculum of studies determined for the official educational institution, which is designed to achieve the said educational goals.  In the framework of the overall curriculum, there is a "basic curriculum", which is a compulsory curriculum applying to every official educational institution.  The basic curriculum encompasses the hard core of content and values that every official educational institution must impart to its students.  The official educational institutions are wholly funded by the State or by one of its organs, and the State is responsible for imparting state education in these institutions in the framework of a curriculum, including the "basic curriculum".  Non-official recognized institutions operate alongside the official schools, and these are not supported by the State.  These institutions seek to impart to their students educational content that is compatible with the value systems that the institutions wish to promote.  At the same time, a balance is required between this content and between the hard core of the general educational values that must be taught in these institutions as well.  The law authorizes the State to determine the conditions for recognition of these institutions, to implement a basic curriculum in them, and to set the level of State support for their budgets (s. 11 of the State Education Law).  Amongst the conditions for recognition of a school as a non-official recognized institution is the existence in the school of a "basic curriculum" (s. 3(a)(1a) of the State Education (Recognized Institutions) Regulations, 5714-1953 (hereinafter: "State Education Regulations").  The basic curriculum in recognized institutions must constitute at least 75% of the hours of study in an official educational institution, unless a different level has been approved under certain conditions (reg. 3(c) of the State Education Regulations).  Where the said condition concerning the basic curriculum has been fulfilled, the State participates in the budget for teaching hours of a recognized institution at the rate of 75% of teaching hours of a similar official institution, subject to various reservations (reg. 9 of the State Education Regulations).

"Exempt institutions" are a third type of educational institution, in respect of which the Minister of Education is authorized, under certain circumstances, to exempt a pupil from the obligation of regular study at a recognized educational institution (sec.  5(a) of the Compulsory Education Law, 5709-1949 (hereinafter: "Compulsory Education Law")).  The question of the obligation to introduce a basic curriculum in an exempt institution as a condition for receiving state funding also arises in the framework of our present discussion.  According to the policy of the competent authority, exempt institutions, too, are required to implement the core curriculum to a certain extent as a condition of receiving state funding.

2.  Our concern in this proceeding is with the degree of enforcement of the obligation to implement the "core curriculum" in non-official recognized schools in the ultra-Orthodox sector, particularly at the secondary level.  This issue is bound up with another question, viz.  what is the legal situation in relation to continued state support of the budgets of educational institutions that do not fulfill their statutory duty to incorporate into their schools the basic curriculum or the "core curriculum", as it is called by the policy-makers in the Ministry of Education.  Another question arises as well: what is the fate of the proposal of the competent authority to convert recognized institutions into exempt institutions, as a means of allowing the continuation of state funding for those schools without imposing upon them an obligation to incorporate the core curriculum into their schools.  These issues are bound up with the judgment handed down by this Court several years ago, in which it ordered the obligatory incorporation of the core curriculum in the recognized schools in the ultra-Orthodox sector beginning in the 2007-8 academic year, as a condition for the continuation of government funding for those institutions (HCJ 10296/02 Secondary School Teachers Organization v. Minister of Education [1] (hereinafter – the judgment in the first proceeding).

The Petitions

3.  Two petitions have been filed: the petition of the Centre for Jewish Pluralism – The Movement for Progressive Judaism in Israel (hereinafter: "the Movement"), and the petition of the Organization of Teachers in Secondary Schools, Seminars and Colleges (hereinafter: "Teachers' Organization").  The petitions are directed at the Ministry of Education and the Minister of Education, the Attorney General, and at the Association of Directors of Yeshivot and Torah Institutions, and the "Nitei Torah" Institutions in the Holy Land.  (R. Eliyahu Yishai, Deputy Prime Minister and Minister of Industry, Science and Culture, and MK's Rabbi Litzman and Rabbi Gafni, requested to join the petition.)

4.  The petitions turned primarily on the implementation of the core curriculum of the Ministry of Education in the secondary educational institutions in the ultra-Orthodox sector.

The Movement petitioned for a core curriculum to be set immediately for the ultra-Orthodox sector; this curriculum should be compulsory for the secondary non-official recognized institutions and exempt institutions, and implementation of such a curriculum in this sector should constitute a condition for the continuation of funding for these institutions.  The petition also sought an order that government funding for any non-official recognized institution and any exempt institution at the primary level that does not teach the core curriculum, or that does not teach it for the number of hours required by the competent authority, be terminated or reduced accordingly.  Remedy by way of relative reduction of the budget of primary educational institutions that teach the core curriculum at a level lower than 100% was also sought.  Additional remedy sought referred to the need to set up an effective inspection mechanism for primary and secondary education, to be implemented immediately, which would systematically check the extent of compliance of all the non-official, recognized institutions and exempt institutions with the requirement to implement the core curriculum in their schools.

The petition of the Teachers' Organization turned entirely on the remedy for non-compliance with the judgment in the first proceeding.  As stated in the present petition, in that judgment a decree absolute was issued, which took effect at the beginning of the 2007-8 academic year (September 2007).  Under the decree, all allocations to recognized institutions that teach religious studies, but which do not fulfill the conditions and the criteria set by law for receipt of state funds, will be cancelled.  According to the petition, immediate action must be taken to apply the provisions of this decree.

5.  On 25.9.07, after hearing the arguments of the litigants, we issued a decree nisi for the remedy sought in the petition of the Teachers' Organization, and a similar decree with respect to the petition of the Movement, insofar as it involved the remedies sought in the petition, other than the remedy in respect of the relative reduction of funding for primary education in accordance with the level of implementation of the core curriculum in each institution.

Our concern, therefore, is with two main subjects: first, the issue of the obligation to implement the "core curriculum" in secondary education in non-official recognized educational institutions and in exempt secondary institutions, with the appropriate application of the decisions in the judgment handed down on this matter.  This issue is connected to the continued funding of the educational institutions that were not and are not set up even at present, to implement the core curriculum.  The second area is the necessity of setting up a mechanism for effective oversight of primary and secondary education that will operate continuously, and will carry out routine checks of the degree of compliance of all the non-official recognized educational institutions and all the exempt institutions with the provisions of the Law and with the judgment in the first proceeding.

The Background to the Petitions

6.  The two petitions were filed against the background of the judgment handed down in the petition of the Teachers' Organization, which had sought a cancellation of the financial allocations granted by the State to non-official recognized institutions that taught only religious studies.  In that matter, the Teachers' Organization argued that these institutions do not fulfill the conditions set by law for the purpose of their recognition, since they do not teach the "basic curriculum", i.e. the core curriculum, which contains basic educational values to which every child in Israel must be exposed in the course of his studies at the primary and secondary levels, irrespective of the social sector to which he belongs.  In the framework of that petition, the Court was asked to order the secondary educational institutions in the ultra-Orthodox sector to implement the core curriculum of the Ministry of Education beginning in September 2004, or alternatively, to order the State to reduce the financial allocations to institutions that do not teach the core curriculum to the level of funding allocated to the exempt institutions.  The Supreme Court (Justice E.E.  Levy, with President Barak and Justice Joubran concurring), made the following main points:

7.  Under s. 3A of the Budgetary Principles Law, 5745-1985  (hereinafter: "Budgetary Principles Law"), proper budgetary procedures based on the principles of equality and transparency must be followed in the funding of public institutions that are not managed by State authorities.  This rule was valid by virtue of general legal and juridical principles even prior to the enactment of the said statutory provision.  The transfer of funds to a particular institution is subject to the conditions designed to achieve the objectives of the allocation.  In this case, the financial allocations to the educational institutions must achieve the objectives of the State Education Law and the arrangements by virtue thereof.  The transfer of funds to institutions that do not fulfill the basic conditions specified by law or the objectives of state education constitutes a deviation from the authority of the Ministry of Education, and a breach of the fiduciary duty of the public authority to the public.  The funding of educational institutions that do not meet the requirements of the law and the regulations in the said sense is cause for concern about violation of the principle of equality, and about unlawful discrimination between institutions that uphold the law and those that do not (para. 15).  The Court determined that in practice, there is a core curriculum that is implemented in the official secondary schools, but it has not been anchored in regulations, no mechanism has been devised for its incorporation into ultra-Orthodox schools, and there is no oversight of its implementation.  It also determined that the funding of institutions that do not implement the core curriculum is tainted by ultra vires.  On the other hand, it determined that a core curriculum suited to the ultra-Orthodox educational institutions has not yet been prepared, and that inspection and enforcement mechanisms have not yet been set in place for this purpose (para. 17).  In these circumstances the State requested an extension of three years in order to allow it to complete the implementation of the program in the entire primary and secondary educational system.  In its response to the petition, the State worded this request as follows:

       'To set a period of three years from now, i.e. until the 2007-8 academic year, for the preliminary implementation of the core curriculum in the primary schools, to study the lessons learned from the said implementation, to intensify the said implementation in the framework of wide sectors, to internalize the said idea, to refine the inspection and supervisory mechanisms at all levels, to complete the formulation of the requirement of eligibility for matriculation as a preliminary condition … to formulate a core curriculum for the intermediate levels and for the secondary schools, to maximize the attempt to reach understandings with the various sectors that are being asked to undergo fundamental changes of life-style with respect to something that touches their very souls, i.e. the education system, to formulate a core curriculum that is offered to the intermediate and secondary schools – is extremely reasonable, and does not seem to the respondents to be in any way excessive.'

8.  The Court examined the ramifications of the request of the State for the said extension in light of the criterion of reasonableness.  It determined that even though the competent authority had overstepped its authority in channeling funds to educational institutions that do not implement the core curriculum, it ought to be allowed to correct the defect in a balanced, considered manner, even if this requires an additional reasonable period of time.  In the end, the Court issued a decree absolute ordering the respondents "to cancel the allocations to the institutions that teach religious studies and that do not fulfill the conditions and the criteria set by law for recognition of 'recognized institutions', which would entitle them to financial allocations".  The Court further ruled that the decree would take effect after three years, i.e. in the 2007-8 academic year (hereinafter: the decree absolute) (para. 20 of the judgment).  The date on which the decree absolute would take effect was deferred in consideration of the need to allow the Ministry of Education and the Minister of Education to complete the process upon which they had embarked according to a schedule that they themselves set, and which they asked to Court to adopt.  The Court found that under the circumstances, a period of three years, as requested by the State, did not deviate from the bounds of reasonableness.  The rationale for this determination of the Court is found in the following words of Justice Levy:

     'The remedy sought by the petitioner – cessation or significant reduction of the funding to institutions that do not teach the core curriculum – is one which is designed to punish, in a certain sense, those who have not sinned.  As explained above, no instructions have yet been issued to the ultra-Orthodox institutions concerning the program that they are supposed to implement, except for a warning that in the future they will be asked to comply with new requirements.  The responsibility for this omission lies at the doorstep of the respondents, who have admitted the problem and given us a detailed description of the steps that they have taken, are taking and will be taking in order to bring their actions into line with the statutory provisions.  The respondents have already begun to apply those remedies that the petition seeks: the formulation of a core curriculum and its implementation in recognized institutions, including educational institutions in the ultra-Orthodox sector.  This curriculum will constitute a criterion for receipt of funds, after completion of the preparatory work.

     …

     In relating to the problem of funding, the respondents considered the need to impart values of tolerance and mutual respect, through cooperation and not by coercion.  They formulated a curriculum that would not only make demands of the ultra-Orthodox education system, but that would also supply the necessary resources (teacher training, preparation of educational materials etc.) in order to meet the conditions that will be set.  In fixing a time-table for formulating and implementing the core curriculum for secondary education, the respondents attempted to find a solution through dialogue and the establishment of a suitable supervisory mechanism.  The respondents supplied satisfactory answers to the question of why they need the requested period of time in order to complete the preparation and implementation of the core curriculum in the secondary school system.  Here it must be emphasized that the program is one that will apply to 26,000 students in institutions that until now have enjoyed pedagogical autonomy.  Considering the complexity of the task and the sensitivity required to carry it out successfully, it appears to us that the time-table set by the respondents is characterized by sensible, gradual steps and not by procrastination, and the seriousness of their intentions can be seen from a similar process that they conducted, which has already led to the successful implementation of the core curriculum in the primary schools.

     Even if there has been some delay, we must not ignore the fact that the respondents took upon themselves to effect a far-reaching change in the education system – a system that since the establishment of the State has juggled between the need to respect the didactic autonomy of each of the various sectors in Israel, and the need to provide an education that would prepare each boy and girl for a life of communality in a pluralistic state.  Since a decision has been made to recalibrate the balance, with the aim of bringing the various sectors closer together, and to instill in them common basic values, this change must be made with great sensitivity in order to preserve the delicate system of relations that exists between the various sectors in Israeli society' (ibid, at pp. 238-240) (emphasis added).

 

With the Passage of Time

9.  The years passed, and the extension period that had been granted for the decree absolute to take effect elapsed.  The 2007-8 academic year began, but the core curriculum was not implemented to the full extent required in secondary education in the ultra-Orthodox sector.  Several months prior to the start of the 2007-8 academic year, the Movement asked the Minister of Education to clarify whether the process of preparing the core curriculum for secondary education had been completed, what were the procedures for introducing the curriculum into all the ultra-Orthodox institutions, and how was the Ministry set up for overseeing the implementation.  On 20.5.07, the petitioner received the response that the secondary school core curriculum was in an advanced stage of preparation in anticipation of the 2007-8 academic year.  It was noted, however, that no special resources had been allocated for introducing the core curriculum into primary education, and no resources would be allocated for introducing the program into secondary schools.  With respect to inspection, the Ministry referred only to primary education, and mentioned that no new supervisory mechanisms had been established, and that the inspectors, including those dealing with the ultra-Orthodox sector, check the implementation of the core curriculum in the primary schools.  Against the background of this response, and concerned that the Ministry of Education did not intend to comply with the decree absolute that was issued in the case of the Teachers' Organization and with the declarations that it made in that proceeding, the Movement filed the petition that is the subject of this proceeding.  The Teachers' Organization also turned to the Ministry of Education with similar questions about two months before the decree absolute took effect, but it received no substantive response.  Hence its petition.

The Petitions

The Petition of the Movement

10.  The main argument of the Movement is that the Ministry of Education did not act in accordance with the judgment in the first proceeding.  At the secondary school level, the Ministry did not by any means complete the task of preparing the core curriculum, and hence no steps were taken to introduce it, and the Ministry did not initiate the inspection necessary to reduce the transfer of funds to institutions that did not meet the statutory requirements, as the State had undertaken to do in the first proceeding.  At the primary school level, the core curriculum was implemented, but the Ministry of Education is not carrying out any inspection to check whether the curriculum is indeed taught in all the educational institutions, and no appropriate supervisory mechanism is being carried out for this purpose with respect to recognized institutions and the exempt institutions.  According to the petitioner, the Ministry is aware of scores of primary schools that are not implementing the core curriculum as required by the level of funding that they are receiving, and it is not taking the steps that this entails, i.e. reduction or cancellation of continued State funding of those institutions, in accordance with the level of incorporation of the core curriculum in their frameworks.

According to the Movement, there are only two Ministry of Education inspectors overseeing approximately 800 non-official recognized primary and secondary institutions, encompassing about 200,000 pupils.  This is an unreasonable number of positions with which to achieve the objective of the inspection, and it does not allow for suitable oversight required in the statutory allocation of public funds.  This is evident in light of the difference between the number of positions allocated for inspectors for the official institutions as opposed to the recognized institutions.  In the exempt institutions, not even one position is allocated for an inspector, even though substantial sums of money are transferred to these institutions.  Guidelines for regulating the frequency and mode of inspection are lacking, and there is no data bank concerning inspections that have been conducted.

The Movement contends that the conduct of the Ministry of Education, which grants funding to educational institutions that do not meet the statutory requirements, is contrary to the principle of equality anchored in the very foundations of the legal system, and it is contrary to the provisions of s. 3A of the Budgetary Principles Law.  The discrimination that is caused by this funding is two-fold: first, the non-official schools receive preferential treatment vis-à-vis the official schools, in that they receive public money even though they do not fulfill the basic conditions that apply to the official schools; secondly, the pupils in the non-official schools are the subjects of adverse discrimination vis-à-vis the pupils in the official schools, in that they are not taught the basic curriculum that is designed to impart to them values of general basic education, which are essential for every person for the purpose of integration into society in adulthood.

It was also argued that the procrastination of the Ministry of Education in implementing the core curriculum in the ultra-Orthodox sector constitutes, first and foremost, a violation of the decree absolute issued in the judgment in the first proceeding, with all the ramifications from the perspective of the obligation to comply with orders of the court.  Furthermore, the conduct of the Ministry of Education involves a violation of an administrative obligation to act to implement policy within a reasonable time; it is also detrimental to the welfare of hundreds of thousands of pupils who are not receiving basic general education due to considerations alien to the type of relevant consideration that ought to be taken into account.

The Petition of the Teachers' Organization

11.  The Teachers' Organization, too, objects to the non-compliance of the Ministry of Education with the judgment handed down in the first proceeding.  It claims that the response of the Ministry of Education to its questions causes concern that on the one hand, the respondents have taken no action to implement the core curriculum in the ultra-Orthodox institutions, and on the other hand, the Ministry of Education has no obvious intention to desist from transferring funds to those institutions, in direct violation of the decree absolute that was issued in the judgment.  Moreover, violation of the decree absolute detracts significantly from the budgetary pool of the recognized educational institutions that do fulfill the conditions of the core curriculum, and thus discriminates against them.  The conduct of the Ministry of Education causes a budgetary deficit for those who follow the rules, and benefits those who do not.  Non-intervention in the present situation at the judicial level is liable to perpetuate the intolerable situation of allocation of state funds, in huge amounts, for the benefit of non-official institutions that are not inspected and that refrain brazenly from implementing the core curriculum, contrary to the principles of state education.  It also perpetuates the inequality created thereby, which is contrary to the basic principles of a democratic regime.  Ignoring the obligation of the Ministry of Education to be diligent in its compliance with the law and with the orders of the court is a flagrant violation of principles that are embedded deep within the Israeli legal system.  The Teachers' Organization requests, therefore, that the State be ordered to comply immediately with the directives of the judgment in the first proceeding.

The Position of the State

12.  The preliminary response of the State was submitted by way of deposition of the Minister of Education, Prof. Yuli Tamir.  The position of the State is that the petition should be denied.

Regarding the primary schools, the State argues that there is no real basis for the petitions.  As a rule, the core curriculum is implemented in the primary schools in the ultra-Orthodox educational sector, both in the non-official recognized institutions, at a minimum level of 75%, and in the exempt schools, at a minimum level of 55%.  The institutions of primary education of these types that do not comply with the said required minimum will not be funded in future.  The non-official recognized institutions that do not meet the requirement of 75% of the basic curriculum will be funded like exempt institutions, provided that they teach at least 55% of the basic curriculum.  The Ministry intends to increase the implementation of the core curriculum, as well as inspection of its implementation, at the primary level.

At the same time, the State requests that a "caution" – in its words – be attached to the data.  According to the State, the data available to it at present is based on the reports of the institutions and on the inspection system in its present format; this includes only three permanent inspectors and four instructors, who have to inspect some 500 non-official recognized institutions with around 145,000 pupils.  The present inspection system, says the Minister, is inadequate, which naturally affects the credibility of the data.  The Minister intends to take action, beginning with this academic year, to incorporate the core curriculum into primary education, and to increase the inspection significantly.

According to the data of the Ministry of Education, implementation of the core curriculum at the level of primary education in the 2006-7 academic year was at the following levels: the overall level for the non-official recognized institutions stood at the minimum of 75% of the core curriculum; the vast majority of these institutions (411 out of 503) implemented the full core curriculum.  Forty-nine ultra-Orthodox institutions in the Center for Independent Education and Ma'ayan Hahinukh Hatorani received full funding even though they did not teach the full core curriculum.  The Minister announced that beginning in the coming academic year – 2007-8 –  the Ministry of Education will fund institutions strictly in accordance with the level of implementation of the core curriculum; the funding of institutions that teach only part of the core curriculum will be reduced proportionately.

13.  Regarding the secondary schools: The Ministry of Education completed the core curriculum for secondary schools, and it was transmitted to all the secondary schools soon after the commencement of the 2007-8 academic year (29.8.2007).  The Director General's Bulletin in which the core curriculum was published (2008/3(a), 3.1-30) pointed out that the core curriculum applies to all the pupils in the secondary school system, in all sectors and streams, and that it is a preliminary condition for receiving state funding.  In the official educational institutions, pupils must study the core curriculum in its entirety.  In the non-official recognized institutions, the pupils must study at least 75% of the core curriculum, and they must reach a level of achievement that is normal in the official educational institutions.  Reaching the level of achievement required in the recognized, official educational system will be checked, inter alia, by means of the METZAV [Hebrew acronym for "School Effectiveness and Growth Indices"] tests and the matriculation exams.  Schools that teach at least 75% of the core curriculum will be funded in accordance with the level at which the core curriculum is taught.  Educational institutions that teach less than 75% of the core curriculum will not be considered recognized institutions, and they will not receive funding as such.  It was further pointed out that "in exceptional cases, it is possible to receive an exemption from core curriculum studies at the secondary level by virtue of s. 5 of the Compulsory Education Law, 5709-1949.  Guidelines concerning applications for exemptions will be published separately".

14.  According to the Ministry of Education, ultra-Orthodox secondary educational institutions for girls comply, for the most part, with the requirements of the core curriculum, and efforts to further entrench the core curriculum in this sector will continue.  The problem focuses on the "yeshivot ketanot" – the secondary day schools for boys in the ultra-Orthodox sector (hereinafter: "yeshiva day schools").  These are non-official recognized institutions.  The State admits that the pupils of these yeshiva day schools devote their entire day to religious studies only, in keeping with the accepted religious value-system in the ultra-Orthodox world, and that these institutions do not meet the requirements of the core curriculum.

15.  The Minister of Education has announced that at this time, the Ministry of Education is not able to change the reality in which the yeshiva day schools refuse to adopt the core curriculum.  According to the Minister, introduction of the core curriculum must be effected by means of persuasion and not coercion, since the process is a social, cultural one involving a change from a long-standing tradition dating back to the establishment of the State.  The Ministry of Education prefers to proceed gradually in introducing the core curriculum into secondary schools for boys in the ultra-Orthodox sector, by way of continuous dialogue, similar to the manner in which the core curriculum was introduced into the primary education system, and into the secondary school system for girls.  This comes from recognition of the right of sectors who follow particularistic life-styles to preserve their identity and their cultural and religious particularity, and from recognition of the importance of religious studies for the ultra-Orthodox community, and from the "overall balancing out of social benefit versus harm" and the many advantages of a consensual arrangement in relation to the introduction of educational programs.  The operative proposal of the Minister of Justice is to adopt a special legal model in relation to yeshiva day schools – an "exemption model" – the details of which will be elucidated below.  This model, according to the Minister, is compatible with the law and with the judgment in the first proceeding.  The State proposes adopting this model for a period of two years, after which the policy of the Ministry will be reviewed.

16.  The "exemption model" proposed by the Minister of Justice is a program which, according to her approach, would allow those yeshiva day schools that are interested, and that meet certain criteria, to be classified as "exempt institutions"  by virtue of s. 5(a) of the Compulsory Education Law.  This provision allows the Minister of Education to exempt pupils from the requirement of regular compulsory education in a recognized institution mandated by s. 4 of the Law.  According to the Ministry of Education, once the exemption has been granted to pupils of the yeshiva day schools, it will be possible to fund them at the level of 55% of the funding of official schools, even if they do not teach the core curriculum in their institutions at all.  The main conditions set by the State for granting exempt status to yeshiva day schools are that their curriculum should not be incompatible with the laws of the State of Israel and its values, and that it should be in keeping with the principles of the Declaration of Independence; that the learning arrangements should be systematic and organized, and that the physical conditions of study should be appropriate and safe (para. 64 of the deposition of the State).  The State also points out that those educational institutions that are granted exempt status will still be subject to the Inspection of Schools Law, 5729-1969 (hereinafter: "Inspection Law"), and will require licensing by virtue thereof.

17.  The State mentions in its deposition that it is aware of the ramifications of this step, in the wake of which an absolute exemption from the core curriculum will be granted to tens of thousands of pupils each year.  According to the State, the existence of a large number of pupils who are not exposed to the core contents, and are not educated to values of Zionism and democracy, has future problematic consequences for the character of Israeli society.  Therefore, its basic position is that the core studies, which help in the realization of the state educational objectives, should be continued and expanded to as many age groups and as many sectors as possible.  At the same time, it estimates that at this time, it is not possible to apply the core curriculum to all the pupils in the yeshiva day schools, and that this is a decree with which the ultra-Orthodox sector would be unable to comply.  Hence, according to the Minister of Education, the decision to establish an exemption track, which at this stage is planned for two years, is a legitimate policy decision that falls within the realm of reasonableness, and it solves a possible contradiction between the requirements of the law and the demands of life.

18.  The State argues further that the reasonableness of the decision is enhanced in view of the "second chance" program that the Ministry of Education is conducting.  This program is designed to enable a person who has not realized his right to receive basic education in the course of his studies in the primary and secondary education systems, to receive such education, at State expense, when he reaches adulthood, until the age of 30 years.  In the framework of this program, pupils are able to realize their right to studies at the secondary level, and to present themselves for matriculation.

19.  Finally, the State argues that in various situations, this Court has acknowledged the need for a gradual, slow and long process in order to bring about appropriate societal change, and it has refrained from ordering such change by way of decrees and coercion.  An example of this is the matter of compulsory military service for Talmudic Academy students (HCJ 6427/2 Movement for Quality Government in Israel v. Knesset [2]).  In the present case, religious study is a supreme value in ultra-Orthodox society, one which constitutes the very basis of the value system of the ultra-Orthodox community.  Cessation of Torah study for any purpose whatsoever, including for the purpose of secular study, involves serious damage to the root of the belief system and the way of life of the ultra-Orthodox community.  Therefore, such a fundamental change must be introduced gradually, the aim being to reach consensus and avoid coercion –  similar to the approach that was adopted in the matter of enlisting Talmudic Academy students into the Army.

The Response of the Representatives of the Ultra-Orthodox Primary Education System

20.  Initially, the petition was directed against the special institutions of education – the Center for Independent Education and Ma'ayan Hahinukh Hatorani – as well as the State.  Ma'ayan Hahinukh Hatorani stated in its response that it approves of the institution of a core curriculum, and that it implements it in practice in all its schools.  In most of the institutions of this organization, the curriculum is taught in its entirety.  Its pupils participate on a regular basis in the METZAV exams that test indices of effectiveness and growth in schools, in full collaboration with the Ministry of Education, and their achievements are not inferior to those of the pupils in the official education system.  At the same time, Ma'ayan Hahinukh Hatorani disagreed with the approach of the State, whereby the full funding of special institutions is contingent upon full implementation of the core curriculum.  The Center for Independent Education objected to the objective of the petitions, i.e. the reduction of funding of the ultra-Orthodox educational institutions.  On 25.9.07, with the agreement of the litigants, we ordered that these respondents be removed from the petition. 

The Position of the Representatives of the Ultra-Orthodox Secondary Education System

21.  On 11.12.07 we granted the request of the representatives of Nit'ei Ora Institutions in the Holy Land (hereinafter: Nit'ei Ora Institutions) to join as a respondent to the petition.  Nit'ei Ora Institutions is an association of five yeshiva day schools.  According to the Nit'ei Ora representatives, this association also represents dozens of ultra-Orthodox educational institutions, including other yeshiva day schools, for which it speaks.  According to the representatives, the judgment in the first proceeding does not apply to yeshiva day schools and does not bind them, since they were not a party to that petition and their position was not heard.  Moreover, the yeshiva day schools did not receive notice from the Ministry of Education concerning their obligation to incorporate the core curriculum in their institutions until after the opening of the present academic year – 2007-8 – on 18.9.7, when the ultra-Orthodox press carried an announcement of the Ministry of Education of the intention to withdraw licenses of secondary schools that do not implement the core curriculum.  They argue that a change of such significance must be brought to the notice of the educational institutions no later than 31 May of the preceding year, which is the last date at which teachers can be informed of their dismissal before the forthcoming academic year.

22.  The Nit'ei Ora Institutions argue that the spiritual values of the yeshiva world deserve recognition and respect from the State institutions, and the curricula that they teach should be recognized as satisfying the objectives and the requisite needs of secondary school pupils in the yeshiva day schools.  They should not be required, and certainly not forced, to implement the core studies that are taught in the state schools, at any level whatsoever.  Some differentiation in funding between secondary schools, based on the percentage of their students who matriculate, is already in place.  The gap in funding according to the number of weekly hours per student between a school that presents its pupils for a full matriculation, and a school that teaches religious studies, stands at about 37%.

23.  The Nit'ei Ora Institutions contend that the proposal to classify the yeshiva day schools as exempt institutions is neither appropriate nor acceptable.  Not only could it place the yeshiva day schools "beyond the pale", but the said classification as exempt institutions is detrimental to the rights of the yeshiva day school pupils and their teachers.  The yeshiva day schools encompass approximately 25,000 pupils, whose school day extends over at least twice the number of hours that are the norm in the official secondary schools.  The damage that is likely to be caused to the yeshiva day schools from implementing the exemption program is great.  It extends beyond the reduction to 55% of the total funding that is allocated to a school implementing the full core curriculum, for it means that other state institutions which help in funding the various activities of the non-official recognized institutions, such as the Ministry of Welfare which supports children in boarding schools, will withdraw their support.  Thus, for 6,500 pupils with special needs, no solution will be provided in the framework of the exempt institutions.  Teachers' wages are also likely to suffer significantly.  According to the argument, it is not for nothing that the yeshiva day schools have refrained from applying to change their status to that of exempt institutions, and it should be assumed that they will refrain from submitting such applications in the future as well. 

24.  On 30.10.07 we granted the application of the Association of Yeshivot and Torah Institution Principals (hereinafter: "the Association") to join as a party to the proceedings.  This Association incorporates most of the yeshiva day schools in Israel (see the letter of the Association to the Minister of Education, dated 22.11.07, R/11 of the State's deposition of 9.12.07).  The Association did not file a separate response on its own behalf.

25.  On 23.12.07 a motion was filed on behalf of the Deputy Prime Minister, Eli Yishai, Chairman of the Shas Party, and on behalf of MK's Rabbi Yaakov Litzman and Rabbi Moshe Gafni, leaders of the Torah Judaism Movement (comprising Agudat Yisrael and Degel Hatorah), to join the petition as respondents.  In their response, they noted that the Association cannot respond to the petitions, for it is not authorized to do so, and they asked to serve as a mouthpiece for the yeshiva day schools.  They did not join the proceeding officially, but we allowed them to submit their arguments in writing and orally, as follows:

They object to the fact that the judgment in the first proceeding, which radically changes the order of things that has prevailed for decades, was handed down without the position of the yeshiva day schools having been heard.  At the same time, so they say, what has been done cannot be undone.  Therefore, the focus must be on the dire straits in which the yeshiva day schools have found themselves since the beginning of the 2007-8 academic year.  These institutions first heard of the judgment in the first proceeding, and of the intention of the Ministry of Education to make the renewal of licenses and of their funding conditional upon implementation of 75% of the core curriculum in their institutions, about three weeks after the opening of the academic year (on 18.9.07).  When the Ministry of Education became aware of the problematic situation, it proposed the temporary exemption track for a period of two years.  Even though this proposal is preferable to the total cancellation of government funding, it still contains serious drawbacks that jeopardize the ability of the yeshiva day schools to continue to function.  The model proposed by the Ministry of Education reduces the allocations to the yeshiva day schools significantly, even though many of them were already suffering from significant financial hardship.  If the Ministry of Education wished to reduce the rate of funding of institutions that do not implement the core curriculum, it should have given warning of this before the 2007-8 academic year, and in any event no later than 31.5.07, which is the determinant date with respect to the dismissal of teachers and making the necessary arrangements for reducing the hours of study.  The Court is therefore asked to order that funding of the yeshiva day schools in the 2007-8 academic year continue at the same rate as in the previous academic year, and as normal in the non-official recognized educational institutions.  According to the applicants, in the coming months the representatives of the yeshiva day schools and the ultra-Orthodox parties will be meeting with the Ministry of Education in the hope of agreeing upon a format for operating the yeshiva day schools in the future.

The Position of the Petitioners with Respect to the Response of the State

26.  The Movement argues that the "exemption model" proposed by the Ministry of Education has no legal basis.  Obligating certain educational institutions to teach the core curriculum, and granting an exemption from the core curriculum to a certain type of institution, is a serious violation of the principle of equality.  This should be seen as an abdication by the State of its obligation to grant the pupils of the yeshiva day schools a basic education, which constitutes a violation of the dignity of these pupils in that it denies them fundamental, general educational values.  This denial is a result of an administrative decision, and as such it does not meet the conditions of the limitation clause in Basic Law: Human Dignity and Liberty.  The creation of an exemption track is contrary to the basic conceptions that underlay the funding of educational institutions up till this point, and it constitutes a radical change in the consistent policy of the Ministry of Education on the subject of the core curriculum; moreover, it involves a deviation from the judgment in the first proceeding.  In view of the above, the exemption track is tainted with extreme unreasonableness.  The unreasonableness of this exemption track, which was seemingly designed for the purpose of dialogue with the ultra-Orthodox sector, is even greater in view of the length of time that has elapsed since the handing down of the judgment in the first proceeding – a period which was not properly utilized for the purpose of conducting dialogue as aforesaid. 

With respect to inspection of implementation of the core curriculum, the Movement argues that the Ministry of Education must produce a workable plan, with adequate budgetary coverage, that will increase significantly the number of inspectors in the non-official institutions.  A declaration of intention to increase inspection will not be considered sufficient if it is not backed up by practical arrangements.

All the above notwithstanding, the Movement announced that since the proceedings in this petition lasted well into the 2007-8 academic year, for practical reasons it would not object to a deferment of the execution of the judgment in the first proceeding until the beginning of the 2008-9 year, in order to allow the remaining time to be utilized for incorporating the core curriculum into the ultra-Orthodox educational institutions, and to arrange for inspection of its implementation.  This would have to be completed within a preset time frame, and the Court would have to be updated on the progress on the execution of the judgment.

The Teachers' Organization raised similar arguments relating to the position of the State.  Following the hearing, a decree nisi was issued, as detailed  above.

Additional Deposition of Response on Behalf of the State

27.  In response to the decree nisi that was issued in the petition, the Minister of Education announced that at present, only a few institutions had applied to the Ministry of Education to transfer to the exemption track.  From exchanges that took place between the leaders of the ultra-Orthodox community and the Minister of Education, it became clear, so said the Minister, that the ultra-Orthodox sector was having trouble accepting the temporary exemption track at this time, despite the fact that according to the Minister, and as evident from the attached protocol of the discussion of 19.9.07, this track was devised with the full consent of the leadership of the ultra-Orthodox community.  The Minister points out in her deposition that she considered the arguments that were raised, primarily the arguments of the leadership of the ultra-Orthodox community relating to the late date at which they were informed of the judgment in the first proceeding and the substantive difficulty in getting organized during the present year for the changes entailed by the modification of their status from non-official recognized institutions to exempt institutions, even though the exemption track had been devised with their complete agreement.

The Minister noted in her deposition that with a heavy heart, she decided to accede to the request of the ultra-Orthodox leadership and to defer the application of the temporary exemption track until the beginning of the 2008-9 academic year, subject to the approval of this Court.  In light of this, she asks to defer execution of the judgment in the first proceeding until the end of the 2007-8 academic year, in a manner that will enable the ultra-Orthodox secondary educational institutions to retain the status of recognized institutions, and to continue receiving full funding as institutions with this status.  The temporary exemption track, according to the plan, will begin to operate in the 2008-9 academic year.  This means, in practice, that the ultra-Orthodox educational institutions will be given a period of a year in order to organize themselves for the transfer to the exemption track. 

The Minister again stressed her unequivocal professional position supporting the incorporation of the core curriculum in the ultra-Orthodox sector, and pointed out that this is the objective of the proposal for a two-year exemption track, which involves the intention to hold talks concerning incorporation of the core curriculum into the yeshiva day schools.

Updated Position of the Parties

28.  On 17.2.08, in the framework of this proceeding, the litigants were given a period of 30 days to hold talks between themselves aimed at reaching an understanding.  On 18.3.08, the State announced that talks had been held between the representatives of the Ministry of Education and representatives of the ultra-Orthodox sector.  The message that was transmitted to the Ministry of Education in the various meetings was consistent: an education committee comprising nine rabbis, who officially represent the majority of the various streams in the ultra-Orthodox sector, operates within the ultra-Orthodox education system, and this committee holds the authority on questions of education.  The members of the committee decided that the policy of implementing the core curriculum in the yeshiva day schools is not acceptable; in the present circumstances, and in view of the way in which the proceedings in this petition are unfolding, they feel that promoting legislation to change the normative situation, and to obligate the State to fund the special institutions, including the yeshiva day schools, irrespective of their implementation of the core curriculum, is imperative.  In fact, by the time this petition was filed, a bill had already been submitted by Members of Knesset from the religious parties, the objective of which was to sever the connection between the requirement to adopt the core curriculum in the ultra-Orthodox schools and receipt of government funds.  It was conveyed to us that the Minister of Education objects to the bill and takes a grave view of the pedagogical and educational ramifications that would result from perpetuation of a situation in which significant parts of the population are not exposed to the content and values of the core curriculum.  Against this background, the Court was asked by the State to consider in a positive light the proposal for an exemption track, which the State deems preferable to the proposed legislation.

Transitional Arrangement

29.  In the course of the hearing on the petition, at the request of the State, we decided upon a transitional arrangement whereby the State will continue at this stage to fund the yeshiva day schools at the level of 55%, until the Court rules on the petition.

Decision

30.  The present petitions once again raise for discussion an especially important issue of social, legal and moral significance.  The question is – what is the extent of the obligation of the State to introduce a core curriculum into the various educational institutions in Israel, including the special institutions with a particular value system? Another, connected question is that of the extent of the obligation of the special non-official educational institutions to adopt a core curriculum at any particular level in the framework of the curriculum followed in their schools.  Another question derives from this question: is the State competent and authorized to transfer public funds to educational institutions that do not shoulder the yoke of the core curriculum, and that violate the obligation to incorporate it into the curricula that they follow; is there a necessary connection between granting government budgetary support to educational institutions, and between the extent to which they are bound by the fundamental values of general state education?

The Substance of the Core Curriculum

31.  The core curriculum was designed to expose the Israeli pupil, as such, and irrespective of the social sector to which he belongs, to basic educational content of a general, national and universal nature.  This content is the basic kernel that is common to and unites all the different streams in Israeli society, constituting a "common denominator for all the pupils at the level of concepts, content and values, and in thinking and learning skills" (National Education Program (Dovrat Report) January 2005, para. 1.7.3).  The objective of the core curriculum is to develop shared basic knowledge, skills and life values in the pupils that will enable each one of them to function in their independent lives in pluralistic Israeli society.  The core curriculum is based on a wide common denominator built on humanistic, universal values, and on Israel being a Jewish and democratic state.

The core studies were designed to achieve two main objectives: first – to constitute a link connecting all the factions and sectors of the nation, in order to create a basic common denominator, which is vital for creating the essential harmony between the various human strata of society; secondly – to provide each child in Israel with the basic tools to cope with life and to realize the right to equality of opportunity in developing his personality and independence in both childhood and adulthood.  The core curriculum includes Jewish studies and the humanities, civics, geography, Hebrew and English, mathematics and sciences, and physical education.

32.  Over many generations, specialized educational institutions in the ultra-Orthodox sector operated at a remove from the general content of state education in Israel, with religious studies alone constituting the core of education in their institutions.  Over many generations, State funds were transferred to specialized educational institutions, the curricula of which included no element of general education of a general-public nature.  The questions that arose around this reality were dealt with and ruled upon by this Court in the first proceeding, when it considered at length the question of the legality of the present arrangement.  The Court in its judgment dealt with two related matters – the extent of the obligation of the specialized institutions to incorporate the core curriculum into their framework, and the connection between the fulfillment of this obligation and the authority of the State to transfer state funds to such institutions.  In doing so, it defined the normative position in a clear and explicit fashion.  According to the judgment, the core curriculum is compulsory in the non-official institutions, including the recognized institutions and the exempt institutions.  State funding is closely bound to the level of implementation of the core curriculum in the educational institution, and will be granted at a level similar to that level of implementation.  The State is not authorized to transfer state funds to an educational institution that does not apply the core curriculum at all.  It may transfer such funds only in direct proportion to the level of implementation of the curriculum.  According to the judgment, the said principle, insofar as it relates to state funding, applies to both the non-official recognized institutions and to exempt institutions.  It is derived from the explicit provisions of the statutory law relating to recognized institutions and drawn from the general principles of equality in relation to receipt of state funds that apply to exempt institutions as well by virtue of s. 3A of the Budgetary Foundations Law, and by virtue of the foundations of the system. 

33.  The present petitions are, therefore, an additional, later link in the fundamental judicial decision of this Court in the judgment in the first proceeding on the said issues.  We are standing today on ground that has already been tilled; a complete normative model has already been drawn up on this subject.  Even though the present petitions once again present the issues from the aspect of fundamental principles, they are primarily concerned with the question of the extent of application of the judgment in the first proceeding, which settled definitively the fundamental questions under discussion.

The focus of the decision confronting us is, therefore, on the aspect of application of the judgment in the first proceeding, which is found at the kernel of the petitions before us.  We will say something on the theoretical aspect of the said questions, due to their special importance to the individual and the community in relation to imparting basic educational values to each pupil in Israel as such; to the fashioning of the image of Israeli society in the present and the future; and to ensuring the existence of maintaining the rule of law and proper government procedure in the State.

Application of the Judgment in the First Procedure

34.  The basic tenets of the rule of law are that "when a judgment has been handed down, it must be upheld in word and in spirit" (per President Shamgar in HCJ 5711/91 Poraz v. Chairman of the Knesset [3], at p. 308).  The obligation to comply with judgments is one of the basic conditions upon which the rule of law in a democratic state is founded.  This obligation "arises from the law, and it is an expression of the need to regulate the life of society according to basic norms that allow for the existence of an organized framework in which the law prevails" (ibid).  If the judgments of the courts are not obeyed, the principle of the rule of law is undermined and the societal order breaks down; each person does as he pleases, and the distance between the rule of law and anarchy is a hair's-breadth.

35.  Non-compliance with the judgment of the court by a citizen is a grave manifestation of a violation of the rule of law.  Infinitely more serious is the non-compliance with a judgment on the part of one of the State organs.  Indeed, "the obligation to obey a judgment of a competent tribunal, which applies to every person, applies with greater force to the state authorities" (Directive 6.1003 of the Directives of the Attorney General (of 15.6.03)).  Noncompliance by a state authority with a judgment of a judicial tribunal is one of the most serious and most worrying of the dangers that threaten the rule of law in a democratic state (A. Rubinstein and B. Medina Constitutional Law of the State of Israel (Vol.  1, Basic Principles, 2005) pp. 271-274).  The essential principle of the rule of law is based on the awareness that the State itself, like every citizen, is bound by the law and is not above it.  "The rule of law in its formal sense means that all entities in the State, whether people as individuals and corporations, or the branches of the State, are bound to act in accordance with the law, and action contrary to the law should encounter an organized societal sanction" (per Justice Barak in HCJ 428/86 Barzilai v. Government of Israel [4], at p. 621)).  A state in which the state authority takes the law into its own hands – complying with a judicial order against it if it wishes to, and ignoring it if it does not – is one in which the seeds of anarchy and mayhem are being sown, and which is developing a dangerous culture of the rule of force and arbitrariness.  A state authority is a fiduciary of the public, and "has nothing of its own" (HCJ 142/70 Shapira v. Bar Association Regional Council [5], at p. 331).  As such, it should serve as a beacon for respect of the law and the rule of law.  The eyes of the public are raised to the state authorities and public office holders.  Respect for the values of law, and development of a tradition of protection of the value of the rule of law are influenced by their conduct.  Disobedience of the law and non-compliance with judgments by a state authority involve a deep moral violation not only of the formal infrastructure of the foundations of the law and the regime, but also of the core of the tradition and the culture of proper government, that serve as an example of appropriate conduct of the individual in society.  In one case in which the State refrained from complying with a judgment at the set time, the Court said the following, which is appropriate for our case as well:

    'This reality of non-compliance with a judgment for a period of 7 months is a harsh reality in a law-abiding State when the State, which is responsible for preserving the rule of law, is itself complicit in the non-observance of the law and the decisions of the courts.

                                                                                                  …

    Beyond the aspect of the continuing suffering of the fowl, the phenomenon of non-compliance with a judgment by a public authority is deserving of severe criticism per se, in view of the deviation that it represents from the conduct of good government, and from basic constitutional norms that are rooted at the base of the democratic process … .  The law enforcement authorities did not act in an appropriate manner to implement at the set time the operative decisions of the judgment.  Even if they devoted time to examining alternative methods of fattening fowl, and believed in good faith that it would be possible to find a method that complies with the criteria that were set in the judgment, the time and dates for so doing were not up to them.  They were dictated by the judgment, and there was an obligation to follow them scrupulously (cf: HCJ 51/99 Shekem v. Director of Customs and VAT [6], at p. 125; HCJ 53/96 Tishlovet A. Aloni Ltd.  v. Minister of Industry and Commerce [7], at pp. 9-19; HCJ 3782/95 'Bezedeq' Amutah v. State of Israel [8], at p. 364).  It has often been said that the violation of court orders does not merely harm the protected interest upon which the judgment is based.  Non-compliance with orders is harmful to "the entire population, to the position of the judiciary and to the social infrastructure that leads to respect for the law", in the words of Justice Barak in CA 371/78 Hadar Lod Taxi Services Ltd.  v. Biton [9], para. 9; CrimApp 4445/01 Gal v. Katzovshvili [10], para. 8).  The obligation to comply with an order of the court is, therefore, a value that stands on its own, and the law enforcement authorities must be scrupulous in their compliance with court orders in the framework of their obligation to ensure compliance with the law in Israel (CrimA 578/78 State of Israel v. Issa [11], para. 3; CA 4603/90 Gvirtzman v. State of Israel [12], at p. 555)' (HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General [13]).

36.  The obligation of an individual or a state authority to comply with a judgment involves compliance in both letter and spirit.  It means compliance according to the literal formulation and the purpose.  As with every legal document that must be interpreted according to the text and the purpose, so too must a judgment be interpreted in accordance with its wording and with its purpose in view.  Correct, appropriate compliance with a judgment is not compatible with paying lip service to the formal text of a judicial order that is taken out of its context, or with adopting a by-pass route that does not lead to realization of the purpose.  The requirement of compliance with a judgment according to its purpose applies to every individual, and it obligates a public authority to an even greater extent.  This derives from the greater obligation as a state authority to uphold the rulings of the court in letter and in spirit, without embarking on a route of avoidance that does not fulfill the purpose that the ruling was designed to achieve.

The Main Points of the Judgment in the First Proceeding

37.  The judgment in the first proceeding examines in depth the question of the obligations of the State and the non-official educational institutions in respect of implementing the core curriculum to some extent or another in their institutions, and the connection between this obligation and the authority of the State to transfer government funding to these institutions.  The judgment notes that the purpose of the education system, which is funded by the State, is to achieve objectives specified in the State Education Law.  "Through education, the legislator seeks to instill into pupils the basic values of Israeli society, in order to provide them with the necessary tools both for success in their occupations and to fulfill their obligations and understand their rights as citizens of the State of Israel", says the judgment in para. 7, ibid.  Section 2 of the State Education Law defines the objectives of state education, which include imparting the principles of the Declaration of the Establishment of the State of Israel, and Israel's values as a Jewish and democratic state; studying the history of the Land of Israel, the Torah of Israel and the Jewish heritage; developing the pupil's personality and his skills; providing the basis for his knowledge; fortifying his independent thought, judgment and critical faculties; providing equality of opportunity and nurturing social involvement, development of an attitude of respect and responsibility of the person for his natural environment and for nature; and knowledge of the language, the culture and the heritage of different population groups, including the Arab population, while instilling an awareness of the equality of rights of all citizens of the State.

38.  According to the judgment, realization of these fundamental aims in Israeli education is achieved by imposing compulsory education by law upon every pupil of compulsory education age, by imposing an obligation to incorporate a "basic curriculum" into the program of studies, and by making funding of educational institutions contingent upon implementation of a core curriculum designed to promote the objectives of public education, at a relative level to be determined by the competent authority.  On the matter of government funding, the judgment discusses the distinction between three types of institutions.  Official institutions are those whose entire budget is funded by the State or one of its organs; non-official recognized institutions are those which have been recognized by the Minister in the framework of s. 11 of the State Education Law.  The State Education Regulations lay down the conditions for recognition of an educational institution, and prescribe the obligation to follow a basic curriculum, as well as the conditions for the level of budgetary support.  Under the Regulations, recognition and licensing of a recognized educational institution are dependent upon implementation of the core curriculum at the level of 75% of the hours of study in an official institution, and subject to certain reservations that were elucidated there.  The exempt institutions constitute a third track for children of compulsory education age.  Under s. 5 of the Compulsory Education Law, the Minister is authorized to order that a child or a youth of compulsory education age, who attends a non-recognized institution regularly, will be exempt from the obligations of regular study by virtue of s. 4 of that Law.  This exemption is conditional upon the existence of special reasons for the child not learning in a recognized institution, and upon his receiving a systematic education privately, to the satisfaction of the Minister; the exemption may also be granted if the Minister is convinced that the child is not capable of studying in a regular fashion in a recognized institution (s. 5 of the Compulsory Education Law).  As stated in the judgment – "the exempt institutions, too, receive funding from the Ministry of Education, but at a reduced level, and according to the new program of the respondents – at the level of 55%, which is conditional upon implementation of 55% of the core curriculum that has been prepared" (para. 7 of the judgment).  The judgment goes on to analyze the obligation to fund the studies of pupils of the 11th and 12th grades in secondary school (s. 6(a)(2) of the Compulsory Education Law, and s. 2(4)(b) of the Compulsory Education (Free Education Outside of an Official Educational Institution) Order, 5738-1978.

39.  The judgment also discusses the licensing requirement for every educational institution under the Inspection Law.  Granting of the license is conditional upon the fulfillment of certain physical conditions as well as implementation of an appropriate curriculum (s. 9 of the Inspection Law).  This provision authorizes the setting of conditions in relation to the curriculum as minimum conditions for licensing the school, irrespective of the question of its funding (para. 9 of the judgment).  An agreed assumption underlying the judgment is that –

       'The parties agree that a condition of receiving public funding is that the educational institution implement the basic curriculum as defined by the Ministry of Education ... .  The respondents are of the opinion that the complex and sensitive process of preparation of the core curriculum and its implementation in institutions that have previously enjoyed pedagogic autonomy should be allowed to run its full course (para. 10 of the judgment)'.

40.  The judgment relies, therefore, on an assumption that is acceptable to the State and compatible with the Law, whereby public funding of non-official educational institutions – whether recognized or exempt – is conditional upon some level of implementation of the core curriculum, as directed by the competent authority.

The discussion in that case was limited to the question of the timeframe that would be reasonable for putting the core curriculum into practice in the ultra-Orthodox educational institutions.  The State asked for a period of three additional years for this purpose, noting the complexity of the reform in the ultra-Orthodox sector and the ideological and practical difficulties its implementation would involve.

41.  In its decision, the Court discussed the requirement of following proper, egalitarian, and public budgetary procedures in the funding of public institutions that are not administered by State authorities.  This principle, so it determined, ensues from s. 3A of the Budgetary Foundations Law and from general legal principles applying to a public authority.  In this instance, government funding of educational institutions was intended to achieve the objectives of state education, and providing such funding without insisting on fulfillment of this condition constitutes a breach of authority on the part of the public body; it also involves a breach of trust vis-à-vis the public, and a violation of the obligation to extend equal treatment to educational institutions that comply with the objectives of the law and those that do not (para. 15 of the judgment).. 

42.  In the circumstances of the case, the Court deemed it right to allow the competent authority a period of three years to correct the problem in the educational institutions in the ultra-Orthodox sector, despite its breach of authority, and despite the fact that it was acting in breach of the law in providing funding for educational institutions that did not fulfill the objectives of state education.  Inter alia, the Court took into consideration the argument of the Ministry of Education that the program involved was a complex one, extending to some 26,000 pupils in the ultra-Orthodox educational institutions which until now had enjoyed pedagogic autonomy.  Aware of the drastic change that is planned for the curriculum in the general education system, and in view of the complexity of the task and the sensitivity required in its implementation, the Court accepted in its entirety the request of the State for an extension. 

In the end, the Court issued a decree absolute to cancel the government allocations to institutions teaching religious studies that did not fulfill the required conditions for the purpose of recognizing them as "recognized institutions", which would entitle them to monetary allocations, in accordance with the remedy sought in the petition.  Execution of the decree was deferred for three years, until the start of the 2007-8 academic year.

43.  The judgment covers wide ground, and its determinations regarding the prohibition on transferring public funds to institutions that do not fulfill the objectives of public education extend to all the non-official educational institutions, including the recognized institutions and the exempt institutions.  Although the operative decree applies to non-official recognized institutions, as requested in the petition, the determinations of principle in the judgment are much wider than the operative decree and they apply, both literally and according to their logic, to all public funding of any educational institution, of whatever type.

The attempt to isolate the contents of the operative decree from the other determinations in the judgment, and to deduce that it permits continued public funding of non-official educational institutions that are not recognized, such as exempt institutions, simply because they are not included in the actual wording of the decree absolute, is akin to detaching the purpose of the judgment from its formulation, and to taking things out of their true context.  The meaning of the alleged distinction between the operative decree and the general determinations in the judgment will be elucidated below.

The Response of the Ministry of Education to the Determinations in the Judgment and to the Set Time-Table

44.  From the responses of the Ministry of Education to the petitions, and from the position it adopted in Court, it is clear that the judgment of this Court in the first proceeding was not complied with on time, and has not been complied with yet, neither in letter nor in spirit.

With the opening of the 2007-8 academic year, the core curriculum was not introduced nor incorporated into the secondary day schools in the ultra-Orthodox sector.  Moreover, from the response of the State and from the arguments of the representatives of the ultra-Orthodox education sector it emerges that during the three years that elapsed from the time the judgment in the first proceeding was handed down, no real steps were taken by the Ministry of Education to incorporate the core curriculum in the yeshiva day schools in the ultra-Orthodox sector.  Up till the time of filing the petitions, no dialogue had taken place, and certainly no understandings or agreements had been reached between the Ministry of Education and the representatives of the ultra-Orthodox educational institutions concerning incorporation of the curriculum.  The announcement concerning the requirement to implement the core curriculum as a condition of continued government funding was delivered officially to the ultra-Orthodox educational institutions only at the start of the 2007-8 academic year, if not later, following the filing of these petitions.  It was not proven that there had been any real attempt on the part of the Ministry of Education to utilize the three year period it had been awarded under the judgment, at the request of the State, in order to aggressively promote the core curriculum in the ultra-Orthodox secondary education system for boys, and to fulfill the obligation and the responsibility of the Ministry of Education on this matter.  The 2007-8 academic year began, and even ended, without the core curriculum having been implemented, and without the appearance of even the first signs of real preparation for its implementation in the near future.  The picture that emerged in Court in relation to the awareness of the Ministry of Education and the Minister of Education of their duty to comply with the judgment in the first proceeding was deplorable.

The Plan to Convert the Status of the Recognized Educational Institutions to Exempt Institutions

45.  As if this was not enough.  The Ministry of Education, in its distress, sought a way out of the mess, and what was it?  A creative idea – the brainchild of the officials of the competent authority – was suggested.  The decree absolute issued in the judgment would be by-passed, and the non-official recognized institutions in the ultra-Orthodox sector would be allowed to continue receiving government funding even without implementing the core curriculum at any level, in the following original way: in September 2007 the Ministry of Education issued a public announcement whereby, beginning in the 2007-8 academic year, licenses and budgets would not be given to secondary educational institutions that do not teach at least 75% of the core curriculum.  The licenses of secondary educational institutions that do not meet the requirements of the core curriculum would be withdrawn.  At the same time, these institutions would be able to submit an application for a temporary exemption by virtue of s. 5 of the Compulsory Education Law, so that its pupils would not be in violation of the requirement of regular attendance at a recognized institution.  The applications could be submitted until 30.1.07.

In its oral pleadings, the State clarified that institutions that were granted the said exemption would continue to operate as exempt institutions and to receive state funding, even though the core curriculum would not be incorporated at any level into their programs of study.  The State explained this step by saying that the operative decree in the judgment in the first proceeding prohibits continued funding of non-official recognized institutions that have not adopted the core curriculum of the Ministry of Education.  Hence, from the moment that these institutions change their status from non-official recognized institutions to exempt institutions, then, magically, the operative decree of the judgment does not apply to them, and it is possible to continue funding them as exempt institutions at the level of 55%, even though they in no way comply with the requirement of teaching the core curriculum.

46.  On the factual level, the secondary schools for boys in the ultra-Orthodox sector rejected the idea of becoming exempt institutions for their own reasons, due to the concern that such a step would lead to a reduction of the financial support from the present level of 75% to a level of 55%, and due to the concern that changing their status to that of exempt institutions would adversely affect other support that they receive from other entities.  Even though it became evident that the step of changing from recognized institutions to exempt institutions was not at all practical, it reflects a problematic, jarring position on the part of the Ministry of Education in relation to its attitude to the judgment in the first proceeding, and to its obligation to comply in good faith with court orders, as expected and required of a state authority.

47.  The policy adopted by the Ministry of Education in allowing a recognized institution to change its status to that of an exempt institution in order to continue receiving government funding without adopting the core curriculum seems inexplicable, in the following senses:

First, it stands in clear contradiction to the rulings in the judgment in the first proceeding, both in letter and in spirit.  These rulings, which point to a direct link between government funding and implementation of the core curriculum in non-official educational institutions, relate explicitly to all the non-official educational institutions that receive state funds.  These rulings apply, without exception, to both recognized and exempt institutions.  The State itself declared in Court in the first proceeding that its funding of the exempt institutions at the level of 55% is conditional upon incorporation of the core curriculum in these institutions, to an extent that it determines.  The fact that the operative decree in the judgment relates, as requested in the petition, to non-official recognized institutions in the ultra-Orthodox sector, and does not extend to exempt institutions, is neither here nor there.  The obligation of the competent authority is to comply with the judgment according to its spirit, and not to latch onto the literal wording of the order in an attempt to find a by-pass route that is not compatible with the substantive determinations of the judgment and with the rationale underlying it.

Secondly, the technique devised by the Ministry of Education to enable the "mobility" of recognized institutions and their conversion to exempt institutions in order to allow them to be "released" from the obligation to incorporate the core curriculum into their frameworks, and at the same time to continue receiving government funding, is incompatible with the proper use of the authority to grant exemptions by virtue of s. 5 of the Compulsory Education Law.  The authority to grant an exemption was intended for special situations in which there is a substantive justification for exempting parents and children from regular attendance at a recognized educational institution.  Such an exemption is granted in exceptional circumstances, and it has side effects whereby a person who is not subject to the obligation of regular study is not entitled to free education, the State is not responsible for providing him with free compulsory education, and the parents do not have the right to choose a recognized educational stream (s. 5(b)(3) of the Compulsory Education Law).  Clearly, proper use of the power to exempt is totally incompatible with "mobility" of recognized educational institutions and their conversion to exempt institutions in order to rid them of the obligation to implement the core curriculum.  How much more incompatible it is with the continued transfer of government funds to such institutions, while they refrain from teaching the core curriculum as required by the policy of the Ministry of Education, and as required under the conditions included in the license of the school by virtue of the Inspection Law.  This policy will be discussed at greater length below.

Thirdly, the idea that it is possible to continue transferring public funds to exempt institutions that do not incorporate the core curriculum into their schools is contrary to general legal principles of equality in allocation of public funds.  The principle of equality anchored in s. 3A of the Budgetary Foundations Law, and the obligation to ensure equality as a value of a constitutional character, which has found expression in the case-law, are not in keeping with the continued funding of exempt institutions that do not fulfill the core requirements.  To permit such a situation would violate the requisite unity and equality between the various educational institutions in the various sectors, which are entitled to public funding on the basis of the fulfillment of equality-based conditions that are reflected in the adoption of the basic elements of public education and core curriculum in a school framework, at a level determined by the competent authority.

48.  Particularly disturbing about the position of the Ministry of Education is the absence of any commitment on its part to future compliance with the judgment.  The State in its pleadings relates to the process of "evolution rather than revolution", to future dialogue, undefined in time, with the heads of education in the ultra-Orthodox sector, to the attempt to influence the heads of the ultra-Orthodox community in a gentle way and without coercion, as if we were now at the beginning of the process of incorporating the core curriculum and not at the end.  In presenting its reasons to us, the Ministry of Education and the Minister of Education showed no sign of recognizing the gravity of the phenomenon of non-compliance with the judgment until now, and the lack of genuine commitment to future compliance was manifest.  The request for a deferment for an additional one- or two-year period that was raised before us was not accompanied by any real commitment to enforcing the curriculum, other than the utterance of some non-committal, amorphous statements lacking any real substance.  The position of the Ministry of Education in the current proceeding reflects a substantive and significant withdrawal from the position that it adopted in the previous proceeding, and a reversal on the commitment it made then to correct the flaw in its actions over the years in transferring funds to ultra-Orthodox educational institutions without insisting on the link between this funding and incorporation of the core curriculum into their schools.  The position of the Ministry of Education contained no assertion of a change in its professional policy in relation to the obligation to implement the core curriculum in all the licensed educational institutions.  The change occurred, so it would appear, on other levels that were external to the framework of the relevant factors that the competent administrative authority ought to have considered in the exercise of its authority – factors that were alien to constitutional obligations, to reasonability and equality in the exercise of an administrative power; considerations which were not compatible with the duty of trust of the authority vis-à-vis the public, and which are not guided by the basic principles governing the allocation of public funds; considerations which ignored the basic obligation of the public authority to comply with judgments of a high judicial tribunal.

49.  In these circumstances, the competent authority’s non-compliance with the judgment is extremely significant.  The ramifications of such conduct extend beyond the issue under discussion in this proceeding, for all its importance.  They touch on the hard core of the rule of law and the obligations of good governance that apply to a state authority.  They have an effect on the normative-moral scheme underlying the idea of separation of powers, and the obligation of the ruling bodies to respect the authority of other bodies.  They convey a worrying message to the public at large and to the Israeli citizen as an individual.  In these circumstances, judicial intervention and granting the main remedies sought in the petitions before us were warranted.

50.  This judgment could have been concluded on this point, and action taken as warranted by the circumstances described above.  However, the importance of the substantive issue involved in this proceeding – imparting core values in education to all sectors of the population – justify dwelling somewhat on the legal and moral aspects of the substantive issue, including the existing link between the commitment to the core education and the matter of public funding for educational institutions, continuing directly from the determinations of the judgment in the first proceeding and in the spirit of the judgment.

Rights and Obligations in Education in Israel in Relation to the Individual and the Public

51.  The right to education has been recognized in our law as a basic right granted to every person (HCJ 11163/03 Chief Surveillance Committee for Arab Affairs in Israel v. Prime Minister of Israel [14]; HCJ 2599/00 Yated v. Ministry of Education [15], at p. 834).  The right to education was guaranteed in the Declaration of Independence, and it is grounded in various international conventions that Israel has ratified or to which it is a party, and in conventional international law (s. 26 of the Universal Declaration of Human Rights (1948); s. 13 of the International Covenant on Economic, Social and Cultural Rights (1966); ss. 28 and 29 of the Convention on the Rights of the Child (1989); Y. Dinstein, "Cultural Rights", 9 Israel Yearbook on Human Rights (1979) 58; HCJ 4363/00 Upper Poriah Committee v. Minister of Education [16], at pp. 213-215).  The right to education is entrenched in various Israeli statutory provisions (Y. Rabin, The Right to Education (5762-2002), at p. 301 ff.).  This right is not new to us; rather, it is deeply embedded in the values of Judaism and in the heritage of Israel (Yated v. Ministry of Education [15], at p. 842; Movement for Quality Government v. Knesset [2]).  The crucial importance of the right to education lies in the indispensability of education for the realization of human rights as an individual and for the expression of a person's human autonomy, as a key element of a person's personality and abilities, providing him with the capability of dealing with matters and the possibility of realizing the equal opportunities in the society in which he lives in youth and in adulthood.  The right to education impacts on a person's other basic rights, such as the freedom of expression and the freedom of occupation; realization of the right to education is intended to achieve societal objectives.  Education constitutes a connecting link between the different and varied sectors of society, and an essential bridge for the building of a harmonious social fabric.  Education is an important vehicle for promoting liberal democratic values.  It is an essential condition of self-realization of the individual, and for the existence of normal life in society (see Justice Or in HCJ 1554/95 "Friends of Gilat" Association v. Minister of Education and Culture [17], at pp. 24-25). 

52.  The right to education is a complex right.  It contains an aspect of human rights, as against which stands a "human obligation" that must be realized within the framework of compulsory education.  Compulsory education by virtue of the law applies both to the individual and to the State, which must allocate resources to maintain a free education system, and to oversee the practical realization of the right to education and the obligations it entails.  The realization of few human rights is compelled by law.  The right to education is one such right.

53.  The right to education from the point of view of the individual is interwoven with the right of parents to raise and educate their children in accordance with their world-view and beliefs, as a natural right which is theirs by virtue of the natural connection between themselves and their children (President Shamgar in CA 2266/93 Anon.  v. Anon.  [18], at pp. 235-236).  In view of the special role of education in shaping the face of the individual and society, the State is responsible not only for enforcing and overseeing the implementation of compulsory education in all sectors, but also for regulating directly and by means of licensing conditions the substantive content of education, and the basic values that are imparted through this content in all educational institutions.  Realization of the right to education is, indeed, in the hands of the child and his parents; at the same time, the State bears an obligation to ensure the teaching of basic educational values that are common to all in order to maximize social harmony and to prepare all children in Israel to become citizens with shared rights and obligations.  These two aspects of rights and obligations in education were discussed by Justice M. Elon in HCJ 421/77 Nir v. Be'er Yaakov Local Council [19], at p. 265:

       'Two basic rights-obligations exist with respect to the matter of educating the young generation: first – the right-obligation of the parents to provide their offspring with suitable education, and their view-outlook on the question of what is suitable education is undoubtedly of great significance; and the second – the right-obligation of the State, through its institutions that are authorized for this purpose, to assure the imparting of appropriate education in an organized and planned fashion as determined by law, and this right-obligation, too, is extremely important and significant.'

54.  Education, in addition to its importance as a substantive human right, carries great weight from the point of view of society as a whole.  "Education shapes the face of society and determines its image, not only from the point of view of the gains in knowledge and expertise that are acquired, but also in fashioning the ethical and moral basis that characterizes it" (HCJ 6914/06 National Parents' Organization v. State of Israel [20]).  Education creates a bridge between different cultures, ways of life and outlooks, and enables the building of a foundation for common and fruitful social life between different sectors of the population within the boundaries of one country (Friends of Gilat v. Minister of Education and Culture [17], at p. 24; Y. Rabin, at pp. 73-79).

55.  A natural tension is liable to arise between the rights of parents to provide their children with education according to their world view, and the obligation of the State to enforce compulsory education and to ensure the imparting of basic pedagogic values to every child in Israel in every sector of the population.  Parents of children of compulsory school age may prefer education that is built upon values and beliefs that are not compatible with the basic values of society and the regime in Israel.  Tension is liable to rise where the parents belong to an ethnic-cultural minority, and they seek to preserve their personal autonomy by imparting the heritage of their special culture through the educational framework and maintaining communal life according to their beliefs and life-style.  The particularity of the minority group may be reflected in religious belief that becomes combined with the right to freedom of religion (Anon.v. Anon.  [18], at pp. 232-233).  This tension is linked to a more general tension that exists in law between the rights and obligations of parents vis-à-vis their children, and the obligation of the state to ensure the welfare of the child and his rights (Anon. v. Anon.  [18], at p. 237).  The accepted starting point in Israel, as in other democratic states, is that the said tension must be resolved by respecting the autonomy of the family to choose the educational line that it desires for its children, while at the same time recognizing the authority of the State, and at times its obligation as well, to intervene in this autonomy for the sake of protecting the child's welfare and his rights, and to achieve the general social objective of creating a common denominator of basic educational values that unite all members of society (Anon. v. Anon.  [18], at p. 238).  In the field of education, the State is authorized, and even obligated, to ensure that the basic educational values are imparted to each child, no matter who, in order to prepare him for adulthood and to allow him to realize his personality and his abilities in society.  This is also essential for the purpose of shaping normal life in society overall. 

56.  International conventions that entrench the right to education have adopted the guiding principle whereby the right of parents to choose the educational line that they wish for their child according to their selection must be respected; this right, however, is subject to the minimal requirements that the state sets with a view to respect for human rights and basic freedoms, and in order to realize every person's potential to take an active part in society (art. 26 of the Universal Declaration on Human Rights (1948); art. 13 of the International Covenant on Economic, Social and Cultural Rights (1966); art. 6 of the Convention on the Rights of the Child (1989); art. 5(1)(c) of the Convention Against Discrimination in Education; Rabin, at pp. 166, 185).

Basic Educational Curriculum – General

57.  Against the background of the existing tension between the right of the individual to education, which can be realized through educational content that is determined according to the wishes of the parents, combined with the public interest in imparting basic educational content that is common to all pupils irrespective of sector, was born the need to formulate a basic educational curriculum, determined by the State.  This basic curriculum – the core curriculum – was designed to achieve a balance between the opposing values.  On the one hand, its contents are designed to impart common values to all the children of Israel in all the sectors, to constitute a connective link between them, and to instill in them values that are important for the shaping of their personalities and that contribute to societal harmony.  On the other hand, this curriculum must be limited in scope, and it must focus on the most important things so that the parents are left with enough breathing space in which to realize their autonomy to choose the desired educational track for the child.  In this, the core curriculum reflects a merging and balancing between the value of respect for the personal autonomy of the individual in choosing the educational stream he wants, and the need to impart minimum norms of general education, designed to ensure that every child in Israel is exposed to basic educational and pedagogical norms that should be the legacy of every citizen of the State, irrespective of world view, religion or belief.  This balance aims to combine the needs of the individual and the needs of the public, with reciprocal concessions on the part of each.

58.  The need for a core curriculum is especially evident where the cultural and ideological distance between the different sectors of the population is particularly great.  Here more than anywhere it is necessary to create a common base of principles that will enable these sectors to live together in one human society.  This need becomes greater in a state that absorbs immigrants, such as Israel, which is characterized by a mosaic of different cultures and sectors of society, with varied cultural backgrounds, and is particularly applicable in the context of isolated minority groups, as Prof. Radday says:

       'The autonomy of a sub-group or of parents on matters of education cannot be unlimited and it is not a license for limiting the potential of the child to achieve full personal maturity.  The educational responsibility towards children in society does not belong to the community or the parents alone; rather, it is shared between them and the liberal state' (Frances Radday, "Religion, Secularism and Human Rights"  Makom Lemahshava Basha'ar 7 (2000) 26; Y. Rabin, at pp. 156-160). 

On the other hand, we must bear in mind that in regard to minority groups with their own cultural and religious identities in particular, the balance is likely to be found in limiting the content of the core curriculum to the bare minimum necessary to achieve general educational purposes, while respecting the freedom of such groups to impart their particular educational values to the pupils of that sector.

59.  The great importance of teaching a core curriculum throughout the whole educational system, including the private schools, is recognized and accepted in many places in the western world.  Thus, for example, in England and in many states in the USA, the requirement to teach a core curriculum is accepted even in private schools.  In England, the Education Act, 1944 recognized the right of parents to educate their children in accordance with their wishes in independent schools, subject to the provision of "efficient and suitable instruction" (ss. 71 and 76 of the Act).  In R. v. Secretary of State for Education and Science Ex Parte Talmud Torah Machzikei Hadass School, CO/422/84, The Times, 12 April 1985 (Q.B.), the English court considered the appropriate balance between the authority of the State to require the provision of a minimum general level of education for every pupil in the State, and the right of parents to choose the desired educational track for their children in the context of a private school of the ultra-Orthodox Jewish stream.  The Court ruled that in the case of religious minority groups, the State must attribute considerable weight to the wishes of parents to educate their children in accordance with their beliefs.  At the same time, the State is entitled to make minimum demands regarding education and curriculum with which each school must comply, regardless of its character.  The State, in such circumstances, must focus on the requirements that are essential for obtaining a suitable standard of education, and for imparting basic educational values, while demonstrating sensitivity towards the traditions of the minority group, and it must not turn the private school into a type of state school.  To achieve this balance, the school that was the object of the petition was required to change its curriculum in line with the requirements of the official Inspector (see also Rabin, at pp. 437-438).  Under the Education Act, 2002, the Minister of Education must make regulations prescribing the conditions required of independent schools in various areas, including the quality of the education they provide (s. 157(1) of the Act).  By virtue of this section, the Education (Independent School Standards) (England) Regulations were enacted in 2003.  In the area of pedagogy, the Regulations determined that the curriculum of a school must include a suitable teaching program that would provide, inter alia –

       'Full time supervised education for pupils of compulsory school age, which gives pupils experience in linguistic, mathematical, scientific, technological, human and social, physical and aesthetic and creative education' (reg. 2(a)).

60.  In the USA, many States have obligated private schools to include a core curriculum in their programs (see: Eric A. DeGroff, "State Regulation of Nonpublic Schools: Does the Tie Still Bind?" 2003 BYU Educ. & L.J.  363, 392 (2003); see also the analysis of the regulation of private schools, by state, on the website of the American Ministry of Education (www.ed.gov/pubs/RegPrivSchl/chart2.html)).  The United States Supreme Court recognized the constitutional right of parents to educate their children according to their belief.  However, it has stressed repeatedly that this does not entail a negation of the authority of the state to set reasonable requirements for private schools, including a requirement to include certain general contents in the framework of the curriculum.  Thus, for example, it ruled in the case of Central Dist. No. 1 Bd. Of Ed. v. Allen, 392 U.S. 236, 245-247 (1968):

'A substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction.  Indeed, the State's interest in assuring that these standards are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes.'

An interesting case, similar to ours, was heard by a Federal Circuit Court in New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940 (1st Cir. 1989).  That case dealt with a law of the State of Massachusetts requiring private schools to teach "[r]eading, writing the English language and grammar, geography, arithmetic, drawing, music, the history and Constitution of the United Stated, the duties of citizenship, health education, physical education, and good behavior".  The Baptist church objected to the authority of the State to interfere in the curriculum of its school, and argued that this was contrary to the freedom of religion guaranteed in the First Amendment to the American Constitution.  The Circuit Court dismissed the position of the Church, saying that –

'[t]he Free Exercise Clause does not prohibit the School Committee from enforcing, through appropriate means, a state law that requires 'approval' of the Academy's secular education program [because] the state's interest in making certain that its children receive an adequate secular education is "compelling"' (pp. 943-944) (emphasis added).

61.  Thus, from comparative legal sources we learn that the requirement to follow a core curriculum in education is accepted in the Western conception of legal values, and is perceived as being warranted, even in relation to private schools of cultural-religious minority groups.  The character of these schools justifies special consideration on the part of the State of the particular cultural needs of different sectors, but it does not exempt the schools from their obligation to teach their pupils the general moral and social values upon which the state is founded.

The Core Curriculum in Israeli Education Law

The Core Curriculum in Israeli Education Law and Its Implementation as a Mandatory Requirement in the Various Educational Institutions

62.  The establishment of a core curriculum in Israeli education is designed to guarantee that common basic principles of education are imparted to all Israeli children in all sectors of society.  The implementation of the core curriculum in the education sectors is derived from the State Education Law, from the licensing conditions of schools under the Inspection Law, and from the link in the education laws and in the law in general between incorporation of the core curriculum and the entitlement of an educational institution to government funding.  The curriculum in official educational institutions includes a compulsory "basic curriculum" as specified in s. 1 of the State Education Law:

'"curriculum" means – a curriculum prescribed by the Minister for the official educational institution with a view to attaining the object stated in s. 2, and includes the "basic curriculum" to be prescribed by the Minister as an obligatory program for every such institution.'

The objectives of the curriculum, including the core curriculum, are included in the primary objectives of state education specified in s. 2 of the State Education Law.  These objectives combine educating to basic values upon which the State is founded as a Jewish and democratic state, alongside development of the child's personality and abilities as an individual. 

63.  Section 11 of the State Education Law authorizes the Minister of Education to implement the core curriculum as a mandatory requirement in non-official recognized educational institutions as well.  This provision grants the Minister of Education professional discretion as to the scope of inspection of these institutions and the level of government funding.  The section provides as follows:

'The Minister may, by regulations, prescribe a procedure and conditions for the declaration of non-official institutions as recognized educational institutions, the introduction therein of the basic program, the management and supervision thereof, and for the assistance of the State towards their budgets, if and to the extent that the Minister decides on such assistance' (emphasis added).

64.  Soon after the enactment of the State Education Law by the Knesset, the Minister of Education published the State Education Regulations.  Regulation 3 specifies the conditions for declaring an educational institution as a recognized institution; one of these conditions is the existence of a basic curriculum (reg. 3(a)(1a) of the Regulations).  According to reg. 3(c), the basic curriculum in a recognized institution will be taught at the level of 75% of what is accepted in an official institution, subject to reservations:

'The basic curriculum in a recognized institution will constitute 75% of the total hours of study in an official educational institution, but the Minister may authorize different levels, provided that the pupils in the institution achieve, in tests and exams, the level of achievement in an official educational institution.'

65.  The Inspection Law requires educational institutions that are not State-owned to be licensed.  Operating an educational institution without a license constitutes a criminal offence (s. 33 of the Inspection Law).  The Inspection Law applies to the majority of non-official educational institutions – whether recognized or exempt – apart from a limited number of exceptions specified by law, which are of no concern here.  One of the main conditions for granting a license to a school is the maintenance of an appropriate standard of education with regard to "the curriculum, the time-table and the duration of studies … in accordance with the standard and with the norm in the type of school to which the application relates" (s. 9(a)(1) of the Inspection Law).  In giving his decision on this matter, the Director General must consider "the type of school in question and the age and needs of the pupils – all in accordance with rules made by the Minister of Education and Culture, in consultation with the Education and Culture Committee of the Knesset" (s. 9(b) of the Law).  Accordingly, the Inspection of Schools (Criteria for Granting Licenses) Rules 5731-1971 (hereinafter: "Inspection Rules") were enacted.  According to these Rules, the Director General, when deciding on the existence of a satisfactory standard,  from the aspect of the curriculum, in an educational institution seeking a license, must take into account the "programs, the schedules and the notes issued by the Director General that are in force with respect to that type of school at the time of submission of the application for a license" (s. 1 of the Inspection Rules).

66.  Under s. 28(a) of the Inspection Law, the Minister of Education is authorized to require of an educational institution, as a condition of granting it a license, that the education it provides be based on the principles of state education:

'The Minister of Education and Culture may issue to the license-holder directions which, in the opinion of the Minister, are necessary in order to ensure that the education provided at the school is based on the principles specified in s. 2 of the State Education Law, 5713-1953.'

In the course of the first proceeding, the Ministry of Education created a fixed procedure for the purpose of submitting an application for licensing educational institutions according to the Inspection Law (Fixed Licensing Procedure, 5765).  On the pedagogic level, the Procedure states that a condition for licensing an educational institution is teaching the core curriculum, i.e. –

'teaching the basic curriculum (the core curriculum) as determined by the Ministry of Education' (s. 15 of the procedure for submitting an application for licensing educational institutions in the 2008-9 school year, and s. 14 of the procedure for 2004-5, as cited in para. 16 of the complementary state response of 23.7.04 in the petition of the Teachers' Organization in the first proceeding).

67.  This policy of the Ministry of Education has not been changed; it remains in force and binding as before.  Educational institutions are required to comply with the policy of the Ministry of Education applying to the modes of operation of educational institutions, as expressed in the Bulletins of the Director General of the Ministry (s. 17 of the Fixed Licensing Procedure).  The Ministry of Education did indeed issue a string of Director General's Bulletins prescribing the obligation to implement the core curriculum in educational institutions, first in primary schools ("Core Curriculum for Primary Education in the State of Israel", 2764/1(a), 3.1-22), and recently in secondary education as well ("Core Curriculum in Secondary Education